SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
(CIRCUIT COURT HELD AT KOMANI)
NOT REPORTABLE
Case No: CC 28/2026
In the matter between:
THE STATE
vs
THULANI MGODELI Accused
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mjame AJ
[1] The accused, Mr Thulani Mgodeli (the accused), faces seven counts, three of
which are kidnapping counts, three rape counts read with the provisions of
section 51(1) Act 105 of 1997 and one count of theft. Initially he was indicted
with eight counts, however, the state withdrew count number 3. He pleaded
not guilty to all counts and there was no plea explanation offered.
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[2] In respect of Count 1 and 2 it is alleged that the accused did unlawfully and
intentionally deprive Z[...] N[...], a 15-year-old girl of her freedom of movement
by locking her in his house against her will and commit an act of sexual
intercourse without her consent.
The allegations in count 4, 5 & 6 are that during the period 7 -9 April 2023 the
accused did unlawfully and intentionally deprive Z[...] P[...], a 20 -year-old
female of her freedom of movement by forcing her to go to his room and
locked her inside against her will and did then engage in sexual intercourse
without her consent. He also stole a Mobicell phone of the said complainant.
In count 7 & 8 it is alleged that the accused did unlawfully and intentionally
deprive L[...] M[...], an 18 -year-old girl of her freedom of movement, forcing
her to go to his house and locked her inside and did then engage in sexual
intercourse without her consent.
[3] The evidential material handed in by consent were:
Birth certificate of complainant in Count 1 & 2 - Marked exhibit “A”
Medical report of L[...] N[...] - Marked exhibit “B”
Medical report of Z[...] P[...] - Marked Exhibit “C”
Medical Report of L[...] M[...] - Marked Exhibit “D”
EVIDENCE OF THE STATE
[4] Z[...] N[...], a 21-year-old female testified about the incident which occurred on
the 29 August 2020 when she was 15 years old. She testified that on the
evening she was sent to the shop by one Nandipha. She proceeded to the
shop in company of Khaya, Qhawe and N[...]. They met the accused who also
sent them to buy some items at the shop. They came back and brought the
items at his place. On arrival accused told them that they forgot to buy bread.
He pushed Khaya, Qhaba and N[...] out of the room and locked her inside.
Accused then pulled her to his room. She resisted trying to free herself
without success. Masande, the brother to the accused was present in the
room but did not intervene.
Accused forcefully undressed her tight pants and underwear. He took an
empty bottle and sjambok threatening to kill her. He pushed her to the bed.
Accused then inserted his penis into her vigina without consent. He got up.
N[...] and others knocked at the door. Accused told them that the complainant
has left. She could not scream as she was afraid of the accused who
threatened to kill her. They went to report to the elderly people. Her family
arrived and knocked at the door. He refused to open. His brother told him to
open. Accused then stood up to open the door. She then got a chance to
dress up and advanced to the door. She got out of the room crying. She went
to her elder sister who was amongst the family members. She was taken to
one Mathembalethu who is a community committee member. She reported
the incident to her in presence of her family members. The matter was
reported to the police. She was taken to the doctor by the police officers for
examination.
[5] It was put to the witness that she voluntarily left behind in accused‘s place. He
had a love relationship with her. It was further put that they romance with each
other and engaged in sexual intercourse by consent. The complainant
vehemently denied the version of the accused.
[6] N[...] K[...], the sister to the complainant testified that she was in company of
the complainant to the shop when they came across with the accused who
also sent them to buy some items at the shop. They brought his items but
accused told them to go back and buy bread. He said complainant must
remain behind. Complainant refused. The accused pushed them out of the
room, that is, herself, Qhama and Khaya. They left to the shop leaving
complainant behind. On coming back the door was closed. They knocked and
accused told hi s brother to tell them that Z[...] was not there. They left to
accused told hi s brother to tell them that Z[...] was not there. They left to
report to the elderly people that accused had locked the complainant at his
place.
The version of the accused was put to the witness denying pushing them
outside the room.
[7] L[...] N[...], testified that N[...] with other children arrived at her place coming
from the shop and reported that the accused has locked the complainant,
Z[...], in his room. She knows accused. They are residing in the same area.
They proceeded to accused’s place and knocked. Masande, the brother of the
accused opened the door and kept the burglar closed. He told them that Z[...]
was not there. As they were leaving the complainant came out of the house
crying. She reported to her that accused had sexual intercourse without her
consent.
[8] Z[...] P[...], the complainant in count IV, V and VI, testified that she knows the
accused. They are residing at Bhekela Location in Ugie. On the evening of the
7 April 2023 she was sent by one Abadu the brother of her boyfriend to buy
liquor at kwaNombombo’s tavern. Her boyfriend was at work. She went to one
Emihle to accompany her. They arrived at the tavern. On arrival at the tavern
she accidentally bumped at the accused. The accused’s cell phone fell down
and it got damaged. The accused became furious. She apologised to him
promising to pay it in the mor ning when her boyfriend is back from work. The
accused did not want to listen. One Unam appeared and also apologised on
her behalf. Accused was in an angry mood. Accused told her to go with him
and wait for her boyfriend in his room till the following day. She left with
Emihle and accused. On the way he told Emihle to turn back. He was in a
fighting mood. He forced her to go along with him. She was scared of the
accused. They arrived at his place. Accused locked the door and drew out a
knife instructing her to undress. She refused, struggling with him. Accused put
the knife on her neck. She was also overpowered by the accused. She
submitted. Accused pushed her to the bed. He undressed her pants and
underwear. He then climbed on top of her and engaged in sexual intercourse
without her consent.
After he finished he stood up and sat on the chair having a smoke. He then
After he finished he stood up and sat on the chair having a smoke. He then
left, locking her inside the room. She tried to get out but the door and burglar
gate were closed. The windows were mounted with nett wire. She could not
get out.
The accused came back and again engaged in sexual intercourse with her
without consent. She was at accused’s place from Friday night till Sunday
evening. Accused released her on Sunday evening. Accused accompanied
her to Emihle’s place. The accused also took her mobicell phone which was in
her pocket. She did not tell Emihle of the ordeal. She was scared of the
accused who threatened to kill her. In the morning she left to her home. She
reported the incident to her mother. She then went to report the rape incident
to the police.
[9] On cross examination accused disputed that the complainant was in his
house. He denied ever having sexual intercourse with her on that night. The
complainant stood firm on her evidence that accused kidnapped her and
engage in sexual intercourse without her consent.
[10] N[...] P[...], the first report witness, who happened to be the mother of the
victim testified that, it was on Monday morning when complainant arrived at
her home crying. She told her that she was raped by Thulani. She last saw
the complainant on Friday when she left visiting the father of her children. The
matter was then reported to the police.
[11] L[...] M[...], the complainant in Count VII and VIII, testified that she knows the
accused. She is related to him and she takes him as a brother. On the 19
September 2024 she was in company of one Z[...] visiting accused at his
place where he runs a tavern. Z[...] was invited by the accused at his place.
On arrival the accused bought them snacks. She was going to visit her
boyfriend at Ntokozweni Location. In the evening she decided to leave. Z[...]
left to her place to fetch jersey to wear so that she accompanies her. The
accused also offered to accompany her to Ntokozweni location. At a certain
point Z[...] turned back and she was left walking with the accused. She felt
safe in company of the accused as they are related. On the way accused told
her to turn back to his place to take a machine. She refused telling him that
her to turn back to his place to take a machine. She refused telling him that
they were closer to Ntokozweni he must first accompany her. The accused
refused and blocked her way. He pulled her. She resisted, struggling with him.
The accused threatened to assault her. He picked up a big stone threatening
her. He continued pulling her whilst she was resisting. The accuse d was
angry and violent towards her. She told him to let her go. Accused followed
her behind driving her to his place. He was carrying the stone. When she
resisted on the way accused would pull her. She ended up going with him. On
arrival at his place accused opened and forced her to get inside the room,
which she did. The accused locked the room. He pulled her to his room. He
then instructed her to undress. She refused, struggling with him. Accused took
a belt and assaulted her with it forcing her to undress. Sh e grabbed the belt
and they continued struggling over it. As she was overpowering him, accused
went to look for something in between bed matrass. She stopped the accused
and told him she will undress herself. She was afraid of the accused. The
accused took out an iron rod threatening to kill her and leave the area to
Durban. She undressed herself under duress and remain wearing underwear.
Accused instructed her to lay on her back on the bed. She complied out of
fear. He climbed on top of her and opened her legs apart lowering her
underwear. He did then insert his penis into her vigina engaging into sexual
intercourse without her consent. Accused had sexual intercourse with her
more than once. In the morning accused gave her R10 to buy airtime which
she refused to take. She got a chance to leave when accused was in the
toilet. She went to Z[...]’s place and told her what had happened between her
and accused. She pleaded with Z[...] not to tell anyone about this incident.
She was afraid of the accused who threatened to kill her.
She later reported the incident to her sister who was in Mpumalanga. Her
sister reported to the elderly people. The matter was then taken up to the
police where a case was opened against the accused.
[12] On cross examination it was put to the witness that she was in a love
relationship with the accused. That she voluntarily remained with the accused
in his room after Z[...] has left. That the sexual intercourse was consensual.
in his room after Z[...] has left. That the sexual intercourse was consensual.
This was disputed by the complainant.
[13] Z[...] L[...], the first report witness, who is also a friend to the complainant,
testified that on the date of the incident she was invited by the accused to his
place. The accused is selling liquor at his place. She proceeded to accused’s
place with the complainant L[...]. On arrival the accused bought them some
snacks. After sometime in the evening the complainant told her that she was
going to Ntokozweni visiting her boyfriend. She accompanied her. The
accused later joined them. On the way she turned back to her home as the
accused offered to accompany complainant. She received a phone call from
the accused‘s phone. It happened that the caller was L[...] who told her that
she was being assaulted by the accused. The call was cut off. On the
following day in the morning, L[...] arrived at her place. She was crying and
was looking untidy. The complainant told her that the accused raped her
previous night. The complainant pleaded with her not to tell anyone about the
rape. She told her that the accused was vicious and threatened to kill her
should she disclose the incident.
EVIDENCE OF THE ACCUSED
[14] Thulani Mgodeli, the accused, testified under oath that he knows the
complainant, Z[...]. He was in a love relationship with her. On the date of the
alleged incident he met her. She was in company of Khaya, Qhama and N[...]
going to the shop. He also sent them to buy some items at the shop. They
brought the items in his room. It transpired that they forgot to buy bread. They
left to buy it. The complainant said she will not go to the shop and will remain
behind with the accused. He denied pulling the complainant to his room. He
admitted that he had sexual intercourse by consent. His evidence is that he
did not know the age of the complainant. He testified that the complainant is
falsely implicating him because she was assault ed by her sisters. She was
assaulted when they came to fetch her from his room asking her why she had
a love relationship with the accused knowing that accused had a love
relationship with her sister Thembakazi.
In relation to the charges in count 4,5,6, he denied that he forcefully pulled
Z[...], the complainant to his place and engaged in sexual intercourse with her.
His testimony is that he met complainant in company of Emihle and one
His testimony is that he met complainant in company of Emihle and one
Monwabisi. He only knows her by sight. He never spoke with her. They
proceeded to Nombombo’s tavern. Complainant told them that she had a
deal. They must go to her boyfriend’s place in the morning to take money.
Complainant had in her possession a sum of three hundred Rands which they
consumed it buying liquor. His evidence is that he left Nombombo’s tavern
around 23h00, leaving complainant behind with Emihle and Monwabisi. He
slept till the morning. He was woken up by the complainant’s boyfriend
knocking asking the whereabouts of the complainant.
In relation to count 7 and 8 he also disputed that he forcefully pulled
complainant to his room and engaged in sexual intercourse with her without
her consent. His evidence is that complainant remained with him in his room
after Z[...] left to fetch jersey at her home. Complainant told her that she will
sleep over there, she was no longer going to Ntokozweni. He also testified
that he was in a love relation with her sister, A[...] and Z[...]. His evidence is
that complainant did not want Z[...] to know that she slept at his place.
During cross examination he denied all the allegations levelled against him.
He contradicted the version which was put to the witnesses. He even
contradicted his own version. He came up with new matters which were
material in the case and which were not put to the witnesses to answer. He
could not answer clear questions put to him by the state.
ARGUMENTS
[15] The state argued that it has proved the guilt of the accused on all counts. The
evidence before court must be evaluated holistically. Although the evidence
on all counts is that of single witnesses, their evidence is clear and
reasonable in all material respect. The evidence points towards the guilt of the
accused, therefore, he must be found guilty as charged on all counts.
The defence argued that the court in evaluating evidence must consider
certain factors on the evidence of the 1 st complainant. That she was a minor
and she is a single witness. In relation to 2 nd complainant the court must
consider that the complainant had consumed alcohol and that the accused
disputes engaging in sexual intercourse with the complainant. There is no
disputes engaging in sexual intercourse with the complainant. There is no
DNA which links the accused to the offence.
The defence also submitted that evidence of 3 rd complainant must also be
evaluated with caution as it is the testimony of a single witness. It was
submitted that in evaluating the evidence holistically the benefit of doubt must
be in favour of the accused.
EVALUATION OF EVIDENCE
[16] It is trite law that for conviction to follow the state must prove its case beyond
reasonable doubt. In State vs Ntsele1 it was said that:
“Onus rested upon the state to prove the guilt of the accused beyond
reasonable doubt not beyond all shadow of doubt.”
An accused person may only be convicted if, after proper consideration of all
evidence presented, his guilt has been established beyond reasonable doubt.
It follows that an accused person must be acquitted if it is reasonably possible
that he might be innocent – (See) S vs Aswegen 2 with reference to State vs
Van deer Meyden3
Before rejecting an accused’s version on probabilities, the court must be able
to find, as a mater of probability, that the accused’s version is simply not
reasonable possible true. If the accused ‘s version is reasonably possibly true
in substance the Court must decide the matter on the acceptance of that
version. (See-S vs Schakkel)4.
[17] It is common cause that the accused and witnesses are of the same location
and they know each other. It is not in dispute that the accused did have
sexual intercourse with complainants in count one, two, seven and eight. The
issue in dispute is whether the sexual intercourse was consensual. In respect
of count four, five, six the issue in dispute is whether accused did kidnapped,
engaged in sexual intercourse with complainant and stole her cell phone.
[18] The evidence before court on all counts is that of single witnesses.
1 S vs Ntsele 1998(2) SACR 178.
2 S vs Aswegen 2001(2) SACR 97 SCA.
3 S vs Van deer Meyden 1999(2) SA 79 W.
4 S vs Schakkel 2001(2) SACR 185 SCA paragraph 50.
Section 208 of the Criminal Procedure Act 51 of 1977 provides that an
accused may be convicted of any offence on the single evidence of any
competent witness. It is generally understood that for the evidence of a single
witness to be acceptable, that evidence should be clear and satisfactorily in all
material respects 5 and it goes without saying that the witness should, in
addition, be credible.
[ 19] In State vs Webber 6, the Court held that:
“A conviction is possible on the evidence of a single witness such
witness must be credible, and the evidence should be approached with
caution. Due consideration should be given to factors which affirm, and
factors which detract from the credibility of the witness. The probative
value of the evidence of a single witness should also not be equated
with that of several witnesses.”
[20] The principles applicable in respect of a single witness evidence was
confirmed in Micheal Jantjies vs State 7,The SCA stated:
“When assessing the credibility of a single witness, it is crucial to
understand that there is no one -size-fits-all approach. The evidence
presented by such a witness must undergo the same vigorous scrutiny
as any other evidence. The trial court is tasked with meticulously
evaluating the evidence, considering both its strong points and
shortcomings. After this thorough examination the court must then
determine whether despite potential flaws or inconsistencies in the
testimony, it is convinced of the truthfulness of the witness account.
This careful and balanced evaluation is fundamental to ensuring a fair
and just legal process.”
[ 21] The complainants on all counts narrated to this court how the incidents
unfolded. They gave a clear and straight forward evidence. Their
evidence was not affected nor discredited under cross examination.
They answered all questions put to them in a satisfactory manner.
5 R v Mokoena 1932OPD 79 at page 80 (this judgement dealt with a section of an act that preceded s 208).
6 State vs Webber 1971 (3) SA 574 (A).
7 Micheal Jantjies vs State (Case N0 532/2022) [2023] ZASCA (15/01/24) @ par 15.
They were honest, credible and honest witnesses. The evidence of the
1st complainant, Z[...] is consistent with the evidence of N[...] and K[...].
The doctor who examined the complainant observed tears on the
private parts of the victim which corroborates the evidence of the
complainant. It is improbable for the person who consented to sexual
intercourse to sustain injuries on her vigina. However, there was a
contradiction on the evidence of N[...] and Z[...] whether she saw her
when she was pulled by the accused. This was not a material
contradiction. The same was later corrected by the witness on
questioning by the court.
In Mkohle 8, Nestadt JA commented that:
“Contradictions per se do not lead to the rejection of witness evidence,
they may simple be indicative of an error.”
The emotional condition of all the complainants is inconsistent with the person
who consented to sexual intercourse. The evidence of L[...] M[...] is consistent
with the evidence of Z[...] the first report witness. The evidence of Z[...] P[...] is
consistent with the evidence of the first report witness N[...] P[...]. There were
no contradictions in their evidence.
ISSUE OF CONSENT
[22] In Swiggler 9, AJA Murray when analysing consent stated that:
o Consent must be active, mere submission is not a valid consent.
o It is fallacious to take absence of resistance as per se proof of consent.
o Submission itself is not grant to consent and if a man so intimidates a
woman as to induce her to abandon resistance and submit to
intercourse to which she is unwilling he commits the crime of rape.
o All circumstances must be considered to determine whether the
passivity is proof of implied consent or whether it is merely the
8 S vs Mkohle 1990 (1) SACR 95 A.
9 S vs Swiggelaar 1950(1) PH H61A.
abandonment of outward resistance which the woman, while persisting
in her objection to intercourse is afraid to display or realises is useless.
[23] This is what happened to the complainants. They were forcefully pulled by the
accused. They were threatened and assaulted by the accused person. They
could not succeed in resisting. They submitted to what accused was
demanding. There was no consent to sexual intercourse by the complainants.
The evidence of the accused is full of improbabilities. It is improbable for the
complainants on diverse occasions who voluntarily went to his place and
willing parties to sexual intercourse just changed their minds and cried rape. It
is also improbable for accused to say he was not aware of the age of the
complainant in Count 1 and 2. The same accused according to him was in a
love relation with complainants’ sister. He even himself told this court that he
used to see her being a child who would come to Ugie from Barkley.
[24] Having evaluated the evidence before court in its totality I find that the state
has proved the guilt of the accused on all counts. The accused was a poor
witness. His evidence was unreliable. I do not accept the evidence of the
accused as it is not reasonable possibly true.
CONCLUSION
[25] I accordingly come to the following findings:
i. On count 1, being Kidnapping of Z[...] N[...], the accused is
found guilty.
ii. On count 2, being Rape read with section 51(1) of Act 105 of
1997 of Z[...] N[...], the accused is found guilty.
iii. On count 4, being Kidnapping of Z[...] P[...], the accused is
found guilty.
iv. On count 5, being Rape read with section 51(1) of Act 105 of
1997 of Z[...] P[...], the accused is found guilty.
v. On Count 6, being theft, the accused is found guilty.
vi. On count 7, being Kidnapping of L[...] M[...], the accused is
found guilty.
vii. On count 8, being Rape read with section 51(1) of Act 105 of
1997, the accused is found guilty.
_________________________
P C N MJAME
ACTING JUDGE OF THE HIGH COURT
Heard: 20 to 24 July 2026
Delivered: 28 July 2026
APPEARANCES
Counsel for the State: Advocate Van Rooyen
Instructed by: Office of Director of Public Prosecutions
Makhanda
Counsel for the accused: Mr Charles
Instructed by: Legal Aid South Africa
Makhanda