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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A231/2025
Appeal No: 15/25
In the matter between:
WITTER JOJO MAILA Appellant
and
THE STATE Respondent
Neutral citation: State v Witter Jojo Maila
Coram: MANTAME J and GXASHE AJ
Heard: 12 June 2026
Delivered electronically: 17 June 2026
Summary: Conviction -Appellant convicted in the regional court - two counts
of rape and kidnapping - minor child -automatic right to appeal - conviction
and sentence - cautionary rules applicable - single child witness - appellants
right to remain silent - duty of rebuttal - failure to testify - Sentence Part 1
schedule 2 - life imprisonment- substantial and compelling circumstances - no
misdirection- appeal dismissed
ORDER
Appeal against both conviction and sentence dismissed.
JUDGMENT
GXASHE AJ
Introduction
[1] The appellant appeals against conviction and sentence. The appellant was
arraigned before the regional court , Wynberg, for two counts of rape in
contravention of section 3 the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (the ‘Sexual Offences and Related Matters
Amendment Act ’), read with the provisions of section 51(1) the Criminal Law
Amendment Act 105 of 1997 ( the minimum sentences legislation), assault and one
count of kidnapping. The court below acquitted him on the assault charge (Count
3) but convicted him on both counts of rape (Count 1 and 2) and kidnapping
(Count 4). On 28 August 2024 , he was sentenced to life imprisonment as
prescribed by the minimum sentences legislation in respect of Count 1 and 2, and
to five years im prisonment in respect of Count 4. In terms of section 280 of the
Criminal Procedure Act 51 of 1977 (the CPA), the magistrate ordered that Count 2
and 4 shall run concurrently with the sentence on Count 1. By virtue of the
sentence imposed on Count 1 and 2 by the court a quo the appellant exercised his
automatic right to appeal as provided for in section 309(1)(a) of the CPA.
[2] The respondent opposed the appeal. Both the appellant and the respondent
were legally represented in these proceedings.
Factual matrix
[3] The complainant testified through an intermediary as she was still a minor
when she gave evidence. On 17 July 2021 and in the late afternoon, the
complainant, AN, who at the time was a six -year-old minor child was on her way
home when she met an unknown man. This unknown man was later on identified
by the complainant as the appellant in these proceedings. The appellant enquired if
she knew Emihle. Before she could respond, he picked her up, threw her on his
shoulders and ran away. The appellant took her to derelict area off R300 highway
and laid her down on the grass. The appellant made her lie on her stomach and
undressed her tights and panties. He proceeded to capture a photo of her bums with
his cellular phone and penetrated her vagina with his penis.
[4] The complainant testified that when the appellant inserted his penis in her
vagina it was painful. She was terrified to be in the presence of this stranger to the
-
extent that she pleaded with him to release her so that she could make her way
home. At that time, it was getting darker and her anxiety was heightened. At some
point, she told the man she wanted to go home because it was getting late.
[5] Instead, the appellant took her to his house where he penetrated her vagina
with his penis again. As the pain was unbearable, she cried but no one could hear
her. However, after a while, some people knocked at his door and asked whose
child she was. The appellant told them that the was his child and they left without
making any further enquiries.
[6] The appellant did not release the complainant to go home but the appellant
made her sit on the chair and tied her up, stuffed her mouth with a sponge, and tape
gagged her. The complainant remained there until the early hours of the morning
when the appellant untied her, carried her, and dumped her in a dumping site.
[7] After the ordeal, the complainant ran home and on arrival she made a report
to her mother. The complainant’s mother immediately took her to the police station
to open a criminal case. The police took the matter for investigation and requested
her to take them to the house where the incident occurred.
[8] Although the complainant initially pointed the police to the wrong address, she
somehow corrected herself and took them to the appellant’s house. The police
found the appellant still asleep and proceeded to search the house. On being
questioned about the incident, the appellant proffered no plausible explanation. At
the same time, the complainant was adamant that the appellant was the person who
repeatedly raped and kidnapped her for the entire night.
[9] The complainant further identified the chair she was made to sit on when she
was tied up. The police further recovered the cellotape that was used to tape gag
her. The appellant was then arrested.
[10] The complainant was thereafter taken to Thuthuzela Care Centre for medical
examination. Dr . Haffejie examined the complainant and collected the samples
and specimens for forensic analysis.
[11] B[...] M[...] is the complainant’s mother. In her testimony, she stated that she
learnt that the complainant was missing on her arrival from work. Attempts to find
her were unsuccessful and she ended up reporting her daughter to the police as
missing. However, during the early hours of the morning, AN came home
hysterical and reported to her that she was kidnapped by a man in front of the gate.
In her report, she also told her that he took her to the R300 open site where she was
raped, and later to his house where she w as raped once more and then tied up. The
appellant inserted a sponge in her mouth , and tape gagged her to silence her
speech. At the time, she could see the cellotape marks around AN’s mouth and she
took her to the police station.
[12] AN later led the police to the house where she was kept hostage and they
found the appellant sleeping. AN identified him positively as the perpetrator and
pointed out the chair and the rope that was used to tie her up, a sponge which was
on the floor , and a drawer where he kept the cellotape. In cross examination , she
was adamant that they did not find an upholstery material from the man’s house
but a sponge.
[13] Doctor Macky Laurie Matanda (Dr . Matanda) testified on behalf of Dr .
Haffejie who examined the complainant on 14 July 2021. Dr . Haffejie could not
testify as he was indisposed. Dr . Matanda testified that according to J88 , AN was
examined by Dr. Haffejie on 14 July 2021 at 10:20. The history was obtained from
the complainant’s mother that AN might have been sexually assaulted on 13 July
2021 in the evening. At the time of the examination , AN was merely wiped with a
cloth and did not bath. It was confirmed that she urinated. During the examination,
it was not clear whether a condom was used by the appellant when he performed
sexual acts on the minor child.
[14] According to the doctor’s testimony, at the time of the examination , AN had
not changed her clothes and it was noted that her panty was stained and it was then
collected for forensic analysis. The doctor also noted some tape marks on the
cheeks and the side of the neck on both sides. No injuries were noted on anal
examination. The configuration of the hymen was annular with a notch at 7
o’clock. The vagina and cervix were not examined and there was no discharge
noted. The doctor’s conclusion was that f indings on genital examination are
compatible with sexual abuse or assault.
[15] Dr. Matanda then confirmed in evidence that there is redness on the
vestibule noted in the report. According to her , the vestibule is part of the external
genitalis which covers the labia before you get to the vagina. The redness in this
case could have been caused by sexual contact, probably a finger or penis which
touched that area. The notch, according to her, is commonly found on the hymen
membrane which can be caused by blunt trauma. Usually, it appears more or less
the same as a cleft, the difference is that the notch is more superficial and the cleft
is a bit deeper. A notch can be a pre -existing condition but, in this case, she
doubted that it is an acute finding because it could have been that the child was
born with it and does not link to this case because it is not a fresh finding. The
child could have injured herself by touching the genitals.
[16] The doctor noted further that from the schematic drawing , the findings
indicated that there was a two-millimeter fresh tear on the perineum. The perineum
is the area between the genitals of the woman and the anus. According to her,
based on the history given, that tear could have been caused by the attempt to
penetrate the vagina.
[17] Dr. Matanda confirmed in evidence that D r. Haffejie submitted a DNA
collection kit with the swob collected on the perinium where there was a tear. The
second swab was collected from the vestibule where there was redness.
[18] In cross examination, she confirmed that redness could be caused by irritation
or infection. However, when the defence attorney suggested that the injury on the
perinium could be caused by an attempt to rape, she clearly indicated that that it
may be caused by rape or an attempt to rape. The doctor further stated that redness
can be caused by infection, history of previous irritation or allergy only if there
was such history and that was not reported in this matter. The doctor also
confirmed that the report does not indicate any of such disclosure by the child and
according to the notes they only mentioned an unknown man.
[19] Clarisa Simone Muthakapperang (Ms. Muthakapperang) is a forensic analyst
under the employ of the South African Police Services. She analysed the DNA
samples in this matter, and she testified on the report she compiled after the
process was completed. Ms . Muthakapperang confirmed in evidence that her
finding was that the DNA results obtained from reference sample 22DBAJ7291 IN
BAG PA4006061951 Maila J and reference sample 22DBAJ3785 in bag
PA4006058330 Maila W are the same and they matched the DNA found from the
panty. That is confirmed by the DNA report which reads: ‘the DNA sample from
the Panty A 19d7AB6658 (PW 3000859625) matches the DNA from reference
sample 22DBAJ7291 (Maila j)’.
[20] The appellant did not testify in rebuttal of this evidence but exercised his
right to remain silent.
Discussion and analysis
[21] Counsel for the appellant correctly pointed out that the complainant’s
evidence had to be evaluated with caution because she was a single child witness.
It is important to note that section 208 of the CPA permits a conviction on the
evidence of a single and competent witness. In R v Mokoena ,1 the court held that
the equivalent provision in the 1917 Act that ‘the uncorroborated evidence of a
single competent and credible witness is no doubt declared to be sufficient for a
1 R v Mokoena 1932 OPD 79 at 80
conviction . . ., but in my opinion that section should only be relied on where the
evidence of the single witness is clear and satisfactory in every material respect’.
[22] This passage was endorsed i n S v Sauls,2 where the court held ‘[t]here is no
rule of thumb test or 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 its 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 referred to by De Villiers JP in 1932 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’ 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’.
[23] In Rex v Manda,3 Schreiner JA explained that there is no rule of law that the
evidence of a child must be corroborated, but that ‘[n]evertheless the principle has
properly been acted upon that the evidence of young children should be accepted
with great caution ’. The learned judge further held that the dangers inherent in
relying on ‘the uncorroborated evidence of a young child must not be underrated.
The imaginativeness and suggestibility of children are only two of a number of
elements that require their evidence to be scrutinised with care amounting perhaps,
to suspicion’.
2 S v Sauls and Others [1981] 4 All SA 182; (3) SA 172 (AD) at 180.
3 Rex v Manda [1951] 3 All SA 236 (A) at 239.
[24] From the outset , the magistrate understood that she was dealing with the
evidence of a single child witness. In her judgment , she explicitly stated that such
evidence should be approached with caution and be weighed against the factors
which militate against his or her credibility. She analysed the evidence of the
complainant sufficiently and, in particular, the fact that the appellant was a stranger
to her. She stated that even though the complainant did not describe her perpetrator
when reporting the matter to the police she was able to identify and differentiate
his house by the black door. Even though the complainant conceded with the
defence during cross examination that the door was silver , the State presented
compelling evidence to exclude any doubt that the appellant was the perpetrator.
[25] This was confirmed by the complainant’s mother who was in her company
when she was leading the police to the house of her perpetrator. As counsel for the
appellant correctly pointed out, these offences were committed towards sunset, and
it was already dark by the time the perpetrator took AN to his place. He , however,
refused to consider AN’s evidence that a candle was lit and it provided sufficient
light. Moreover, the appellant kept AN captive for a considerable period, and the
scene was not moving. The complainant had an entire night to see and identify the
appellant.
[26] Of importance is the fact that her mother confirmed in evidence that a rope,
cellotape, and a sponge were found in the appellants’ house. The cellotape was not
visible but the complainant was able to point out the drawer where the appellant
put it after gagging her and that is where it was found by the police. Even though
the appellant did not testify, it was not denied in cross examination that these items
were found. It was merely insinuated that a piece of upholstery material was found
and not a sponge. However, no evidence was presented to support this allegation.
[27] Evidently, the appellant did not refer to an upholstery fabric and what he
posed during cross -examination could be an upholstery material which look like a
sponge, and it can be expected that a child would not be able to differentiate that
from a sponge. Be that as it may , what was put to the witnesses cannot gainsay the
State’s evidence because even the complainant’s mother confirmed in evidence
that a sponge was found on the floor. The appellant did not testify and what was
put to the witnesses is not evidence because it was never confirmed under oath.
Moreover, the complainant’s mother noted the cellotape marks on her cheeks and
that was corroborated by the contents of the J88 during the evidence of Dr .
Matanda. Accordingly, when considering these pertinent issues that were identified
by a six -year-old child , how can it be said that the complainant made a mistake
because these items were not found anywhere else but from the appellant’s house.
[28] In addition, the court a quo also considered the medical evidence that was
presented by the State during the trial. It can be gleaned from the report that the
child did not present any information that she was sexually assaulted. Because of
her age, that can be expected. That information was obtained from her mother who
was also not sure what happened. However, on examination , the doctor observed
injuries and concluded that findings on genital examination are compatible with
sexual abuse or assault.
[29] Moreover, the evidence of DNA and findings thereof remain uncontroverted.
During the analysis , Ms. Muthakapperang found that the DNA which was found
from the complainant’s panty matched the accused’s DNA. If that does not support
the evidence of the complainant, I do not know what else could , because the
appellant’s DNA could not have miraculously found its way into the complainant’s
underwear. The only plausible explanation is that he had penetrated her with his
penis, which supports the complainant’s evidence.
[30] The appellant did not testify or call any witnesses in rebuttal of the State’s
evidence, save to deny the allegations notwithstanding the overwhelming evidence
against him. Of course, he has a right to remain silent but if the State succeeded in
showing a prima facie case against him, the duty of rebuttal arises. This, however,
does not relieve the state from proving its case beyond reasonable doubt. I n Osman
and Another v Attorney -General, Transvaal,4 the learned Judge Madala J said the
following:
‘Our legal system is an adversarial one. Once the prosecution has produced evidence
sufficient to establish a prima facie case, an accused who fails to produce evidence to
rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty
to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that,
absent any rebuttal, the prosecution ’s case may be sufficient to prove the elements of the
offence. The fact that an accused has to make such an election is not a breach of the right
to silence. If the right to silence were to be so interpreted, it would destroy the
fundamental nature of our adversarial system of criminal justice’.
4 Osman and Another v Attorney-General, Transvaal, [1998] ZACC 14; 1998 (4) SA 1224 (CC); 1998 (2) SACR
493 (CC) at 22.
[31] An arrested person is entitled to remain silent and may not be compelled to
make any confession or admission that could be used in evidence against that
person. It arises again at the trial stage when an accused has the right to be
presumed innocent, to remain silent, and not to testify during the proceedings. The
fact that an accused person is under no obligation to testify does not mean that
there are no consequences attaching to a decision to remain silent during the trial.
If there is evidence calling for an answer, and an accused person chooses to remain
silent in the face of such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation to prove the guilt of the
accused. Whether such a conclusion is justified will depend on the weight of the
evidence.5
[32] Similarly, the State’s evidence called for an answer and the accused election
not to testify was to his detriment. In the end, I am of the view that the finding of
the court a quo was based on the evaluation of the evidence in totality, and I could
not find any misdirection herein.
[33] With regard to sentence, the appeal court has to consider whether the
magistrate’s finding that there are no substantial and compelling circumstances
justifying deviation from the prescribed minimum sentence as provided for by Act
105 of 1997 was wrong. From the outset , it is important to note what was said in
Tafeni v S,6 while referencing S v PB, when the court considers an appeal against a
mandatory sentence that:
5 S v Boesak [2000] ZACC 25; 2001 (1) BCLR 36 (CC); 2001 SACR 1 (CC).
6 Tafeni v S [2015] ZAWCHC 150; 2016 (2) SACR 720 WCC at 8.
‘… The approach to an appeal on sentence imposed in terms of the Act should, in my
view, be different to an approach to other sentences imposed under the ordinary
sentencing regime. This, in my view, is so because the minimum sentences to be imposed
are ordained by the Act. They cannot be departed from lightly or for flimsy reasons. It
follows therefore that a proper enquiry on appeal is whether the facts which were
considered by the sentencing court are substantial and compelling, or not.’
[34] In considering whether substantial and compelling circumstances exists in
this matter, the magistrate took into account the seriousness of the offences and the
gravity thereof, the interests of the community and the appellant’s personal
circumstances as enunciated in S v Zinn .7 The magistrate then considered the
following mitigating circumstances as placed on record by the defence attorney:
that the appellant is 38 years old, a father blessed with two children. His highest
standard of education is grade 10. He studied upholstery and electrical engineering
to advance his academic pursuits. Before his arrest , he was under the employ of
Westlake Upholstery earning about R1800.00 per week. He suffers from chronic
asthma and sinusitis. He has been in custody for three years.
[35] It is interesting to note that during arguments , the defence counsel did not
address the question whether the appellant ’s personal circumstance so stated
above, qualify as substantial and compelling circumstances justifying the
imposition of a lesser sentence. In fact, reliance was placed on the fact that the
appellant is a first-time offender and had been in custody for three years before his
sentence. It is worth noting that the court in Director of Public Prosecutions, North
7 S v Zinn 1969 (2) SA 537 (A).
Gauteng: Pretoria v Gcwala and Others made the following remark about the
period of pre- detention referencing to S v Radebe:8
“In my view there should be no rule of thumb in respect of the calculation of the weight
to be given to the period spent by an accused awaiting trial .” … A better approach, in my
view, is that the period of detention pre-sentencing is but one of the factors that should be
taken into account in determining whether the effective period of imprisonment to be
imposed is justified: whether it is prop ortionate to the crime committed. Such an
approach would take into account the conditions affecting the accused in detention and
the reason for a prolonged period of detention . And accordingly in determining …
whether substantial and compelling circumstances, warrant a lesser sentence than that
prescribed by the Criminal Law Amendment Act 105 of 1997 , the test in not whether on
its own that period of detention constitutes a substantial and compelling circumstance ,
but whether the effective sentence proposed is propo rtionate to the crime or crimes
committed: whether the sentence in all the circumstances, including the period spent in
detention prior to conviction and sentencing, is a just one’.
[35] In addition, it was argued that this was not the worst case of rape despite the
provisions of section 51( 3) ( aA) of the minimum sentences legislation that the
apparent lack of physical injury to the complainant does not constitute substantial
and compelling circumstances.
[36] The magistrate then proceeded and considered the interests of the
complainant and referred to section 28 the Constitution which provides that a child
under the age of 18 has a right to be to be protected from being mistreated,
neglected or abused. This is apposite to what was once said in LN v S9:
‘Gender-based violence has regrettably reached pandemic proportions in our country.
Despite campaigns and law reform efforts from the government, there is no demonstrable
Despite campaigns and law reform efforts from the government, there is no demonstrable
8 Director of Public Prosecutions, North Gauteng: Pretoria v Gcwala and Others [2014] ZASCA 44; 2014 (2)
SACR 337 (SCA) at 16.
9 LN v S [2026] ZAWCHC 7 at 58.
stem in the scourge of violent crimes committed against women and children. We believe
an unambiguous message must be sent to offenders who commit this type of criminal
activity. That is what section 51 (1) of Act 105 of 1997 requires. That this crime was
committed against a thirteen -year-old child also requires that, in considering the issue of
sentence, the court must consider the provisions of section 28 of the constitution, namely
the right of every child under section 28(1)(d), to be protected from mal treatment,
neglect, abuse or degradation - a right which the appellant egregiously violated in this
case’.
[37] Evidently, the appellant kidnapped a minor child next to the gate of her
home. He lured her into a secluded area to take advantage of vulnerable child. The
appellant then violated her sexually on two occasions, thus stripping her inherent
right to dignity and to enjoy her childhood to which she is entitled to as a child.
Moreover, he kept the child hostage for the night to satisfy his selfish desires. I
cannot imagine the torment the child was subjected to when she was forcibly tied
up in a chair, gagged wi th a sponge and cellotape , and ultimately discarded like
refuse in a dumping site. This devastating violation devalued her self -worth and
foolishly left her vulnerable and exposed to danger. Miraculously , the child found
her way back home safely.
[38] Indeed, this is a serious offence which has devastating and negative lasting
impact on the child’s right to human dignity and bodily integrity. In this regard,
this court aligns itself with what was said by the magistrate that, the community
demand sentences which reflect the determination of the courts to protect the
vulnerable members of the community and more in particular, children.
[39] The enduring trauma experienced by the complainant is clearly evidenced by
the Victim Impact Report compiled for the court below. The report indicates that
the complainant remains highly anxious and hypervigilant, both at home and at
school. She continues to harbour a profound fear that the appellant will return to
violate her, which has caused her to become reclusive and unwilling to leave the
safety of her home. Consequently, her mother was compelled to arrange dedicated
transport to escort her to and from school to mitigate her fear of being abducted or
harmed again, an administrative and protective measure that has come at great
financial expense to the mother.
[40] By way of an obiter dictum , this court deems it necessary to address the
ongoing welfare of the minor complainant. Given that she continues to harbour
profound psychological trauma years after the incident, it is strongly recommended
that the relevant state authorities specifically the Department of Social
Development, in conjunction with the National Prosecuting Authority's victim
support structures conduct a follow -up assessment on her well -being. Continued
psychological counselling and support, extended to both the complainant and her
mother, are imperative to facilitate their long-term healing and rehabilitation.
[41] After careful consideration of this appeal on sentence, I could not find any
factors which justify the court to deviate from imposing life imprisonment in the
circumstances. Evidently, the aggravating factors in this matter far outweighed the
appellant’s mitigating circumstances. As a result, there is no reason for this Court
to interfere with the sentences imposed. Accordingly, I am satisfied that the
magistrate applied her mind properly and could not be faulted in her findings.
[42] In the result, the appeal against both conviction and sentence are dismissed.
_________________________
GXASHE AJ
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered:
_________________________
MANTAME J
JUDGE OF THE HIGH COURT
Appearances: RN Sivnarain
For the Appellant
Advocate J Van Der Merwe
For the Respondent