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[2026] ZAGPPHC 642
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Mtshali v S (Appeal) (A163/2025) [2026] ZAGPPHC 642 (25 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HGH COURT OF
SOUTH AFRICA
HELD AT PRETORIA
CASE
NO:
A163/2025
DOH:
19 February 2026
1) REPORTABLE: NO
2) OF INTEREST TO OTHER
JUDGES: NO
3) REVISED.
SIGNATURE
DATE: 25 May 2026
In the matter between:
MTSHALI SICELO
JAMES
Appellant
And
THE
STATE
Respondent
This judgment has been
handed down remotely and shall be circulated to the parties by way of
email / uploading on Caselines. The
date of hand down shall be deemed
to be 25 May 2026.
ORDER
The
following order is granted:
1.
The appeal is dismissed
JUDGMENT
Bam J, (Lenyai J
concurring)
Introduction
1.
The
Appellant, Mr Sicelo James Mtshali, then a 50 year old male, was
convicted of one count of rape as provided for in Section 3
of the
Sexual Offences and Related Matters Act
[1]
read
with the provisions of Section 51(1) of the Criminal Law Amendment
Act
[2]
,
in the Regional Court for the Regional Division of Gauteng, held in
Atteridgeville, on 16 November 2020. He was sentenced to life
imprisonment. The appellant enjoys an automatic right of
appeal, and he now appeals both the conviction and sentence.
2.
Prior
to the commencement of proceedings, the state applied for and was
granted an order that the proceedings be held in camera;
that the
complainant testif
y
via a
closed-circuit television; and through an intermediary
[3]
.
The state’s case was led through the testimony of the
complainant and her grandmother, as the first report witness.
The
medical report was admitted into the record by consent, and the
Appellant confirmed such consent during his testimony. The
Appellant
testified in his own defence and called his wife as the second
witness. He was legally represented throughout the duration
of the
trial.
Background
3.
As to how the Appellant came to be convicted, the
following summary of facts as accepted by the trial court will
suffice: During
the day on 5 November 2019, the complainant, then a
girl of seven years (eight at the time of her testimony) was on her
way to
visit a friend by the name of M
aria
.
She was called by the Appellant, whom she referred to as Lungelo’s
father, into his house to help with some cleaning. According
to the
record, the Appellant’s home is near the complainant’s
grandmother’s house, and so is Maria’s home.
The
complainant was from her grandmother’s house where she spends
time during the day.
4.
On arrival at the Appellant’s house, the
complainant began by mopping the stoep. She was in the kitchen
washing dishes when
the Appellant called her into his bedroom. There,
the Appellant removed her panty and threw her on to his bed with her
face up.
He pulled out his penis and inserted it into the
complainant’s vagina and began bumping up and down. On
finishing bumping
up and down, the complainant realised as she was
dressing up that her panty was wet. The Appellant gave her R8 and she
left the
house.
5.
The second witness to testify for the state was
Mrs Zulu. She testified that on 7 November, while the complainant was
playing with
her friends, she observed that she was walking with
difficulty in that her legs were sort of apart. She asked the
complainant what
had happened and she responded that Lungelo’s
father had raped her. She inspected the complainant’s private
part and
noticed that the area looked reddish and there were bruises
as well as vaginal fluids. She took the complainant to the police
station
and to hospital.
6.
According to the doctor’s findings: there
were multiple abrasions on labia majora and labia minora, laceration
on the posterior
fourchette and the injuries were said to be in
keeping with forced penetration. The doctor further recorded that
there was a yellowish
discharge from the vagina. The Appellant
was arrested on the same day of 7 November and brought to the police
station where
the complainant pointed him as the person who had raped
her. To this I will revert.
Grounds of Appeal
towards conviction
7.
The conviction is assailed on six grounds. They
are:
i)
The court erred in not properly evaluating the
evidence.
ii)
The complainant was a single child witness.
iii)
The complainant was unreliable, contradicted her
own evidence and was untruthful.
iv)
The evidence of the first report witness
contradicted that of the complainant.
v)
The trial court erred in rejecting the version of
the Appellant
vi)
The trial court erred in rejecting the evidence of
the defence witness.
Relevant legal
principles
8.
It is useful to first set out some of the key
legal principles that govern appeals. In
S
v
Hadebe
and
Others, it was said that:
‘
[I]n
the absence of demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct and
will only
be disregarded if the recorded evidence shows them to be clearly
wrong’
[4]
.
9.
In
Makate
v
Vodacom
(Pty) Ltd
, the
Constitutional Court, reaffirming the trite principles outlined in
R
v
Dhlumayo
,
noted:
‘
[37]
Ordinarily appeal courts in our law are reluctant to interfere with
factual findings made by trial courts, more particularly
if the
factual findings depended upon the credibility of the witnesses who
testified at the trial….
[38]
In our system, as in many similar systems of appeal, the cold record
placed before the appeal court does not capture all that
occurred at
the trial. The disadvantage is that the appeal court is denied
the opportunity of observing witnesses testify
and drawing its own
inferences from their demeanour and body language. On the
contrary, this is the advantage enjoyed by
every trial court.
Hence an appeal court must defer to the trial court when it comes to
factual findings.’
[5]
10.
Perhaps, before going any further, it is
convenient to record that the Appellant, or more aptly those
responsible for preparing
his heads of argument, whilst having
isolated the Appellant’s grounds of appeal at the beginning of
the heads of argument,
chose to advance his case under different
topics, which are not mentioned in the grounds earlier identified. I
now deal with the
contentions raised under the different headings.
(i)
Swearing in of a witness
11.
The submission is that the trial record does not
show that the witness was tested in respect of whether she was aware
that consequences
may follow upon telling a lie. It is further said
that the complainant was not a competent witness and her evidence was
inadmissible.
The record bears quite the opposite, to demonstrate
that the court
a quo
followed
the provisions of the Criminal Procedure Act, CPA. In this regard,
the court, at the start of the trial, devoted time to
establish
whether the witness can distinguish between a truth and a lie. She
was asked several questions and when the court was
satisfied, it went
on and admonished her to tell only the truth and the whole truth.
This is exactly what the CPA in Section
164 provides for:
‘
164
When unsworn or unaffirmed evidence admissible
(1)
Any person, who is found not to understand the
nature and import of the oath or the affirmation, may be admitted to
give evidence
in criminal proceedings without taking the oath or
making the affirmation: Provided that such person shall, in lieu of
the oath
or affirmation, be admonished by the presiding judge or
judicial officer to speak the truth.’
(ii)
Single witness
12.
It is difficult to identify what the complaint is
in respect of this ground as all that is set out in the heads of
argument is a
recital of the legal position as set out in Section 208
of the CPA and case law. A conclusion is drawn that the trial court
failed
to properly consider and caution itself with respect to the
evidence of the complainant who was a single witness. There is no
evidentiary
basis relied upon to demonstrate any misdirection by the
trial court. See in this regard, the remarks of the court in
S
v
Gentle
:
‘
In
some cases, it may be appropriate for the judge to warn the jury to
exercise caution before acting upon the unsupported evidence
of a
witness. This will not be so simply because the witness is a
complainant of a sexual offence... There will need to be an
evidential basis for suggesting that the evidence of the witness may
be unreliable. An evidential basis does not include mere suggestions
by cross-examining counsel.’
[6]
13.
In
S
v
Stevens
,
with reference to
S
v
Sauls and Others
1981
(3) SA 172
(A) at 180E-G, the court espoused the correct approach to
be followed:
‘
There
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
[in R v Mokoena
1932 OPD 79
at 80] 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.’
[7]
(
citations excluded)
(iii) Child Witness
14.
Once again, it is difficult to establish what the
complaint is in respect of this point. Instead, what is set out is a
caveat drawn
from
S
v
Hannekom
2011
(1) SACR 430
(WCC) regarding the need for the court to be cautious
where the witness is a child, particularly in charges of sexual
misconduct.
This ground concludes with the following statement: ‘In
search of the hallmark of trustworthiness, a trial court may consider
evidence in respect of the first report [witness], as well as medical
examination conducted, if any.’
15.
I
should first note that the medical report in this case was not
challenged in any way. I will deal with the evidence of the first
report witness in the next point. For now, it is appropriate to
address the issue of the complainant as a child witness, even though
there is no complaint levelled against her testimony, solely to
demonstrate that the circumstances in
Hannekom
are
plainly distinguishable from the present case. I commence by drawing
from the caveat set out in
S
v
Viveiros
[8]
on
which the court in
Hannekom
relied
.
There
the court said:
‘
[W]hilst
there is no statutory requirement that a child’s evidence must
be corroborated, it has long been accepted that the
evidence of young
children should be treated with; and that the evidence in a
particular case involving sexual misconduct may call
for a cautionary
approach ( S v J 1998(2) SA 984 (SCA) at 1009B).’
16.
In both
Viveiros
and
Hannekom,
the conviction was overturned due to the finding
by the Supreme Court of Appeal that the trial court had materially
misdirected
itself which entitled the court of appeal to interfere
with the trial court’s findings of fact. In the two cases, the
evidence
of the complainants, (there was only one in
Hannekom
,
whilst there were several in
Viveiros
)
was said to have material contradictions. A period of three years had
elapsed between the date of the incident and the testimony
of the
witnesses in court.
17.
In
Hannekom
the incidents of indecent assault said to have
been perpetrated by the father, the appellant, took place when the
witness was five.
She testified three years later. It further
transpired that the parents were divorced, and the witness was said
to be close to
the mother, whom, the Court of Appeal noted may have
harboured resentment against the appellant arising from the divorce.
Importantly,
there was no evidence to corroborate the witness’
version. The trial court paid no regard to any of these issues,
notwithstanding
that they were all indicators that caution was
required when assessing the witness’ evidence, hence the Court
of Appeal decided
to interfere with the trial court’s findings
of fact.
18.
In
Viveiros
,
there had been prior clashes between the appellant and some of the
complainants. Here too, there was a lapse of a period of three
years
from the date of the incident to the date of the witnesses’
testimony in court. The witnesses could not recall the
details of the
incident and plainly contradicted themselves. Some of complainants,
who were not necessarily children at the time
of the incident, were
found to be evasive when direct questions were posed to them during
the trial. Most importantly, as the Court
of Appeal found, the
appellant’s version was not such that it should have been
automatically rejected by the trial court.
Several key witnesses were
not called by the State, leading to the court drawing adverse
inferences against the State. Witnesses
called in support of the
complainants’ version were discredited, and in some instances,
said to be unsatisfactory.
19.
None of these issues arise in the present case.
Contrary to the situation in the two cases, the complaint testified a
year after
the incident. Two independent pieces of evidence accepted
by the trial court corroborated the complainant’s version in
material
respects. These were the evidence of the first report
witness, and the medical report. As a matter of record, the Appellant
was
found to be a poor witness and so was his wife. Much of the
evidence put to the complainant during her cross examination was new,
according to the court
a quo
.
Hence the magistrate concluded that he was making up his case as he
went along.
20.
The record further shows that the court was alive
to the fact that it was dealing with the evidence of a single witness
and in weighing
the evidence, it critically sought and identified
those aspects which militated against the admission of her evidence.
See in this
regard, the discussion in paragraph 22 of this judgment.
In the end, the court concluded that the
Appellant’s version could not be reasonably probably true and
rejected it.
(iv) First Report
Witness
21.
The submission in advancement of this point
is that there was some contradiction between the complainant’s
version as to the
date when the report was first made to the
grandmother, the first report witness. According to the record, the
complainant testified
that the grandmother saw her walking with
difficulty on the same day of the incident, on 5 November, while,
according to the grandmother’s
testimony, she noticed that the
complainant was walking with difficulty on 7 November. On this date,
the complainant was taken
to the police station and to hospital where
she was examined. There is a further complaint which questions why an
alarm was not
raised if indeed the complainant was raped on 5
November and slept at her mother’s house on 5, and 6 November,
with parents,
siblings and cousins.
22.
The record suggests that the grandmother looks
after the complainant during the day while her parents are at work.
It is not clear
from the record whether the reference to during the
day means after school or the entire day. But the disparity regarding
the dates
was clearly identified by the court and correctly, in our
view, the court recognised that the complainant was mistaken because
the medical report suggests that she was seen by the doctor only on
the 7
th,
which
is the date, according to the first report witness, she had seen the
complainant walking with difficulty. On the same day,
she was taken
to the police and to the doctor.
23.
As to the insinuation that appears to question
whether the complainant was indeed raped, on 5 November, there are
two answers to
this. The first is this, the appellant consented to
the admission of the medical report. It is not open to him to
challenge whether
the complainant was indeed raped. I have already
dealt with the incorrect date mentioned by the complainant in her
testimony.
24.
I may
further note that there is no requirement that ‘the evidence of
a single witness must be free of all conceivable criticism.
The
requirement is merely that it should be substantially satisfactory in
relation to material aspects or be corroborated
[9]
’
.
The trial court, having observed and listened to the complainant
during her testimony, notwithstanding the mistake about dates,
found
her to be an exceptionally good witness, intelligent, and with good
memory. After weighing all the evidence before it, the
court
concluded that her evidence was substantially satisfactory in
relation to the material respects. I have already mentioned
that the
submission made on behalf of the Appellant on this point makes no
mention that the court misdirected itself.
(v) Failure to report
at the first available opportunity
25.
In advancement of this point, the law as set out
in Section 59 of the CPA is set out. The section reads:
‘
In
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the
length of
any delay between the alleged commission of such offence and the
reporting thereof.’
26.
It is then stated that the complainant did
not report the incident to anybody. Only when prompted by the
grandmother did she explain
that the Appellant was the cause. A
further statement is made that the evidence does not suggest that the
Appellant made any threats
towards the complainant and that she
testified that she did not report the incident as she was afraid of
her grandmother. There
is no attack that the court misdirected itself
in any manner, especially, considering the provisions of Section 59.
Onus on the appellant
27.
In respect of this point, it is said that
there is no onus on an accused person to prove his innocence. There
is further refence
to case law. A conclusion is then drawn that the
appeal in respect of conviction ought to succeed based on the
following factors:
1.
The complainant was not a competent witness.
2.
The trial court did not apply the cautionary rules
in respect of a single witness who is also a child.
3.
The evidence of the first report witness did not
corroborate the version of the complainant in respect of the date of
the incident.
4.
The complainant did not report the incident at the
first available opportunity to her grandmother, parents or aunt.
5.
The reason for not reporting was fear that the
grandmother would assault the complainant.
6.
The method followed by the police in having the
Appellant pointed out by the complainant suggested the answer to the
complainant.
28.
While I am satisfied that there is no basis for
any of the conclusions drawn on behalf of the Appellant, I take the
liberty to make
a single point in respect of very last point in
paragraph 27, even though it is not necessary to do so. There is no
substance to
the point. While it is not clear what is being referred
to with the words, ‘the method followed by the police which
suggested
the answer to the complainant’, I note that the
Appellant’s identity was never placed in dispute before the
trial court.
In addition, the Appellant, in what may be seen to
be a contradiction to Ms Mtshali’s evidence, confirmed that the
complainant had been visiting their home to see Ms Mtshali.
Grounds against
sentence
29.
In advancing the argument against sentence, it is
submitted that the Appellant is 51 years old, married with three
children, and
had no previous convictions. He spent a year in
custody while awaiting trial and he will be 76 by the time he becomes
eligible
for parole. The point is made that the trial court erred in
not finding that there were substantial and compelling circumstances
and that a sentence of life imprisonment is disproportionate given
the circumstances of the case.
30.
The principles dealing with the appellate court’s
interference with the exercise of the trial court’s discretion
on
sentence are captured in
S v
Packereysammy
. There it was said:
‘
[5]
Before discussing the above submissions it is necessary to restate
briefly the well-known approach to be adopted by a court
of appeal
when dealing with the question of sentence. Punishment is
pre-eminently a matter for the discretion of the trial court.
The court on appeal is not to erode such discretion; on appeal no
general right exists to interfere with a sentence imposed by
the
trial court. It will only interfere if the discretion has not
been judicially and properly exercised. This will
be so only
where the sentence is vitiated by an irregularity or misdirection or
is disturbingly inappropriate.’
[10]
31.
I have noted the personal circumstances of the
Appellant. It is however not clear what the Appellant means by
referring to ‘the
circumstances of the case’. So far, the
Appellant has not pointed this court to any misdirection nor
irregularity committed
by the trial court. Nor do we understand the
Appellant to suggest that there are substantial and compelling
circumstances from
the fact that he was 51 at the time of sentencing,
married with three children, with no previous convictions, had been
in custody
for one year prior to sentencing and will be 76 when he is
eligible for parole.
32.
The record suggests a singular absence of remorse
and regard for the plight of the complainant -- a seven-year-old at
the time of
the offence -- her family and the lifelong scars she is
likely to carry. There is no basis for this court to interfere with
the
exercise of the court
a quo’s
discretion.
Conclusion
33.
Based on all the reasons set out in this judgment,
the appeal must fail.
Order
The appeal is dismissed.
BAM J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
I agree:
LENYAI J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Date of
Hearing:
19 February 2026
Date of
Judgment:
25 May 2026
Appearances
:
Counsel
for the Appellant:
Adv LA van Wyk
Instructed by:
Legal Aid, South Africa
Pretoria
Counsel
for the Respondent:
Adv M Shivuri
Instructed by:
National Director of Public Prosecutions, Pretoria
Lynnwood,
Pretoria
[1]
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
.
[2]
Act
105 of 1997.
[3]
As
per Sections 153, 158, and 170A of the Criminal Procedure Act
respectively.
[4]
(298/94)
[1997] ZASCA 86
;
1998 (1) SACR 422
(SCA) (29 September 1997),
paragraph 11.
[5]
Makate
v Vodacom (Pty) Ltd
[2016]
ZACC 13
, paragraph 37;
Rugnanan
v S
(259/2018)
[2020] ZASCA 166
(10 December 2020), paragraph 23.
[6]
(317/2003)
[2005] ZASCA 26
;
2005 (1) SACR 420
(SCA) (29 March 2005), paragraph
17.
[7]
(417/03)
[2004] ZASCA 70
;
[2005] 1 All SA 1
(SCA) (2 September 2004),
paragraph 17.
[8]
(75/98)
[2000] ZASCA 95
;
[2000] 2 All SA 86
(A);
2000 (1) SACR 453
(SCA) (9
March 2000).
[9]
Rugnanan
v S
(259/2018)
[2020] ZASCA 166
(10 December 2020), paragraph 23.
[10]
(48/2003)
[2003] ZASCA 146
;
2004 (2) SACR 169
(SCA) (28 November 2003),
paragraph 5; also,
Mdlongwa
v S
[2010]
JOL 25668
(SCA), paragraph 29.