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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A246/2025
Khayelitsha Regional Court No: RCA57/2023
In the appeal between:
SIMPHIWE MDEKAZI Appellant
and
THE STATE Respondent
Heard: 13 March 2026
Judgment: 16 March 2026
Summary: Criminal appeal from the Regional Court against conviction and
sentence for kidnapping and rape.
ORDER
1. The appeal against conviction and sentence is dismissed , with the
sentences to run concurrently.
JUDGMENT
Handed down by email to the parties on 16 March 2026
KANTOR, AJ:
1. The appellant was charged with the rape of a nine year old girl, in contravention
of section 3 of Act 32 of 2007 , and her kidnapping , on or about 13 October
2022 at or near Khayelitsha. The appellant was then 44 years old.
2. The charge sheet averred that section 51(1) of Criminal Law Amendment Act
105 of 1997 (the CLA) was applicable to the charge of rape , the complainant
having been a child. If found guilty, this mean t that a minimum sentence of life
imprisonment would follow unless the court found that there were exceptional
circumstances not to impose such a sentence.
3. The charge sheet averred that section 51(2)(c) of the CLA was applicable to the
charge of kidnapping, being one of the offences in Part IV of Schedule 2 to the
CLA, the appellant being a first offender . If found guilty, this meant that a
minimum sentence of five years would follow unless the court is satisfied that
substantial and compelling circumstances exist which justify the imposition of a
lesser sentence than the sentence prescribed in those subsections, it shall
enter those circumstances on the record of the proceedings and must
thereupon impose such lesser sentence . Part IV of Schedule 2 of the CLA
applies to “Any of the following offences, if the accused had with him or her at
the time a firearm, which was intended for use as such, in the commission of
such offence.”
4. The appellant was legally represented, at the trial and in this appeal.
5. On 27 March 2025, t he appellant was found guilty on both counts and
sentenced to life imprisonment on the charge of rape and five years
imprisonment on the charge of kidnapping , under case number RCA57/2023 in
the Khayelitsha Magistrates’ Court. The accused was declared unfit to possess
a firearm. The accused’s personal details were ordered to be entered into the
sexual offences register.
6. The appellant appeals against both the conviction and the sentence.
The evidence of the complainant
7. The complainant was nine years old at the time. During the evening of 13
October 2022, she went to a shop near her home to buy chips. There she met
the appellant.
8. The appellant knew where she stayed. He did not take her there. When it was
put to her that he will say that he did, she say that would be a lie.
9. She did not want to go with him but he took her and put her inside a car. She
did not know that he was going to take her to his house. It was put to her that
the appellant took her to his home and went inside the house with her, with
which she agreed. There was nobody else at the house. He locked the door
and put on loud music . He undressed her and told her that if she tells anyone
about this he will kill her but she did not believe him. He told her to lie on the
bed, he undressed himself, he lay on top of her and inserted his penis into her
vagina. She said that it hurt and she cried. He then stopped on his own. He had
been on top of her for a short time. They then went to sleep and the next
morning he took her home at about 06h00.
10. It was put to her that the appellant will say that he did not put his penis in her
vagina. She responded that he was lying.
11. It was put to her that the appellant took her to her home “around after 6 in the
morning” with which she agreed.
The evidence of the L[...] V[...] N[...] (‘Ms N[...]’)
12. She has been the foster mother of the complainant since she was three years
old.
13. She has known the appellant for a long time. He used to walk past her house.
14. On the night of 13 October 2022, t he complainant went out at about 18h00.
When she did not come back, they started searching for her and even went to
the police station to report her being missing. She locked the house and she
and others , including her older children , searched for the complainant. While
they were out the gate was locked and the appellant could not enter the
property because the gate is very high. They “ … left at six and it was seven,
eight and at nine o’clock we all came back.”
15. She testified that when the complainant was brought home early in the morning
of 14 October 2022 , “ … the child at that stage was narrating telling me that
Simphiwe took her and locked her in his house. I then took her to the police
station.” She added that the complainant told her that “ When they got to his
house, switched on the music and gave her the chicken and he got on top of
the bed together with her.”
16. Since the night of 13 October 2022, the complainant has been affected: “… the
child’s behaviour has taken a drastic change because she is even a fighter at
school and she has turned into a tomboy as well … There is a lot that has
happened to her because even at school, she is playing rugby .... at church,
they tried to give her some counselling sessions and when I go to church, she
changes the dress code and start to wear pants.”
The evidence of Dr Letoya Pepper
17. Dr Pepper is a clinical forensic examiner who performs medical legal
examinations, including on victims of sexual offences.
18. At 13h45 on 14 October 2022 , she examined the complainant at Khayelitsha
District Hospital. The complainant had “… redness and tenderness of her labia
minora, the stibial and paraurethral … [indistinct]. There was a sexual assau lt
evidence collection kit that was used of which the seal number is 20D7AD588.
… Clinical findings may be suggestive of blunt genital trauma. ” She said that a
penis is an example of a blunt object which can cause blunt genital trauma. A
finger or any other blunt object could also have caused this.
19. She said that there was no significant swelling and she noted it to be more
minor injuries. She testified that the complainant told her that the person who
did this to her “… was Simphiwe, a male, plus minus 30 or 40 years of age.”
20. The injuries to be expected from penetration of the complainant by an adult
male would depend on the force that was used. These “… injuries are in
keeping with an irritation or frictional force that was … [indistinct] of this child’s
genital injury. So, for example, me rubbing my hands together is creating a
frictional or rubbing force. ” Just touching, however, would not have cause the
injuries.
21. The hymen itself had no injuries but that does not mean that the complainant
was not penetrated. As she explained when it was suggested to her “… that the
J88 does not stipulate that the victim was sexually penetrated? ”: “ No, I
disagree with that because the child has internal injuries. So, when we talk
about penetration , the thought years ago was that penetration of the genital
region refers to penetration of the hymen but that is not it. Once you penetrate
the labia, that is then penetration.”
22. She asked the complainant and her foster mother whether the former had had
any com plaints regarding her private parts and she was answered in the
negative. For example, in the case of an infection, one would have been able to
see other signs of the infection. She testified that “… if there was an infection
pre-dating this alleged incident, then at least one would be seeing a discharge
on the child and this child presented with no genital discharge.”
23. She testified that that there were no pre -existing issues: “… the patient did not
have any sympto ms or any findings on examination to suggest that she had
any pre-existing issue with her genital … [indistinct].” She also testified: “Okay,
basically it may be suggestive of a blunt object having cause d these genital
injuries. Of course, like I had mentioned there are other causes for example if
the child had had an infection or if the child had had any other complaints, for
example if they had an allergic reaction to the underwear that they were
wearing or the hygiene products that they were using but that was excluded.”
24. She explained further: “ The redness and tenderness that was noted of the
child’s genital injury, is not specific to blunt force penetration. There are other
things that can cause redn ess and tenderness of a genital region. However,
based on the examination findings and the history obtained from the child and
the parents those other causes were then excluded.”
The evidence of the appellant
25. He knows the complainant and Ms N[...] and they live in the same
neighbourhood as him , “ She does not stay far from where I stay. Very, very
much close.”
26. On 13 October 2022 he had been drinking brandy and vodka with his cous ins
from approximately 18h00 to 21h00. He then went home and saw that there
was no electricity. As he “… was coming out of the house [the complainant] was
by the sh op.” He said that this “… was around to 22:00 because it was after
21:00 or past 21:00 when I left my place. ” He noticed that she was crying. She
told him that her place was closed or locked and she cannot get inside and that
she does not know what to do.
27. He then took her to her home but the big gate and the small gate were closed.
28. She got tired and he put her on his shoulders. When they got to his house he
met a police officer called Yanga who stays across the street. Yanga asked him
why he did not take the complainant home. He said that he “… did go to her
place and even now I am going to walk past there or I am going to via there. ”
He then went to the complainant’s home again and things had not changed.
29. He did not know that the complainant was a girl.
30. He gave her something to eat , let her watch te levision and she slept in the bed
while he slept on the couch.
31. He was the only one in the complainant’s presence at his home throughout the
night.
32. He woke the next morning and took the complainant home at about 06h00. He
says that he told N[...] that he had tried to bring her home the previous night but
the place was locked. N[...] said she was very grateful for that and he then left.
33. He attended the same Apostolic church as N[...], in which men and women,
boys and girls, sit separately. The church also has a very strict dress code for
boys and girls. He claimed that he has not known the complainant for a long
time and he only knows N[...]’s other children and has known N[...] for a long
time. He also said that N[...] did not go to church with the children.
34. He said that N[...] blames him for the death of her son. H e does not have a
problem with her.
Evaluation
35. The complainant left home at approximately 18h00. This was not contested.
36. The appellant was drinking until 21h00 with his cousins and then went home.
None of the cousins were identified or called as witnesses.
37. He then went home, saw there was no electricity and went to the shop where
he saw the complainant . This, according to him, “… was around to 22:00
because it w as after 21:00 or past 21:00 when I left my place. ” He claims that
he then went to the complainant’s home, but the gate was locked.
38. He saw Yanga at about 22h00 and claims that he said to him that he was going
to take the complainant to her house again, which he did, but it was still locked.
39. V[...] got home from looking for the complainant at about 21h00.
40. The appellant’s version starts to fall apart on the basic facts:
40.1. First, with the complainant having not been challenged on leaving her
house at 18h00 to go to the shops, this meant that his version depends
on the complainant having been out for four hours. His version
therefore does not tie up with the complainant leaving her house at
18h00, but the complainant was not challenged on this
40.2. Second, it would be very strange for a nine -year old girl to be going to
the shops at 22h00.
40.3. Third, the appellant’s vers ion that he took the complainant back to her
home at 22h00 after seeing Yanga, is not compatible with N[...]’s
unchallenged testimony that she got back from looking for the
complainant at about 21h00.
41. There are numerous other problems with the appellant’s version.
41.1. When asked why he did not check with the neighbours whether he could
leave the complai nant with them , he said: “It never crossed my mind …
That did not cross my mind. I did not, I did not think of that. ” When
pressed in cross -examination that this was not credible, he said “ I still
maintain that did not cross my mind. ” That is simply not credible for
someone at night trying to drop a young child off.
41.2. He also did not take the complainant to the police station or leave her
with the policeman , Yanga, he met and knows. His explanation for not
giving the child to Yanga, the police officer who he knows and trust s, is
that “Yanga was sitting there with his friends, chilling. I did not want to
burden Yanga with a child that I personally picked up.”
41.3. The complainant’s home was close-by on the appellant’s version (“ Very,
very much close ”), but he does not try again after his alleged second
attempt.
41.4. When Yanga asked him why he did not take the complainant home he
said that he “… did go to her place and eve n now I am going to walk
past there or I am going to via there. ” Plainly this is what he or any
caring and reasonable person would have done. On his version, he did
so but things were still the same and no-one was there . Yanga was not
called as a witness. The appellant’s legal representative said that he
could not get hold of Yanga. No request was made for a postponement
or explanation given of what the appellant had done to locate him (he
lived across the street) or if he had even made any attempt at all.
41.5. Further, had he gone to the complainant’s house again, as he alleged, by
then it would have been 22h30 at the earliest. Ms N[...] had been home a
long time by then.
41.6. His version that he was not even aware that she was a girl is not
credible.
41.7. Keeping a nine year old girl overnight in his home without the knowledge
of her parents is a very strange thing to do.
42. On a general level the complainant’s evidence was consistent and appeared
satisfactory.
43. Her evidence as to the conduct complained of against the appellant was
detailed. It was also consistent.
44. In my view, the complainant’s evidence was detailed and cogent.
45. It was supported by the evidence of Dr Pepper , considered in detail above, to
the effect that she had blunt object trauma (which could be caused by a penis)
in her genital area and that any other cause, such as infection, could be
excluded. There was no basis in the evidence for any other object having been
the cause of the blunt object trauma in her genital area.
46. In terms of section 208 of the CPA “ … an accused may be convicted on the
single evidence of any competent witness.”
47. This is subject to the cautionary rule in respects of a single witness. In this
regard it was held as follows in S v Sauls and Others 1981 (3) SA 172 ( A) at
180EG (cited with approval on numerous occasions, the most recent by the
Supreme Court of Appeal of which I am aware being Nkomo and Others v S
(130/2022) [2024] ZASCA 61 (26 April 2024) at paragraphs 17 and 19):
“There is no rule of thumb test of formula to apply when it comes to a
consideration of the credibility of the single witness … The trial Judge will
weigh his evidence, will consider it s merits and demerits and, having done so,
will decide whether it is trustworthy and whether, despite the fact that there
are shortcomings or defects or contradictions in the testimony, he is satisfied
that the truth has been told . The cautionary rule … may be a guide to a right
decision but it does not mean “that the appeal must succeed if any criticism,
however slender, of the witnesses’s evidence were well founded”… It has been
said more than once that the exercise of caution must not be allowed to
displace the exercise of common sense.” [underling added]
48. I am satisfied that the complainant was a reliable witness and that the truth has
been told by her . In my view, h er evidence is not affected by the fact that she
was a single witness as to the acts and conduct complained of. I am therefore
of the view that the cautionary rule in this regard has no material impact on this
matter.
49. In addition, I do not consider the appellant to have been a credible witness for
the reasons set out above.
Conclusion on conviction
50. I am satisfied that the complainant was a reliable witness whose evidence is to
be accepted. I am also satisfied that the appellant’s version is not reasonably
possibly true for the reasons set out above.
51. Principles of Criminal Law 5ed by Johnathan Burchell defines kidnapping as
follows at 659: “ Kidnapping consists in unlawfully and intentionally depriving a
person of the liberty of movement and/or his or her custodians of their control. ”
This definition is effectively the same as what was proposed for child stealing
by Professor Hunt in the 1967 South African Law Journal at page 275 (cited
with approval in S v Blanche 1969 (2) SA 359 (W) at 360D) : “ child stealing
consists in unlawfully and intentionally depriving a person of liberty of
movement and/or his custodians of control. ” I am of the view that the facts of
the instant satisfy both of these alternatives (i.e. depriving a person of liberty of
movement and/or his or her custodians of control). Further in regard to children
in particular, see Burchell at 660 and PMA Hunt South African Criminal Law and
Procedure vol II: Common Law Crimes 3ed by J Milton (1996) Ch 28 IIIA.
52. It has been held that in certain circumstances kidnapping will not be established
even though a rape is, such as when the victim was with the perpetrator of her
own free will until the point when he raped her. The act of rape itself is then not
an act of kidnapping. See S v Egglestone (482/07) [2008] ZASCA 77; [2008] 4
All SA 207 (SCA); 2009 (1) SACR 244 (SCA) (30 May 2008) at paragraph 18:
“[18] It is also clear that the trial court also misdirected itself when it accepted L.’s
evidence that she had been kept at the Stables against her will. In arriving at this
conclusion the trial court ignored common cause evidence to the effect that L. ha d
come to the Stables voluntarily and had at no stage requested and/or demanded to
be taken home. There is also uncontested evidence that L. had a number of
opportunities to escape or simply walk away if she was so inclined but she did not.
Clearly the State had failed to prove beyond reasonable doubt that L. was kept at the
Stables against her will and was deprived of her freedom throughout her stay there.
The kidnapping conviction can therefore not stand.”
53. This does not apply on the facts of this matter: the kidnapping is established
because the version of the complainant has been accepted and on her version
because the version of the complainant has been accepted and on her version
she was taken by the appellant against her will and locked up in his home. The
kidnapping conviction therefore stands.
54. On the factual findings set out above, the offence of rape was established and
the conviction thereon should stand.
55. I am therefore of the view that the appeal against conviction should be
dismissed.
SENTENCE
56. In S v Malgas [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR
469 (SCA) at paragraph 12 it was held that, even in the absence of material
misdirection, an appellate court may yet be justified in interfering with the
sentence imposed by the trial court when the dis parity between the sentence of
the trial court and the sentence which the appellate court would have imposed
is so marked that it can properly be described as “shocking”, “startling” or
“disturbingly inappropriate”. This standard has been articulated diffe rently in
several cases, including the standard of whether the sentence “creates a sense
of shock”. Ultimately, the question is whether the court could reasonably have
imposed the sentence that it did (see for example S v Sadler 2000 (1) SACR
331 (SCA) at para 8, and S v Bolus and Another 1966 (4) SA 575 (A) at 581E-
G).
57. To reach an appropriate sentence, a court is duty -bound to consider the nature
and the seriousness of the offence that the accused has been found guilty of,
the personal circumstances of the accused as well as the interests of society –
what is often referr ed to as the triad of considerations (S v Zinn 1969 (2) SA
537 (A) at 540G).
58. Each case must be adjudicated on its own facts . It is incumbent upon a court in
every case, before it imposes a prescribed sentence, to assess, upon a
consideration of all the circumstances whether the sentence is proportionate to
the particular offence (S v Vilakazi [2008] 4 All SA 396 (SCA); 2009 (1) SACR
552 (SCA); 2009 (1) SACR 552 (SCA) at paragraph 15, Opperman v S [2010] 4
All SA 267 (SCA) at 278 ). Punishment imposed by a court should fit the
criminal, as well as the crime and be fair to society and blend ed with the
measure of mercy (S v RO and Another 2000 (2) SACR 248 (SCA) at
paragraph 30).
59. A court is also enjoined to take into consideration the main purposes of
punishment, namely retribution, d eterrence, prevention and rehabilitation. All
these must be accorded due weight in any sentence. As the SCA held in S v
RO at paragraph 30:
“Sentencing is about achieving the right balance or in more high -flown terms,
proportionality. The elements at play are the crime, the offender, the interests of
society with different nuance, prevention, retribution, reformation and
deterrence. Invariably there are overlaps that render the process unscientific,
even a proper exercise of the judicial function allow s reasonable people to arrive
at different conclusions.”
60. The complainant was a young child of nine years of age.
61. The complainant’s evidence and Ms N[...]’s evidence shows that the
complainant has been very negatively affected by th is experience in her
childhood.
62. The appellant has expressed no remorse.
63. The main aspects raised by the appellant in mitigation are an absence of
previous convictions, his age, employment, good health and that he helps out
his family financially.
64. In terms of section 51(1) and Schedule 1, Part 1, of the CLA, the rape of a child
attracts a minimum sentence of life imprisonment, unless there are substantial
and compelling circumstances that such a sentence is unjust.
65. In my view substantial and compell ing circumstances as contemplated by
section 51(1) of the CLA were not established. Aspects raised by the appellant
are standard in relation to sentencing. The facts of this matter do not constitute
exceptional examples of those standard aspects nor are the standard aspects
established to an exceptional degree.
66. Aggravating factors include the scourge of rape in our society, the effect on the
complainant indicated in her changed behaviour addressed in the evidence and
the age of the complainant.
67. The sentence in respect of the rape therefore does not fall to be adjusted on
appeal.
68. In regard to the kidnapping, a s mentioned, Part IV of Schedule 2 of the CLA
applies to “Any of the following offences, if the accused had with him or her at
the time a firearm, which was intended for use as such, in the commission of
such offence.” This does not apply in the instant matter because no firearm was
used, or intended to be used, in the commission of the offence.
69. Be that as it may, I do not believe that a sentence of five years for kidnapping a
child in the circumstances of this matter induces a sense of shock or is
inappropriate.
70. In my view , both of the sentence s are appropriate and they do not induce a
sense of shock.
71. The Court a quo did not indicate whether the sentences would run concurrently
or cumulatively. Nor did it indic ate the sequence in which they were to run, as
provided for in section 278(2) of the CPA. The default position in terms of
section 278 of the CPA is that they run cumulatively. I am of the view, however,
that the sentences should run concurrently and this will be reflected in the order
of this court.
72. I am therefore of the view that the appeal against the sentence should be
dismissed, with the sentences to run concurrently.
Order
73. In my view, the following order should be granted in this appeal:
73.1. The appeal against conviction and sentence is dismissed , with the
sentences to run concurrently.
_________________
A Kantor
Acting Judge of the High Court
I agree and it is so ordered:
_________________
C Fortuin
Judge of the High Court
Appearances
For the Appellant : Adv IM Sebueng
Instructed by Legal-Aid SA
For the Respondent : M Koti
Instructed by Director of Public Prosecutions
Western Cape