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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
NOT REPORTABLE
Case No: CA 19/2024
Regional Court case no: RC/469/2018
In the matter between:
JOSEPH BUTIKI MOWANDI
Appellant
and
THE STATE
Respondent
Coram: Hendricks JP and Petersen ADJP
Heard: 19 March 2026 (On the papers)
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are
deemed to be 10h00 on 24 March 2026.
Summary: Criminal law – Appeal against conviction – Condonation –
Late noting of appeal by unrepresented incarcerated appellant condoned
where explanation plausible, administrative failure at clerk of court
established, and interests of justice favour examination of the merits –
Housebreaking with intent to rape and rape – Conviction on both counts
confirmed – Grounds of appeal framed in entirely general terms – No
specific misdirection by trial court, no credibility finding identified as
erroneous, and no particular improbability in the State's version articulated –
Compelling convergence of DNA, medico-legal, and crime scene evidence –
DNA profile of appellant recovered from blood on wardrobe door of
complainant's bedroom at statistical probability of one in 29 tril lion – Only
reasonable inference consistent with proved facts being that appellant was
present at scene and committed the offences – Absence of fresh genital
injuries medically consistent with penetration of sleeping victim offering no
physical resistance – Standard for circumstantial evidence satisfied – R v
Blom 1939 AD 188 applied – Appeal against conviction on both counts
dismissed.
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_____________________________________________________________
JUDGMENT
_____________________________________________________________
PETERSEN ADJP (HENDRICKS JP CONCURRING)
Introduction
[1] This is an appeal against conviction by the appellant, Joseph Butiki
Mowandi, who was convicted in the Regional Court for the Regional
Division of North West, held at Potchefstroom, of housebreaking with intent
to rape (count 1) and rape (count 2). He was sentenced, on 31 January 2020,
to eight years’ direct imprisonment, of which four years were suspended for
five years on conditions, re sulting in an effective custodial term of four
years. The appeal is brought in terms of s 309B of the Criminal Procedure
Act 51 of 1977.1
[2] The appeal serves before the present panel since the panel assigned by
the Judge President previously failed to deliver judgment timeously.
Background
[3] The events giving rise to the charges occurred during the early
morning hours of 3 September 2018 at House 1[...], Extension 11, Ikageng,
in the district of J B Marks. The complainant, L[...] B[...] T[...] (32 years of
age at the time), was sleeping in the main bedroom of that house together
with her boyfriend, Richard Phale Kalaote, who was the occupant of the
premises.
[4] According to the complainant ’s account, she was woken at
approximately 02h00 when she realised that a man was committing an act of
sexual penetration upon her. She initially assumed the person was her
boyfriend, but then discovered that her boyfriend was lying beside her. She
screamed, woke her boyfriend, retrieved a beer bottle, and struck the intruder
on the head. The intruder fled.
[5] The appellant was charged with two counts. Count 1 alleged
housebreaking with intent to rape , alleging that he unlawfully and
intentionally broke into and entered the house of Richard Phale Kalaote with
intent to rape, read with ss 262(1) and 261 of the Criminal Procedure Act.
Count 2 alleged rape in contravention of s 3, read with ss 1, 2, 55, 56A, 57,
58, 59, and 60 of the Criminal Law (Sexual Offen ces and Related Matters)
Amendment Act 32 of 2007 (the Sexual Offences Act), read with s 51(2) and
Schedule 2 of the Criminal Law Amendment Act 105 of 1997 and sections
256, 261, and 270 of the Criminal Procedure Act in that he unlawfully and
intentionally committed an act of sexual penetration upon the complainant
by inserting his genital organ into her vaginal canal without her consent.
[6] After a full-blown trial, the magistrate convicted the appellant on both
[6] After a full-blown trial, the magistrate convicted the appellant on both
counts and , on 31 January 2020, sentenced h im to eight years ’ direct
imprisonment, of which four years were conditionally suspended for a period
of five years, resulting in an effective custodial sentence of four years.
1 Act 51 of 1977 (‘the CPA’).
The evidence
[7] The documentary record before this court comprises the J88 med ico-
legal report, the biology (DNA) report under s 212 of the Criminal Procedure
Act, and the crime scene investigation album with sworn statement and
sketch plan.
The J88 medico-legal report
[8] Forensic nurse Ennie Xoyiya, attached to the Thuthuzela C are Centre
at Potchefstroom, examined the complainant at 10h45 on 03 September
2018. The complainant had been smelling of alcohol at the time of the
medical examination. The J88 was admitted by consent in terms of s 213 of
the Criminal Procedure Act. The e xamination revealed no visible external
physical injuries. The general examination recorded the complainant's
clothing as dirty and noted the smell of alcohol. Mentally, she was recorded
as stable, calm, and cooperative.
[9] The gynaecological examination recorded all external structures ,
including the clitoris, frenulum, urethral orifice, para -urethral folds, labia
majora, labia minora, posterior fourchette, fossa navicularis, and perineum,
as intact. The hymen was recorded in a remnant configuration. No fresh
tears, scarring, bleeding, bruising, or increased friability were observed. The
cervix was visualised, showing erosion and a thick white discharge. The anal
examination revealed no injuries. The forensic specimens collected under
evidence collection kit seal number 16D1AD6022JJ were delivered to the
investigating officer. A urine pregnancy test was negative.
[10] Forensic nurse Xoyiya ’s conclusions were: (a) the absence of visible
physical injuries does not exclude violent behaviour; and (b) the absence of
fresh genital injuries does not exclude sexual penetration. These medical
opinions are both scientifically sound and well -recognised in our courts. 4
The absence of physical injury is a common finding in adult victims who are
penetrated without resistance, whether due to sleep, incapacitation, or fear,
and carries no probative weight in the appellant’s favour.
The DNA evidence
[11] Warrant Officer Motjile Oduetse Chriswell Makapan, a forensic
analyst at the Biology Section of the Fore nsic Science Laboratory, Arcadia,
Pretoria, deposed to a s 212 affidavit in respect of laboratory numbers
342470/18 and 346317/18. His qualifications include a National Diploma in
Biotechnology (majoring in Microbiology and Biochemistry) from the
Tshwane University of Technology, twelve years ’ experience in biological
sciences, and extensive in-house training in serological and DNA techniques.
The affidavit and its appendix explaining the STR profiling methodology
were admitted in terms of s 212 of the Criminal Procedure Act.
[12] The following findings are material. Two swabs constituting Exhibit
B2 (kit seal number 14DCAA4368) were collected from possible human
blood stains at the crime scene. Swab B1 from the duvet on top of the bed in
the main bedroom, a nd swab B2 from the left door of the wardrobe in the
main bedroom. A reference DNA sample from the accused (barcode
13DBAC1501, case number PA5002283242) was submitted for comparative
analysis. The DNA profile of the reference sample reads into the mixture
DNA result obtained from Exhibit B2 (swab B2). The most conservative
estimate of the DNA result from that swab, calculated across all possible
contributors and all four main population groups in South Africa (Black,
Caucasian, Coloured, and Asian), is 1 in 29 trillion persons. The donor of the
reference sample was excluded as the donor of DNA on the J88 evidence
collection exhibits (seal number 16D1AD6022, case number
PAD001972580).
[13] The DNA evidence is of very considerable probative weight. A
statistical probability of one in 29 trillion effectively identifies the appellant
as the individual whose blood was deposited on the wardrobe door in the
main bedroom. The only reasonable explanation consistent with this finding
is that the appellant was physica lly present in that room and suffered a
is that the appellant was physica lly present in that room and suffered a
bleeding wound there, as the complainant ’s account of striking the intruder
on the head with a beer bottle explains.
[14] The circumstance that the appellant ’s DNA was not recovered from
the J88 evidence collection kit, that is, from the complainant ’s person, is not
exculpatory. The absence of male DNA from a complainant ’s person is a
common finding and does not negate sexual penetration. 2 This is particularly
2 S v Ferreira 2004 (2) SACR 454 (SCA) para 22; S v NMO 2013 (2) SACR 177 (WCC) para 11.
so where ejaculation does not occur, where the examination is delayed (here,
approximately eight hours), or where the complainant has bathed or urinated
in the interim, a possibility not excluded on the record, as the J88 records
that the complainant urinated after the incident.
The crime scene evidence
[15] Constable Lomile Sarel Moremi of the North West Provincial Crime
Scene Investigation Team attended the scene on 06 September 2018 at the
request of Lt Colonel T Maine. His sworn statement, key to photographs,
and sketch plan, forming Exhibit A in the court a quo, are part of the record
before this court.
[16] The sketch plan and photographic album establish the following
material features. Point A on the sketch plan, identified to Constable Moremi
by the complainant, indicates the window on the exterior of the house
through which the intruder is alleged to have gained entry. The photographs
(Photos 1 –9) show that this window provides access to the dwelling’s
interior. Point B indicates the bed in the main bedroom where the
complainant and her boyfriend were sleeping before the incident and where
the incident too k place (Photos 9 –13). Possible human blood stains were
observed and photographed on the duvet (Photos 12–13) and on the left door
of the wardrobe in the main bedroom (Photos 22 –25), from which the DNA
evidence swabs were collected. A face cloth with possi ble human blood was
found inside a plastic bag in a drawer of the kitchen unit and was sealed as
Exhibit FR1 (Photos 52 –56), consistent with an intruder who, after being
struck on the head, made his way through the house. Point C on the sketch
plan indicat es the bed where Mr. Dan, identified as a friend of the
complainant’s boyfriend, was sleeping in the adjacent room during the
incident (Photos 40–43).
[17] The physical evidence at the scene coheres precisely with the
complainant's account. Entry through the window. The incident occurred in
complainant's account. Entry through the window. The incident occurred in
the main bedroom. The intruder was struck on the head, depositing blood on
the duvet and wardrobe. The intruder fled towards and through the kitchen.
The grounds of appeal
[18] The appellant ’s grounds of appeal, as set out in the application for
leave to appeal dated 20 July 2022, are confined to the conviction. No
substantive grounds directed at the sentence are articulated. The grounds of
appeal against conviction may be distilled as follows. The court erred in
finding that the State had proved guilt beyond a reasonable doubt. The court
erred in finding there were no improbabilities in the State ’s version. The
court failed to analyse or evaluate the evidence of the State witnesses
properly. The court failed to consider the improbabilities inherent in the
State’s version properly. The court erred in rejecting the appellant’s evidence
as not reasonably possible while accepting the evidence of State witnesses,
notwithstanding material contradictions . The court erred in hold ing against
the appellant that there were contradictions between his evidence and the
facts put to witnesses in cross -examination, and in giving undue weight to
minor discrepancies in the defence case.
The test on appeal against conviction
[19] The test on appeal against a conviction is not whether this court would
have reached the same conclusion on the facts as the trial court, but whether
the trial court was correct in its assessment of the evidence. An appellate
court will not lightly interfere with th e factual findings of a court a quo that
had the advantage of observing the witnesses. It will do so only where the
trial court committed a material misdirection in its assessment of the
evidence, applied incorrect legal principles, or reached a conclusion that is
not reasonably supported by the evidence as a whole.3
[20] Where a trial court’s reasoning appears on the court record and has not
been included in the documents placed before this court on appeal, it is
incumbent upon an appellant to identify, with sufficient particularity, the
specific finding or reasoning to which exception is taken. The grounds of
specific finding or reasoning to which exception is taken. The grounds of
appeal in this matter are framed entirely in general terms. No specific
witness is identified as lacking credibility. No particular improbability in the
State’s version is articulated . No factual finding of the magistrate is
identified as demonstrably incorrect. This court is accordingly unable to
3 S v Hadebe 1997 (2) SACR 641 (SCA) at 645e –f; S v Liebenberg 2005 (2) SACR 355 (SCA) para 15; S v
Toms [1990] 2 All SA 222 (A) at 229.
identify any specific misdirection on the part of the trial court from the
grounds as formulated.
The convictions
[21] Notwithstanding the general terms in which the grounds of appeal are
framed, this court has considered the documentary record in its entirety. The
evidence against the appellant on the rape count is compelling.
[22] The single most powerful piece of evidence is the DNA result. The
appellant’s DNA profile was found in the blood on the wardrobe door of the
main bedroom, the very room in which the rape is alleged to have been
committed. The probability that this occurred by chance or by innocent
explanation is one in 29 trillion. This evidence places the appellant inside the
main bedroom at or around the time of the incident. The presence of blood at
that location is explicable only based on the complainant’s account, that she
struck the intruder on the head with a beer bottle, cau sing a bleeding wound,
and is wholly inconsistent with any innocent presence.
[23] The complainant ’s account is entirely consistent with the physical
evidence. Entry through the window, the incident in the main bedroom,
blood deposited on the duvet and war drobe, and the face cloth with blood
found in the kitchen drawer, all cohere with the narrative of an intruder who
entered the sleeping household, committed the rape, was struck on the head,
and fled. This is a compelling convergence of direct and circumst antial
evidence.
[24] The standard applicable to circumstantial evidence requires that the
proved facts be consistent with the hypothesis of guilt, and that they be
inconsistent with any other reasonable conclusion. 4 On the facts established
by the record , and particularly in light of the DNA evidence, no reasonable
alternative explanation for the appellant ’s blood being found in the
complainant’s bedroom presents itself. The appellant ’s presence at the scene
is proved beyond a reasonable doubt.
[25] The J88 findings provide consistency with the complainant’s version.
[25] The J88 findings provide consistency with the complainant’s version.
The absence of fresh genital injuries is medically consistent with the
penetration of a sleeping adult victim who offers no physical resistance. The
4 R v Blom 1939 AD 188 at 202 –203 per Watermeyer JA; S v Van der Meyden 1999 (1) SACR 447 (W) at
449h–450a; S v Reddy 1996 (2) SACR 1 (A) at 8e–f.
medical conclusion that such absence does not exclude penetration is a
professional opinion that the trial court was entitled to accept.
[26] As regards count 1, housebreaking with intent to rape is established if
it is proved that the accused broke into and entered the premises with the
intent to commit a rape. The evidence of entry through the wind ow, a point
of entry identified by the complainant and corroborated by the sketch plan
and photographs, satisfies the breaking-and-entering requirement. The
subsequent commission of the rape establishes the intent. The conviction on
count 1 is accordingly in order.
[27] The grounds of appeal do not disclose any basis upon which this Court
can interfere with the convictions. The appeal against conviction on both
counts must fail.
Conclusion
[28] The appeal against conviction on both counts is dismissed.
Order
[29] In the result, the following order is made:
1. Condonation for the late prosecution of the appeal is granted.
2. The appeal against conviction on count 1 (housebreaking with
intent to rape) is dismissed.
3. The appeal against conviction on count 2 (rape) is dismissed.
_____________________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
I agree.
_____________________________
R D HENDRICKS
JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
Appearances
For the appellant: Mr E Setumo
Instructed by: Legal Aid South Africa
Mahikeng
For the respondent: No appearance