S v Mgodeli (CC28/2026) [2026] ZAECMKHC 68 (28 July 2026)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Sexual Offences — Kidnapping and Rape — Accused charged with multiple counts including kidnapping and rape of minors and young women — Evidence presented by multiple complainants detailing unlawful confinement and non-consensual sexual acts — Accused denying allegations and claiming consensual relationships — Court finding overwhelming evidence of guilt beyond reasonable doubt — Conviction on all counts upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a criminal trial in the High Court of South Africa, Eastern Cape Division, Makhanda (Circuit Court held at Komani). The matter was prosecuted by the State against Mr Thulani Mgodeli (the accused).

The accused was indicted on eight counts, but the State withdrew count 3 before finalisation of the trial. The accused pleaded not guilty to all remaining counts and tendered no plea explanation.

The dispute concerned allegations of kidnapping, rape (each rape charge being read with section 51(1) of Act 105 of 1997), and theft, arising from three separate incidents involving three complainants. The core subject-matter was whether the complainants were unlawfully deprived of their freedom and whether sexual intercourse occurred without consent, together with whether a cellphone was stolen in relation to one complainant.

2. Material Facts

The court treated it as common cause that the accused and the witnesses were from the same location and knew each other. In relation to the complainants in counts 1 and 2 and counts 7 and 8, it was not in dispute that sexual intercourse occurred; the dispute was whether it was consensual. In relation to counts 4, 5, and 6, the accused disputed that the complainant was taken to his room, disputed sexual intercourse, and disputed the theft.

The first incident (counts 1 and 2) occurred on 29 August 2020 when Z[…] N[…] was 15 years old. She went to a shop with other youths, encountered the accused, and returned with items to the accused’s place. The complainant’s evidence (supported in material respects by another witness regarding the locking-in) was that the accused forced the other youths out, locked her inside, and pulled her into his room, where he threatened her and had sexual intercourse with her without consent. The complainant reported soon thereafter to family and a community member, and the matter was reported to the police. A medical examination was conducted, and the medical report (handed in by consent) recorded injuries which the court regarded as corroborative.

The second incident (counts 4, 5, and 6) occurred over the period 7 to 9 April 2023 and involved Z[…] P[…], aged 20. The complainant testified that after she accidentally bumped the accused at a tavern and his phone was damaged, the accused became angry and insisted she go with him. She said he forced her to his room, locked her inside, threatened her with a knife, and had sexual intercourse with her without consent, more than once, while she was kept there until Sunday evening. She further testified that the accused took her Mobicell cellphone when he released her and escorted her to a third party’s place. She reported the incident to her mother and then to the police.

The third incident (counts 7 and 8) occurred on 19 September 2024 and involved L[…] M[…], aged 18, who was related to the accused and considered him a “brother”. She testified that after visiting the accused’s premises where he sold liquor, she left to go to her boyfriend. She alleged that the accused blocked her path, threatened her, used intimidation including picking up a stone, and compelled her to return with him to his place, where he locked her in, assaulted her with a belt, threatened her with an iron rod, and had sexual intercourse with her without consent, more than once. She testified that she escaped when the accused was in the toilet, reported the matter initially to a friend, and later to family, after which a case was opened.

In each incident, the court treated the complainants’ accounts as describing coercion through force, threats, and confinement, followed by sexual intercourse occurring in circumstances the complainants described as submission under duress rather than consent. The accused’s version across the incidents was that the complainants either consented (counts 1/2 and 7/8) or were never at his house and no intercourse occurred (counts 4/5/6), and he denied the alleged theft.

3. Legal Issues

The central legal questions were whether the State proved beyond reasonable doubt that the accused:

Kidnapped each complainant by unlawfully and intentionally depriving her of freedom of movement (counts 1, 4, and 7).

Raped each complainant by engaging in sexual intercourse without consent, in circumstances attracting the sentencing regime referenced by section 51(1) of Act 105 of 1997 (counts 2, 5, and 8).

Stole the complainant’s Mobicell phone (count 6).

The dispute primarily concerned the application of legal standards to factual findings, particularly credibility assessment (including single-witness evidence) and whether the proven facts established absence of consent. In respect of certain counts, there was also a direct factual dispute (for example, whether the second complainant was kept at the accused’s premises and whether intercourse occurred at all).

4. Court’s Reasoning

The court applied the standard criminal burden of proof, emphasising that the State must prove guilt beyond reasonable doubt, not beyond all doubt. It endorsed the approach that an accused must be acquitted if it is reasonably possible that the accused might be innocent, and that before rejecting the accused’s version on probabilities the court must find it is not reasonably possibly true.

Because the evidence on each set of charges depended substantially on the complainant’s testimony, the court addressed the cautionary approach to single-witness evidence, referring to the statutory permissibility of conviction on the evidence of a single competent witness and the need for such evidence to be clear, satisfactory in material respects, and credible. The court treated this as requiring a careful assessment of factors both supporting and detracting from credibility, and a determination whether the testimony was nonetheless truthful.

On the facts, the court found that the complainants on all counts gave clear and straightforward accounts of how the incidents unfolded and that their evidence was not discredited in cross-examination. The court considered the complainants to be credible and evaluated consistency between complainants’ evidence and that of first report witnesses. In relation to the first complainant, the court regarded the evidence as consistent with that of a witness who described the complainant being left behind and the door being closed, and further relied on the medical observation of tears to the complainant’s private parts as corroborative of non-consensual intercourse. Although the court noted a contradiction between witnesses about whether one witness saw the complainant at the moment she was pulled, it treated this as not material, and referred to authority that contradictions do not necessarily justify rejecting evidence as they may indicate error rather than fabrication.

In dealing with consent, the court applied principles stated in the cited authority to the effect that consent must be active, that mere submission is not valid consent, and that absence of resistance is not, by itself, proof of consent. It reasoned that where intimidation or threats cause a complainant to abandon resistance, intercourse remains non-consensual. Applying this to the evidence, the court found that the complainants were forcefully compelled, threatened, and in some instances assaulted and confined, and that their submission occurred under fear rather than voluntary agreement.

The court also evaluated the accused’s testimony and found it to be unreliable, describing it as containing improbabilities, contradictions (including contradictions with matters put to witnesses and internal contradictions), and new material matters not previously put to the State’s witnesses. The court regarded as improbable the accused’s suggestion that multiple complainants, in different incidents, would have voluntarily participated and then fabricated rape allegations. The court further found the accused’s evidence regarding his lack of awareness of the first complainant’s age improbable on his own version, given his familiarity with the complainant and her family. Ultimately, the court rejected the accused’s versions as not reasonably possibly true and accepted the State’s evidence as proving guilt beyond reasonable doubt.

5. Outcome and Relief

The court convicted the accused on all remaining counts. It found the accused guilty of kidnapping in counts 1, 4, and 7, guilty of rape (each read with section 51(1) of Act 105 of 1997) in counts 2, 5, and 8, and guilty of theft in count 6.

The judgment excerpt records the verdicts but does not set out a separate sentencing order or any costs order.

Cases Cited

S v Ntsele 1998 (2) SACR 178.

S v Aswegen 2001 (2) SACR 97 (SCA), with reference to S v Van der Meyden 1999 (2) SA 79 (W).

S v Schakkel 2001 (2) SACR 185 (SCA).

R v Mokoena 1932 OPD 79.

S v Webber 1971 (3) SA 574 (A).

Micheal Jantjies v The State (Case No 532/2022) [2023] ZASCA (15 January 2024).

S v Mkohle 1990 (1) SACR 95 (A).

S v Swiggelaar 1950 (1) PH H61 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 208.

Criminal Law Amendment Act 105 of 1997, section 51(1).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The State’s evidence, though largely consisting of single-witness testimony on each incident, was accepted as credible and satisfactory in material respects, and was supported where relevant by first report evidence and medical findings. The court held that the complainants’ submission under threats, assault, and confinement did not amount to consent, and that the accused’s versions were not reasonably possibly true. The accused was accordingly convicted on all counts that remained after the withdrawal of count 3.

LEGAL PRINCIPLES

The State bears the onus to prove guilt beyond reasonable doubt, and an accused is entitled to acquittal if the accused’s version is reasonably possibly true. A court may reject an accused’s version only if it is satisfied that the version is not reasonably possibly true when evaluated against the totality of the evidence.

An accused may be convicted on the evidence of a single competent witness under section 208 of the Criminal Procedure Act 51 of 1977, but such evidence must be approached with caution and must be clear, satisfactory in material respects, and credible after careful scrutiny of strengths and weaknesses.

In assessing consent in rape matters, the court applied the principle that consent must be active; mere submission, particularly where induced by threats, intimidation, assault, or confinement, does not constitute valid consent. The absence of physical resistance is not decisive; all surrounding circumstances must be evaluated to determine whether there was genuine consent or submission under duress.