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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE CIRCUIT DIVISION, EAST LONDON)
CASE NO.: CC37/2025
In the matter between:
THE STATE
and
A[...] N[...] Accused
JUDGMENT
MOLONY AJ:
[1] The accused in this matter faces one charge of rape and one charge of
robbery with aggravating circumstances, it being alleged that on or about 29
December 2024 and at or near Dowu Location, Chalumna, East London, he
raped N[...] T[...] (’the complainant’) per vaginum and per anum, assaulted her
and took by force from her possession a wallet containing R250 in cash and
a key.
[2] The complainant was 73 years old at the time the alleged offences were
committed and is currently 74 years old. This means that, due to her age, a
guilty finding on the charge of rape would attract a discretionary minimum
sentence of life imprisonment, whilst the robbery, due to the presence of
aggravating circumstances, attracts a discretionary minimum sentence of 15
years imprisonment.
[3] The accused pleaded not guilty to the charges and no plea explanation was
tendered on his behalf.
[4] The following documents were handed in by agreement:
(a) A photograph album, containing photographs and a sketch plan of the
scene of the alleged offences, which was admitted as exhibit ‘A’.
(b) A certified copy of the complainant’s birth certificate, which was admitted
as exhibit ‘B’.
(c) The relevant J88 form, admitted as exhibit ‘C’.
(d) An affidavit in terms of section 212 of the Criminal Procedure Act (deposed
to by Jo-Anri Jacobs) in regard to a biology report, admitted as exhibit ‘D’.
[5] The state led the evidence of three witnesses, those being the complainant,
Sergeant Pinky Matyeni, and Dr Sinovuyo Bam (who examined the
complainant and completed the relevant J88 form).
[6] The accused was the only witness to testify in his defence.
[7] The following was common cause:
(a) The accused is the complainant’s nephew, being the son of the
complainant’s brother.
(b) On the evening of 29 December 2024 the accused, having attended a
traditional ceremony, visited the rondavel in which the complainant lived,
left to go to a tavern, then returned later the same night. It did not appear
to be in dispute that he had consumed some alcohol that day, however he
knew what was going on around him and the complainant viewed him as
sober.
(c) The rondavel in which the complainant lived c onsisted of one room which,
inter alia, contained 2 beds.
(d) Whilst the accused and the complainant were in the rondavel, some form
of altercation occurred, after which the accused left with the complainant’s
purse, which contained R250 in cash (and presumab ly the key referred to
in the robbery charge, although this did not appear to be of any particular
import).
(e) The complainant reported the matter to the police the following day,
alleging that the accused had raped her and robbed her of R250.
(f) The complaina nt, as a result of what occurred inside the rondavel,
sustained bruises and abrasions on her neck and chest, as well as a small
cut (noted as ‘oozing blood’ in the J88) on her right cheek.
(g) At some point thereafter, and after the accused had been arreste d, the
accused’s parents paid the complainant back the R250 taken.
(h) Prior to the incident in question the complainant and the accused had a
good relationship.
[8] The complainant testified that when the accused returned from the tavern on
the night in question he entered her rondavel and sat down on the second bed
in the rondavel. The complainant was, at the time, lying down on her own
bed. The accused proceeded to undress. He then got up and went to some
drawers, where he searched for something. He asked the complainant if she
was practicing witchcraft, to which she did not respond.
[9] The accused then jumped and grabbed her on the front of her throat. She
tried to scream and he forced 2 fingers into her mouth, searching for her
tongue. She grabbed him by his shirt. He fell, then got up and he used vulgar
language saying she must expose her genitals. She was initially lying on her
side on her bed and then lay on her back with her legs open. The accused
inserted his penis into her vagina and ‘humped’ her. He then told her to turn,
and she turned over and lay on her stomach. He then spit on his penis and
forced it into her anus, whereafter he ‘humped’ her. She did not consent to
any of this. He did not show violence towards her whilst raping her. When
the accused penetrated her vagina with his penis she was not okay (she
said), and felt some pain at her lower abdomen.
[10] Thereafter the accused took the complainant’s purse, which she kept at her
waist and which contained the R250 and a key, by force, and then left. She
did not give him permission to take her purse.
[11] She confirmed that it hurt a lot that she had been sexually violated by
someone who was very close to her.
[12] The complainant remained in her rondavel until the following morning, when
she borrowed money from a neighbour in order to obtain transport to the
police station, where she reported the incident. The police then took her to
the hospital.
[13] Sgt Matyeni was the police officer who received the complaint from the
complainant on 30 December 2024 and opened a docket.
[14] She confirmed that the complainant had reported the alleged rape and
robbery. She told Sgt Matyeni that the accused had raped her vaginally and
anally, with Sgt Matyeni stating that she was also told that the accused initially
struggled to penetrate the complainant and so spit on his manhood in order to
penetrate her. He then took her purse containing R250 cash.
[15] She testified that the complainant was visibly emotionally drained when telling
her what had occurred and asked for breaks in order to have water. She told
Sgt Matyeni that what pained her the most was that the accused was her
brother’s child.
[16] During cross-examination, when it was put to her that the accused denied that
he raped the complainant, she responded that the complainant was a blood
relative of the accused, and that she would not falsely implicate him.
[17] Dr Bam (whose expertise was not in disput e) confirmed seeing the
complainant on 30 December 2024 and completing the J88 form.
[18] She stated that she thought the complainant was anxious when she made the
report to Dr Bam. According to Dr Bam the injuries to the complainant’s
cheek, neck and ches t were ‘fresh’, and not more than 24 hours old. There
were no injuries to the complainant’s vagina or anus, although it was noted
that there was a thick white discharge, which was ‘non -foul smelling’, on the
complainant’s vaginal orifice.
[19] The area was swabbed and sent for DNA analysis, however the section 212
affidavit (exhibit ‘D’) stated that the swabs, having been analysed, were found
to contain no DNA.
[20] Dr Bam, when asked if it could be expected that a 73 year old woman would
have such a discharge , answered ‘no’. She stated that the discharge could
possibly have been pre -ejaculate from the perpetrator, or from infection,
although she did not perform any tests to rule out infection.
[21] Dr Bam’s conclusion was that, given the complainant’s version of events
along with the findings in the J88, sexual assault could not be excluded.
[22] The history of the incident (as contained in the J88, along with the conclusion
section thereof), stated that the accused attempted to penetrate the
complainant vaginally a nd anally, however did not have success due to the
size of his member. The complainant’s version of events insofar as the
accused choking her, swearing at her and taking the R250 were concerned,
were confirmed in what was recorded in the J88. Dr Bam view ed it as normal
that there were no injuries to the complainant’s genitalia, given the
complainant’s version that the rape was non -violent. She noted that she did
not make the finding that sexual penetration did occur.
[23] The accused then testified as follows:
(a) On the evening in question, having attended the traditional ceremony and
consumed alcohol, he visited the complainant at about 19h30 and asked
to sleep there that night. The complainant said this was fine and sent him
to fetch a blanket from the flat. He obtained a blanket from a relative
named Mahle (it was in dispute as to whether or not Mahle was in the flat
at the time in question, however nothing turns on this aspect).
(b) The accused then went to the tavern and returned to the rondavel later.
He took off his shoes and lay on the second bed. He then conversed with
the complainant, during the course of which he asked her for R50. She
told him she did not have R50. The accused pushed the issue and kept
asking and, at some point, got up and wen t to the complainant’s bed. He
was under the influence of liquor at the time.
(c) The complainant eventually got fed up. She took the purse off that she
had at her waist and threw it. The accused then took the purse, as he was
joking with her and playing around. He then asked for forgiveness for
taking her purse. The complainant was angry, accused him of robbing her
and pushed him. He fell down. He then went and sat next to her and tried
to calm her down, but she took a stick (which was apparently on her bed)
to calm her down, but she took a stick (which was apparently on her bed)
and hit him with it. When she was striking him for the second time with the
stick he grabbed it and they struggled. She pushed him again and he fell
down. She then pinned him down. While he was trying to free himself he
pushed her very hard an d the stick hit against her. He then got up and
she started insulting him, whereafter he left with her purse in his
possession.
(d) When asked why he did not leave the purse behind, he stated that the
problem was that he wanted some money. He denied aski ng if the
complainant practiced witchcraft and denied strangling or raping her.
(e) The following morning he went back to the complainant’s home. When he
reached her homestead he encountered Mahle, who informed him that the
complainant had gone to the poli ce to open a case. He then left. He did
not give the purse to Mahle as he wanted to return it in person and
apologize to the complainant. He ultimately, however, spent the money
and later (after his arrest) asked his parents to reimburse the complainant .
He did not tell his parents what had transpired between the complainant
and himself, but just told them that he had wronged the complainant.
(f) During cross -examination he stated that he did not intend to take the
complainant’s money without her consent, but got angry when she hit him.
He denied forcing her to give her purse to him, but then later conceded
that he took the money by force and admitted that he robbed the
complainant.
(g) He acknowledged that the issue of the complainant hitting him with a st ick
was never put to the complainant as part of his version, although he said
he thought he had told his legal representative.
(h) He conceded that he did not know how the complainant obtained the
injuries to her cheek, neck and chest, but assumed it was during the
struggle with the stick. He stated that he was under the influence of liquor
and maybe did not see things as they were. He later stated that he did not
know how the complainant sustained her injuries, as he never saw them.
He could not think of a reason why the complainant would falsely claim he
had raped her.
[24] It is trite that in criminal matters the state bears the onus to prove its case
beyond a reasonable doubt. If the accused’s version is reasonably possibly
true, he is entitled to his acquittal.
[25] As stated in the matter of S v Van der Meyden 1999 (1) SACR 447 (W) at
page 448:
‘The onus of proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable doubt. The corollary is that he
is entitled to be acquitted if it is reasonably possible that he might be innocent (see,
for example, R v Difford 1937 AD 370 at 373 and 383). These are not separ ate and
independent tests, but the expression of the same test when viewed from opposite
perspectives. In order to convict, the evidence must establish the guilt of the accused
beyond reasonable doubt, which will be so only if there is at the same time no
reasonable possibility that an innocent explanation which has been put forward might
be true. The two are inseparable, each being the logical corollary of the other.
In whichever form the test is expressed, it must be satisfied upon a consideration of
all the evidence. A court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond reasonable doubt, and
so too does it not look at the exculpatory evidence in isolation in order to determine
whether it is reasonably possible that it might be true.’
[26] In S v Chabalala 2003 (1) SACR 134 (SCA) the following was stated in this
regard:
‘[15] The trial court's approach to the case was, however, holistic and in this it was
undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct approach
is to weigh up all the elements which point towards the guilt of the accused against all
those which are indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities on both sides and,
strengths and weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about the accused's guilt. The result may
prove that one scrap of evidence or one defect in the case for either party (such as
the failure to call a material witness concerning an identity parade) was decisive but
that can only be an ex post facto determination and a trial court (and counsel) should
avoid the temptation to latch on to one (apparently) obvious aspect without assessing
it in the context of the full picture presented in evidence.’
[27] In terms of section 208 of the Criminal Procedure Act, an accused may be
convicted of any offence on the evidence of a single, competent witness,
however such evidence must be treated with the necessary caution, and
should be clear and satisfactory in all material respects before being relied
upon.
[28] The state witnesses all testified in a forthright and coherent manner, without
any apparent guile. Neither their credibility, nor reliability, was effectively
brought into question at any point.
[29] The accused, on the other hand, was a poor witness, whose version of events
appeared to evolve to suit the questions being asked at any given time.
[30] Having initially pleaded not guilty to the robbery charge, and whilst initially
characterizing his taking of the complainant’s purse as occurring in jest, and
then resulting from him leaving due to an attack from the complainant with a
stick, he later accepted that he had, in fact, robbed the complainant.
[31] The assault involving the stick was not put to the complainant when she was
cross-examined and appeared to be a convenie nt afterthought in a thinly
veiled attempt to explain the complainant’s injuries, which injuries the accused
ultimately said he had not seen.
[32] Given all of the above, I have no hesitation in accepting the evidence of the
complainant as being clear and satisfactory in all material respects and
corroborated, in terms of what was reported by the complainant and what was
observed, by the evidence of Sgt Matyeni and Dr Bam.
[33] The accused could not advance any reason as to why the complainant would
fabricate her allegations against him and, whilst it is not required that the
accused provide such a reason, it is equally true that no obvious reason
therefore emerges to question the complainant’s credibility in this regard.
[34] I accordingly reject the accused’s version of events as not reasonably
possibly true.
[35] Section 1 of the Criminal Procedure Act defines 'aggravating circumstances’,
in relation to rob bery, or attempted robbery, as including the infliction of
grievous bodily harm; or a threat to inflict grievous bodily harm, by the
offender or an accomplice on the occasion when the offence is committed,
whether before or during or after the commission of the offence.
[36] The injuries suffered by the complainant, in my view, meet the requirements
for aggravating circumstances to be present during the commission of the
robbery.
[37] The question then remains as to whether, on the state’s evidence, the
required elements of the crime of rape have been proved.
[38] The evidence of Sgt Matyeni confirmed that the complainant had reported the
matter to the police and alleged that the accused had robbed her, and raped
her vaginally and anally. The J88 also confirmed that the complainant had
reported the same aspects to Dr Bam when being examined.
[39] Whilst both Sgt Matyeni and Dr Bam’s evidence referred to the accused
facing challenges with penetrating the complainant, the outcome differed, with
Sgt Matyeni confirming that the complainant had told her about penetration,
whilst Dr Bam referred to attempts at penetration but did not canvass this
aspect in the context of the legal definition of sexual penetration. Dr Bam,
whilst noting that she had not conclude d that sexual penetration did occur,
also concluded that sexual assault could not be excluded, and at no point
suggested that sexual penetration could be excluded. The lack of DNA found
in the swab from the white discharge does not, in my view, take the m atter
any further.
[40] ‘Sexual penetration’, as defined in section 1 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, includes
any act which causes penetration to any extent whatsoever by the genital
organs of one person int o or beyond the genital organs, anus, or mouth of
another person.
[41] Having considered the evidence holistically, when viewed in the above -
mentioned context and, considering the inherent probabilities, it is evident that
(were the evidence of the complainant to be accepted) the penetration
referred to by the complainant would amount to sexual penetration as
contemplated in the definition.
[42] Given all of the above, I am satisfied that the state had proved its case
beyond a reasonable doubt, and the accused is accordingly found guilty as
charged.
___________________________
N MOLONY
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the State : Mr Mgenge
Instructed by : Director of Public Prosecutions
Makhanda
For the Defence : Mr Nomlala
Instructed by : Legal Aid South Africa
East London
Heard: 09 & 10 March 2026
Delivered: 11 March 2026