IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR155/21
In the matter of:
BONGANI TSOTETSI APPELLANT
and
THE STATE RESPONDENT
ORDER
On appeal from : Madadeni Regional Court (Magistrate MT Lubuzo sitting as court
of first instance):
The appeal against conviction and sentence is dismissed.
JUDGMENT
Pietersen AJ (Moodley AJ concurring):
Introduction
2
[1] The appellant was convicted in the Regional Court, Madadeni, on one count
of rape and sentenced to 18 years’ imprisonment. The appellant successfully applied
for leave to appeal against both conviction and sentence to this court.
Conviction
[2] The State presented evidence before the court a quo that during 2013 and at
or near Blaauwbosch, the appellant raped the complainant, a boy aged seven years
at the time, by inserting his genital organ into the complainant’s anus without the
consent of the complainant. The complainant testified that on the day of the incident ,
he was walking in the street to his grandmother’s house and, whilst on his way, the
appellant grabbed him, took him to an unknown residence, closed his mouth and
raped him by inser ting his penis into his anus. When the appellant was done , he
threatened to kill the complainant if he told anyone of the incident.
[3] The complainant further testified that after the incident , he could not sit as his
anus was sore and he did not tell anyone about the incident until his mother
confronted him about his strange conduct on 5 April 2013. He then proceeded to tell
his mother about the rape. The complainant’s mother took him to the police station
where the charge was laid and, on the next day, 6 April 2013, the complainant was
examined by Dr Balkanska.
[4] Dr Balkanska testified that she did not observe any signs of physical trauma
and there were no injuries recorded insofar as the anal examination was concerned.
However, she also testified that the absence of any injuries does not necessarily
exclude penetration.
[5] The central issue which occupied the attention of the court a quo was whether
the appellant was correctly identified by the complainant. This issue arose as the
investigating officer initially approached the appellant’s brother in the presence of the
complainant in order to establish whether the brother was the assailant. The
complainant in order to establish whether the brother was the assailant. The
complainant testified that he initially identified the wrong person, being the
appellant’s brother, but he indicated that when the brother had removed his
sunglasses, he realised t hat it was not the person who raped him because he
noticed that the brother had only one eye. The complainant was , therefore, certain
3
that he had correctly identified the appellant , even though he initially identified his
assailant as the appellant’s brother. It is important to note in this regard that it is
common cause that the incident took place in broad daylight.
[6] The appellant testified that he did not know the complainant at all and he saw
the complainant for the first time when he was approached by the investigating
officer on the day of his arrest. The appellant denied all the allegations against him.
[7] The complain ant testified as a single child witness. The court a quo
accordingly correctly found that his evidence must be approached with caution. In
particular, so the court a quo reasoned in its judgment, the court needs to guard
against two elements, being imaginativeness and suggestibility. The critical question
remains whether the evidence of the complainant is trustworthy.
[8] In examining the evidence before it , the court a quo identified a number of
unsatisfactory features in the appellant’s version. In this regard , the appellant was
unable to explain how he knew that the grandmother he referred to in his evidence
was the grandmother of the complainant. Further, during the cross-examination of
the complainant, it was put on behalf of the appellant that the person who took the
complainant from the street was wearing sunglasses and a hat with which the
complainant agreed. The appellant failed to explain how he knew that the perpetrator
was wearing sunglasses and a hat , when the complainant’s testimony was silent on
this aspect. Further, a crucial aspect was when the investigating officer indicated in
his evidence that the complainant had told him that the perpetrator was limping and
the appellant testified that ‘indeed, I was limping ’. This aspect of the appellant
limping was only raised by the appellant and not by the investigating officer.
[9] None of the evidence of the defence witnesses raised any doubt about the
[9] None of the evidence of the defence witnesses raised any doubt about the
identification of the appellant or that the residence in question belonged to the
appellant. The possibility that a stranger might have entered his property and used
his residence for the purpose of raping the complainant is therefore far -fetched, so
the court a quo found.
4
[10] In argument before us , the appellant’s counsel argued that all the allegations
against the appellant remain in dispute as his defence was one of a bare denial. The
court is therefore tasked with considering all the evidence, including whether or not
the complainant was anally penetrated. The appellant argued that the complainant
was only seven years old at the time of the incident and, being a single witness, the
cautionary rule dictates that the evidence of the complainant must be approached
with caution. It was submitted that the objective medical evidence does not support
the complainant’s version that he was anally penetrated and the probabilities thus
should favour the finding that, in the absence of visible trauma to the complainant’s
anus, there was no penetration.
[11] The appellant also argued that the identity of the perpetrator was in dispute
and in applying the cautionary rule, it cannot be found that the complainant had
properly identified the appellant, as it was dark inside the residence. It was submitted
that young children are susceptible to suggestion and the cautionary rule thus
dictates that the appellant’s testimony in this regard should not be accepted.
[12] Counsel for the State referred to R v Mokoena1 where the court held:
‘… the uncorroborated evidence of a single competent and credible witness is no doubt
declared to be sufficient for a conviction by Section 284 of Act 31 of 1917, but in my opinion
that section should only be relied on where the evidence of a single witness is clear and
satisfactory in every material respect.’
[13] It was submitted on behalf of the State that the evidence of a single child
witness requires that the court evaluates the evidence with caution and the evidence
must be clear and satisfactory in every material respect. 2 The State also submitted
that the cautionary rule is to be applied as a rule of practice and not law and to be
that the cautionary rule is to be applied as a rule of practice and not law and to be
applied but with the ultimate requirement remaining proof beyond reasonable doubt
and that courts must guard against their reasoning becoming stifled by formalism.3
[14] The State submitted that the complainant was an impressive witness and that
he gave a clear and coherent account of the events as they unfolded on the day. The
1 R v Mokoena 1932 OPD 78 at 80.
2 S v Teixeira 1980 (3) SA 755 (A) (Teixeira).
3 S v Artman and Another 1968 (3) SA 339 (A) at 341C-D.
5
complainant withstood cross -examination without any material deviation from his
evidence and his evidence must survive the application of the cautionary rule and
therefore be accepted, so it was submitted . The State further submitted that the risk
of an incorrect identification was eliminated , as the appellant was known to the
complainant by sight for some time prior to the incident , as the appellant had done
work for the complainant’s grandmother. The complainant pointed out the appellant’s
brother as his assailant but corrected himself almost immediately. The State
submitted that the complainant therefore accurately identified the appellant and that
the court a quo correctly rejected the appellant’s version as false. It was submitted
that the State had proven its case beyond a reasonable doubt against the appellant
and he was correctly convicted.
[15] The court a quo correctly found that the count of rape rests on the evidence of
a single witness and that the complainant’s evidence therefore has to be viewed with
caution and circumspection.4 In R v Nhlapo5 it was held that:
‘. . . a cautionary rule of the kind mentioned may well be helpful as a guide to the right
decision. It naturally requires judicious application and cannot be expected to provide, as it
were automatically, the correct answer to the question whether the evidence of the [State]
witness should be accepted as truthful an accurate.’
[16] In conclusion on the issue of a single witness, in Sauls6 it was held that:
‘. . . the exercise of caution must not be allowed to displace the exercise of common sense.’
[17] In assessing the evidence , the c ourt a quo took into account that the
complainant was seven years old at the time of the incident and remarked that there
may have been some discrepancies in the complainant’s evidence , particularly in
respect of the identification of the assailant . However, it found that these
respect of the identification of the assailant . However, it found that these
discrepancies were not sufficient enough to reject the complainant’s evidence in its
totality. In this regard, it was held in S v Cwele:7
4 S v Sauls and Others 1981 (3) SA 172 (A ) (Sauls) at 180; and ZF v S [2016] 1 All SA 296 (KZP)
para 34.
5 R v Nhlapo 1953 (1) PH H11 (A) at 17.
6 Sauls at 180G-H.
7 S v Cwele and Another [2012] ZASCA 155; 2013 (1) SACR 478 (SCA) para 19.
6
‘The State must therefore satisfy the court, “not that each separate fact is inconsistent with
the innocence of the [appellants], but that the evidence as a whole is beyond reasonable
doubt inconsistent with such innocence”.’
[18] I agree with the court a quo that the evidence of the complainant was
trustworthy, even if the cautionary rule is applied. I am satisfied that the court a quo
correctly rejected the evidence of the appellant as false and that the complainant
accurately identified the appellant as the assailant. The risk of an incorrect
identification was eliminated as the appellant was known to the complainant by sight
for some time prior to the incident and the appellant had done work for the
complainant’s grandmother.
[19] In S v Ngcamu ,8 the court found that there was no reason why the witness
would not be able to identify someone who is well known to him . In the
circumstances of that matter, the witness and the appellant had worked together until
one week before the robbery, occasionally as a crew in the same vehicle. The
identification was therefore found to be reliable. I am similarly satisfied that there is
no reason why the complainant would not be able to identify his assailant in the
present circumstances.
[20] I am also satisfied on the totality of the evidence that the court a quo was
correct in rejecting the appellant’s version as false even though the objective medical
evidence does not support the complainant’s version that he was anally penetrated .
The probabilities still favour the finding that the version of the appellant could not
reasonably possibly be true.
[21] Insofar as the court a quo’s findings of fact an d credibility are concerned, a
court of appeal will not ordinarily depart from such findings unless they are vitiated
by irregularity or unless an examination of the evidence reveals that they are patently
wrong. Ultimately, the trial c ourt has the advantage of seeing and hearing the
wrong. Ultimately, the trial c ourt has the advantage of seeing and hearing the
witnesses and is in the best position to determine where the truth lies.9
8 S v Ngcamu and Another [2010] ZASCA 70; 2011 (1) SACR 1 (SCA) para 11.
9 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 –706; S v Francis 1991 (1) SACR 198 (A) at
204c–f; S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e-f.
7
[22] I am unable to find any misdirection in the court a quo’s consideration of the
facts and the conclusion that the State had proved the rape beyond reasonable
doubt. In the result, the appeal against the conviction must fail.
Sentence
[23] The jurisdiction of a court of appeal to interfere with t he sentence imposed by
a trial court is limited. In S v Bogaards10 Khampepe J stated as follows:
‘Ordinarily, sentencing is within the discretion of the trial court. An appellate court's power to
interfere with sentences imposed by courts below is circumscribed. It can only do so where
there has been an irregularity that results in a failure of justice; the court below misdirected
itself to such an extent that its decision on sentence is vitiated; or the sentence is so
disproportionate or shocking that no reasonable court could have imposed it. ’ (Footnotes
omitted.)
[24] In S v Malgas 11 Marais JA held that when a court imposes a sentence in
respect of an offence referred to in the Criminal Law Amendment Act 105 of 1997 , it
is no longer 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.’
The emphasis, he held, was on ‘the objective gravity of the type of crime and the
public’s need for effective sanctions against it’.
[25] It was argued on behalf of the appellant that the sentence imposed by the
court a quo was shockingly inappropriate and ought to be interfered with on this
basis. The appellant submitted that the court a quo failed to place sufficient weight
on the fact that he was 25 years at the time of sentencing and a first offender. To
determine whether there is any substance to the argument, it is necessary to
determine whether there is any substance to the argument, it is necessary to
consider the three sets of interests that are required to be balanced in the sentencing
process.
10 S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC) para 41.
11 S v Malgas 2001 (1) SACR 469 (SCA) para 8.
8
[26] In assessing whether an appropriate sentence was imposed on the appellant,
it is necessary to consider the crime, the offender and the interests of society. 12 It
has further been held in S v Rabie13 that:
‘[t]he main purposes of punishment are deterrent, preventive, reformative and retributive’.
[27] In Maila v S the court held:14
‘The appellant infringed the right to dignity and the right to bodily and psychological integrity
of the complainant, which any democratic society (such as South Africa) which espouses
these rights, including gender equality, should not countenance for the future of its children,
their safety and physical and mental health. In S v Jansen, the court stated it thus:
“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. . . . The community is entitled to demand that
those who perform such perverse acts of terror be adequately punished and that the
punishment reflect the societal censure. 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 aspires to be an open and democratic one
based on freedom, dignity and equality, the very touchstones of our Constitution.”’ (Footnote
omitted)
[28] Further, in S v Chapman the court held:15
‘Women in this country are entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go
and come from work, and to enjoy the peace and tranquility of their homes without the fear,
the apprehension and the insecurity which constantly diminishes the quality and enjoyment
the apprehension and the insecurity which constantly diminishes the quality and enjoyment
of their lives . . . The Courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community: We are determined to protect the equality,
dignity and freedom of all women, and we shall show no mercy to those who seek to invade
those rights.’
12 S v Zinn 1969 (2) SA 537 (A) at 540G-H.
13 S v Rabie 1975 (4) SA 855 (A) at 862A-B.
14 Maila v S [2023] ZASCA 3 para 58.
15 S v Chapman 1997 (2) SACR 3 (SCA) (Chapman) at 5c-e.
9
[29] The court’s reasoning in Chapman can, of course, also be applied to children
in the position of the complainant.
[30] The court also held in S v Rabie16 that ‘[p]unishment should fit the criminal as
well as the crime, be fair to society, and be blended with a measure of mercy
according to the circumstances’.
[31] In S v Banda and Others17 it was held the court will have to take into
consideration the accused’s personal circumstances, the interests of society as well
as the seriousness of the offences.
[32] The court a quo considered the personal circumstances of the appellant. The
court a quo placed sufficient weight on the fact that h e was 25 years old at the time
of sentencing and he has one child who was one year old at the time. The
appellant’s highest educational was passing grade nine at school. It was considered
that the appellant was a first offender and he was employed by Eskom. The court a
quo also took into account the interest s of society and held that the members of the
community look up to the court s for protection and they expect the courts to impose
adequate sentences in cases of this nature. The court a quo found that when
considering the age of the appellant and the fact that he is a first offender , the
imposition of the minimum sentence of life imprisonment would be disproportionate
and the appellant was sentenced to 18 years’ imprisonment.
[33] The court a quo also considered the complainant’s circumstances and the
pain and humiliation suffered by the complainant. Even though no injuries were
noted by the doctor who examined the complainant, the court took account of the
fact that the complainant was traumatised by the incident. There was unfortunately
no victim impact statement in the matter.
[34] The court a quo found that a custodial sentence was the most appropriate
sentence in the circumstances. I can detect no misdirection in the c ourt a quo ’s
sentence in the circumstances. I can detect no misdirection in the c ourt a quo ’s
approach to sentence. The offence, for the reasons cited above, is of a particular ly
16 S v Rabie 1975 (4) SA 855 (A) at 862G-H.
17 S v Banda and Others 1991 (2) SA 352 (BG) at 356E-F.
10
serious nature. The personal circumstances of the appellant have properly been
weighed against the seriousness of the offence and the interests of society. The
carefully cons idered sentence imposed by the c ourt a quo is found to be
proportionate to ‘the crime, the criminal and the legitimate needs of society’.18
[35] In the circumstances, no basis has been established for this c ourt to interfere
with the sentence imposed b y the c ourt a quo. The appeal against sentence must
therefore also fail.
Order
[36] In the result, I make the following order:
The appeal against conviction and sentence is dismissed.
________________
PIETERSEN AJ
________________
MOODLEY AJ
18 S v Malgas 2001 (1) SACR 469 (SCA) para 22.