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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: CC22/2025
Reportable Yes/No
In the matter between:
THE STATE
and
Z[...] B[...] Accused
JUDGMENT
CENGANI-MBAKAZA J
Introduction
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[1] Around 2024 and prior thereto, the three minor children, aged 12, 6 and 9
years respectively, resided with their stepfather, being the accused, and their
mother, being the accused’s girlfriend. This was on a farm located at
Nqanqarhu, where the accused had been employed as a farm labourer.
[2] It is common cause that as an employee, the accused would, in the
ordinary course, wake up in the morning, go to work, and return home for lunch
between 13:00 and 14:00, which was approximately one hour.
[3] The children were attending school and the mother was unemployed at
the time. She would on occasion go to town to run errands and, in some
instances, to the clinic to collect her medication.
[4] In accordance with their routine, the accused would sometimes
accompany the mother to town and to the clinic, especially during month -end.
Based on their school routine, the children would return home early and, on
occasion, would be in the company of the accused in the absence of their
mother.
[5] The house in which they resided was of a humble nature. The accused
and his girlfriend slept in the kitchen and utilised a bucket at night for ablution
purposes. The television set was also situated in the kitchen. All three minor
children would sleep in the bedroom.
[6] When the opportunity presented itself, the three minor children made
disclosures of sexual violation, which led to the arrest and prosecution of the
accused. Since they testified in camera, their names shall be withheld to protect
their identities in the interests of justice.
The charges
[7] The indictment reads thus:
Count 1: Rape in contravention of section 3, read with sections 1,
56(1), 57,58,59 and 60 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007 and read with section
64 of the Criminal Procedure Act, 51 of 1977(CPA).
In that during May to June 2024 at or near Woodcliff Farm, Nqanqarhu,
in the Joe Gqabi magisterial district, the accused did unlawfully and
intentionally commit acts of sexual penetration with “ECB”, a 12 -year-
old girl, by having intercourse with her per vaginam without her consent
and against her will.
Count 2: Rape in contravention of section 3, read with sections 1,
56(1), 57,58,59 and 60 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007.
In that during June to July 2024 and at the place mentioned in count 1, the
accused did unlawfully and intentionally commit an act of sexual
penetration with “ALB”, a 6- year-old girl, by having intercourse with her
per vaginam without her consent and against her will.
Count 3: Rape in contravention of section 3, read with sections 1,
56(1), 57,58,59 and 60 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007.
In that during the period mentioned in Count 2, and at the place
mentioned in Count 1, the accused did unlawfully and intentionally
commit an act of sexual penetration with “ID”, a 9 -year-old girl, by
having intercourse with her per vaginam without her consent and against
her will.
The evidence
[8] All three minor children testified via a closed -circuit television, through
an intermediary. The first child to give evidence was “ECB”, the complainant in
Count 1. During her testimony, she used the names “accused” and “Ta Beans”
interchangeable when referring to the accused. She testified that on one
occasion, around May 2024, her mother had gone to the clinic and one of her
siblings was not at home as she had gone to the location.
[9] She went to school as usual, came back home and found “Ta Beans”
there. “Ta Beans” instructed her to change out her school uniform. While she
was in the process of doing so, “Ta Beans” entered the bedroom. He instructed
her not to get dressed but to get onto the bed, which she did. “ECB” testified
that she stood next to the bed and suddenly “Ta Beans” undressed himself and
was only left with his underwear.
[10] He took a blanket from a nearby small bed and threw it over her face. He
undressed her panties and his underwear. He then climbed on top of her,
inserted his penis into her vagina and copulated. After that, he ejaculated and
made a sound. He then wore his clothes and went to the kitchen. “ECB”
testified that when she got out of bed, her vagina secreted some fluids. “Ta
Beans” prepared warm water for her and told her to bath, which she did. He
threatened to kill her and her mother if she were to disclose the incident to
anyone.
[11] “ECB” testified that she went to the neighbour Nasiphi and asked for
airtime because she wanted to phone her mother. Nasiphi was unable to help.
Later that day, her mother returned home with other siblings. When asked if she
disclosed the incident to her mother, “ECB” testified that she did not because
she was afraid that the accused would kill her and her mother.
[12] In her testimony, “ECB” narrated another incident which occurred in the
same year before she went to Durban for holidays. She was doing her
homework when the accused asked her to undress herself. He went to the
kitchen and locked the door. He instructed her to get onto the bed. “ECB”
looked at him and said nothing. “Ta Beans” took out a knife from his pocket
and threatened to kill her and her mother.
[13] Because she was afraid, so she testified, she went to bed as instructed.
“Ta Beans” threw a small blanket over her face. He got on top of her, opened
her legs and inserted his penis into her vagina. He ejaculated and made a sound.
“ECB” testified further that the accused went to the kitchen, prepared warm
water and instructed her to bath which she did. He then instructed her not to
disclose the incident and posed similar threats to her. He then left and went to
work.
[14] When “ECB” came back from the June holidays from Durban, “ID” told
her that she had something to tell her. She informed her that the accused had
raped her. “ECB” kept quiet in shock, “ID” further told her that she was afraid
to tell her mother. “ECB” testified that upon hearing this, she was angry.
Nevertheless, they attended school as usual and returned in the afternoon.
[15] Later that night, so she testified, “Ta Beans” entered the bedroom where
they were sleeping and pulled her legs. Her mother witnessed this and
confronted him. “Ta Beans” denied having done anything wrong. He instead,
explained that he went to the bedroom to relieve himself in the bucket.
[16] “ECB” testified that her marks dropped at school and her behaviour
changed, to the extent that one of her teachers, Mrs Namhla Prudence Nqina
(Mrs Nqina) called and asked her what was going on. She informed her that her
stepfather was abusing her. Mrs Nqina called the principal, who also
interviewed her. She informed the principal that her stepfather had raped her. It
was decided that this issue would be attended to after the school holidays.
[17] “ECB” testified that after the school holidays, when “ID” told her about
her rape incident, she again went to Mrs Nqina and informed her. Mrs Nqina
called the principal; they were all interviewed separately, including the 6 -year-
old girl, “ALB”, in the presence of their mother. It transpired that all three of
them had experienced similar incidents. Her mother could not cope with the
news and kept crying during the interviews.
[18] “ALB”, the complainant in Count 2, testified that one day when her
mother had gone to the clinic, she was home with “Ta Beans” only. “ECB” was
in Durban for holidays. “Ta Beans” instructed her to undress, which she did. He
got on top of her, took off her panties, inserted his private parts into hers while
closing her mouth with one hand. She testified that she was crying at all times.
When he finished, she saw a whitish substance on her private part. “Ta Beans”
threatened that he would kill her and her mother if she were to disclose the
incident. She reported the matter to “ECB” and later to the school teachers.
[19] “ID”, the complainant in Count 3’s testimony, can be summarised as
follows: one day, when “ECB” was in Durban, their mother was not at home,
and she was left with “Ta Beans” and one “ A[...]”, a minor. “Ta Beans” called
her to the bedroom and instructed “ A[...]” to go to the kitchen to watch
television, which he did. “ID” testified that “Ta Beans” took out her clothes and
also undressed himself. He put a big pillow on her face, and the music was
playing loud in the neighbourhood at that time.
[20] Thereafter, so she testified, “Ta Beans” jumped on top of her. He inserted
his private part inside hers and copulated. After he had finished, he stood up and
threatened that he would kill her and her mother if she were to disclose the
incident to anyone.
[21] “ID” testified that she was shocked; she went to “T’s place, a neighbour
and advised “T” that “Ta Beans” had touched her. “T” informed her mother
about the incident. Her mother confronted “Ta Beans”. “Ta Beans” explained
that he had been suffering from a toothache and would not have touched the
child.
[22] “ID” testified that she informed “ECB” about the rape incident, and they
all agreed that the matter should be reported to the school teacher, which they
did. She further testified that she witnessed “Ta Beans” pulling “ECB”’s leg on
a certain night, and that led to a confrontation between “Ta Beans” and her
mother. In her testimony, “ID” also confirmed the interviews she had with the
school teacher and the principal.
[23] During cross -examination, “ID” testified that she was crying loudly
during the rape incident, however, she could not be heard because there was a
big pillow that was thrown over her face. When asked why she reported that
“Ta Beans” touched instead of saying he raped her, she testified that she was
scared, “Ta Beans” had threatened to kill her and her mother.
[24] Mrs Nqina, the school teacher, testified that she is employed by the
Department of Education. Between June and July 2024, she was a teacher at
Joel’s Hoek Farm School. She knows the minor children involved in the matter.
She testified that as a teacher who deals with children, she is observant. She
noticed that “ECB” had lost some weight. Because she is a brilliant child, she
also noticed that her grades had decreased significantly.
[25] Because she suspected that “ECB” was being bullied at school, she called
her aside for a private discussion to investigate what was going on. She spoke to
her and advised her to speak up when she was ready. Mrs Nqina testified that
she stood up as she thought their conversation had ended. “ECB” started crying
and advised her that her stepfather had been raping her. She requested “ECB’s
permission to inform the principal, which she gave. “ECB” repeated the
narration to the principal. They decided to deal with the matter after the school
holidays.
[26] In the second week, after the school reopened, and immediately after the
morning prayer, “ECB”, “ALB” and “ID” came to see her. They reported that
their stepfather had been raping them on different occasions. They repeated the
account to the principal and their mother, who knew nothing about these
incidents.
[27] “TB”, the mother testified and confirmed that she was called at school
and the children reported to have been raped by “Ta Beans”. The report was
made in the presence of the principal and Mrs Nqina. The children were taken
to hospital for medical examination. “TB” testified that “ALB” had a tear and
vaginal infection. She further testified that there was a day when “ID” reported
that “Ta Beans” had touched her. “TB” informed the court that at that stage
“ID” was scared and advised that she should keep on checking on her. She
could feel that the child was cold and went to the room to confront “Ta Beans”
about the touching. He said he was suffering from a toothache and denied
having touched the child.
[28] One day, so she testified, an alarm went off around 4:00 as usual. She
saw “Ta Beans” inside the bedroom pulling “ECB’s legs. She confronted him.
He ignored her and later advised her that he was rushing to work. “TB” testified
that “Ta Beans” was ill -treating the children and sometimes he would insult
them.
[29] The last witness to testify was Doctor Tandokazi Sondishe (“Dr
Sondishe”), a medical officer. She possesses an MBChB, which she started in
Cuba and later completed at Walter Sisulu University in 2021. She did an
internship for two years at Philenomi Academic Complex and community
service at Mc Clear Hospital. Dr Sondishe informed the court that she examined
the three minor children and compiled a medical report (J88) in respect of each
child.
[30] According to her examination, “ECB” was generally well with no bruises
or lesions in the body. Although the perineum was intact, with no swelling or
bruising, there was mild tenderness on the vulva. There was a brownish
discharge, an indication of vaginal infection. “ECB’s hymen was broken, an
indication of penetration in the vagina. She testified that she could not collect
samples because the incident was reported to have occurred in the previous
month.
[31] In relation to “ALB’s examination, she was generally and clinically well.
However, upon gynaecological examination, she noted that the vulva vestibule,
clitoris, labia minora and her vagina were swollen with yellowish discharge, an
indication of vaginal infection or sexually transmitted diseases. She also noted
tenderness on palpation. The hymen was broken. She therefore concluded that
these were signs of sexual trauma which had occurred recently.
[32] The Dr further examined “ID” and observed that generally she was
clinically well. The perineum was intact with no bruising or lesions. There was
a mild swelling of the vagina and also tenderness on palpation. She collected no
samples as it was reported to her that the incident had happened more than 72
hours ago. In her examination, she concluded that the injuries that the child
sustained in her genitals, coupled with a broken hymen, were indicative of
vaginal penetration. With this evidence, the state closed its case.
[33] The accused gave evidence in his defence and denied the allegations
against him. He stated that while he did return home for lunch, the children
were, in most instances, in the company of him and their mother. He was never
left alone with the children. He further testified that he accompanied his
girlfriend whenever she went to town, including when she went to collect
medication from the clinic. In cross -examination, he conceded, however that he
would at times be left with the minor children at home.
[34] He informed the court that he does not dispute the medical examination
by the Dr. However, so he stated, he did nothing to the children; he never raped
them. According to his knowledge, “ECB” had a boyfriend who bought her a
cell phone. He further testified that all three minor children, including “ECB”,
had been playing with boys. Basically the accused was insinuating that the three
minor children may have been sexually active at the time of the alleged rape
incidents. With this evidence, the defence closed its case.
The issues
[35] The central issue for determination is the identity of the perpetrator(s)
who raped the three minor girls.
The legal principles
[36] In criminal trials, nothing can be properly examined without reaffirming
that when it tries a person for allegedly committing an offence, the state is
required to prove the guilt of the accused beyond reasonable doubt.1
[37] When a court finds that the guilt of an accused has not been established
beyond reasonable doubt, that accused is entitled to an acquittal even if there
may be suspicions that he or she was indeed the perpetrator of the crime in
question. The Supreme Court of Appeal (“SCA”) in Shackell v S2, stated:
‘...the court does not have to be convinced that every detail of an accused’s version is
true. If the accused’s version is reasonably possible true, in substance, the court must
decide the matter on acceptance of that version. Of course, it is permissible to test the
accused’s version against the inherent probabilities; but it cannot be rejected merely
because it is improbable. It can only be rejected on the basis of inherent probabilities
if it can be said that it will be so improbable that it cannot be reasonably possible
true.’
[38] In this matter, the court is faced with the evidence of young children.
Each child is a single witness in respect of her own case. Furthermore, there is
an issue of identification, as already noted at paragraph 35. It is a legal principle
that where all these key issues are central to the evaluation of evidence, the
cautionary rules find application. 3 In both instances, that is, where there is
evidence of a single witness and evidence of identification, it is trite that a
1 S v Shackell 2001 (4) SA 1 (SCA) 279 at para [30].
2 Fn 2 above.
3 S v Mthethwa 1972 (3 SA 766 (A) at 768 A-C.
witness must give a clear and precise account in all material aspects. Therefore,
such evidence must be credible and reliable.4
[39] Fortified by section 208 of the CPA, our courts had on many occasions
convicted the accused on the evidence of a single witness. Section 208 of the
CPA provides,
‘An accused may be convicted of any offence on the single evidence of a competent
witness’
[40] The SCA in ICM v The State, 5 remarked that although the evidence of a
single witness must be clear and precise in all material aspects, it does not mean
it must be flawless and beyond criticism.
[41] To ensure that the evidence of a child witness can be relied upon as
provided in s 208 of the CPA, the SCA stated in Woji v Santam Insurance Co
Ltd6, that a court must be satisfied that the child's evidence is trustworthy. The
SCA held:
‘Trustworthiness…depends on factors such as the child’s power of observation, his
power of recollection, and his power of narration on the specific matter to be
testified…. His capacity of observation will depend on whether he appears ‘intelligent
enough to observe’. Whether he has the capacity of recollection will depend again on
whether he has ‘sufficient years of discretion to remember what occurs’ while the
4 Fn 3 above
5 ICM v the State (692/2021) [2022] ZASCA 108 (15 July 2022) para 22.
6 Woji v Santam Insurance Co Ltd 1981(1) SA 1020 (A) at 1028B -D, Maila v The State (429/2022) [2023]
ZASCA 3 (23 January 2023) para 17.
capacity of narration or communication raises the question whether the child has the
capacity to understand the questions put, and to frame and express intelligent
answers.’
[42] Referring to Vilakazi v S 7, the SCA, in Maila8, cautioned against what is
commonly known as the double cautionary rule. The SCA held: ‘double
cautionary rule should not be used to disadvantage the child; the evidence of a
child must be evaluated in totality’ . Notably, Section 60 of the Criminal Law
(Sexual offence and Related Matters Amendment Act 32 of 2007 provides,
‘The court may not treat the evidence of a complainant in criminal proceedings
involving the alleged commission of a sexual offender pending before that court with
caution, on account of the nature of the offence’.
Discussion
[43] Following closing submissions by counsel, the State sought a conviction,
highlighting consistencies and corroboration in the evidence of the three minor
children. In contrast, the defence contended that the accused should be afforded
the benefit of doubt.
[44] In essence, the following are the points of criticism levelled against the
evidence of the state: Mr Geldenhuys, counsel for the accused, argued that
ECB’s evidence appears to be a recitation. The narration, so he argued, is the
7 Vilakazi v S [2016] ZASCA 103.
8 Fn 6 above at para [18].
same in respect of both incidents. Counsel highlighted the use of a knife, the
instruction to bath as well as the blanket that was thrown over the face.
[45] In addition, he argued that the accused would not have raped “ID” when
“A[...]” was present in the house. This evidence, so he argued, should be
rejected as unfounded. Although counsel acknowledged that the accused
advanced a speculative hypothesis in his defence, when he testified that these
girls had boys, he submitted that such speculation should not be used against the
accused.
[46] Furthermore, counsel contended that the limited cross -examination in
relation to ALB’s evidence was due to a lack of detail in her evidence -in-chief.
In a nutshell, counsel submitted therefore that the evidence presented by all the
minor children was not clear and precise, especially on material aspects.
The court’s evaluation of evidence
[47] The principles guiding the court in evaluating evidence are well -
established. In S v Chabalala,9 the following was stated:
‘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, 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
9 2003 (1) SACR 134 at para 15.
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. Once that
approach is applied to the evidence in the present matter the solution becomes clear.’
[48] Our courts have consistently reiterated that there is no thumb -nail or
formulaic test to apply when it comes to the evaluation of a single witness. The
court is expected to weigh all the facts presented. In particular, the merits and
demerits, as well as the credibility issues on both sides. The court must be
satisfied that truth has been told. Our courts have further cautioned that the
exercise of caution must not be allowed to displace the exercise of common
sense.10
[49] Considering the evidence of the three young children, as well as the Dr
who highlighted broken hymens and injuries to the minor children’s genitals, it
has been proven that the three young girls were penetrated per vaginam.
[50] I find it difficult and indeed impossible to conclude that “ECB’s narration
was a recitation as suggested by counsel for the accused. Instead, it is
reasonable to conclude based on the facts presented by all the minor children,
that the perpetrator applied more or less the same modus operandi when
sexually violating them. One is able to highlight, for instance, the threats made
10 S v Sauls 1981 (3) SA 172 (A) at 180E-G.
after the rape, the instruction to bath which can be equated to an act to conceal
evidence, as well as the pillow or blanket thrown over the face to minimise the
raising of an alarm.
[51] I agree with Ms Phikiso, counsel for the state, that a further significant
feature indicative of a consistent modus operandi is that the perpetrator infected
the children with a sexually transmitted infection. This constitutes, inter alia ,
compelling evidence that one and the same person was responsible for the
violation of all three minor children. On the totality of the evidence presented,
DNA or medical evidence is not necessary to reinforce this particular finding.
[52] In relation to the issue of identity, there is no evidence suggestive of the
fact that the three minor children decided to shield the real culprit and falsely
implicate the accused. The suggestion by the accused that they were involved
with boys is rejected out of hand. Firstly, because this was raised as an
afterthought, and secondly because the evidence suggests that these children
were of a very tender age when the incidents occurred. There is nothing to
suggest that they were sexually violated by anyone other than the accused, save
for the speculative allegations made by him.
[53] In my view, the evidence of all three minor children was trustworthy.
Despite the fact that they were cross -examined by the defence, they were
consistent in their testimonies especially on material issues. They were all
adamant that “Ta Beans” is the perpetrator of the crimes. It is common cause
that “Ta Beans”” is the accused before court. When identifying the perpetrator,
the three minor children were confident and steadfast. There was no suggestion
that they were mistaken about the identity of the perpetrator.
[54] They identified the perpetrator to the school teacher, the principal and
later to their mother. Most significantly, they all received threats not to disclose
the ordeal. They carried out the instructions and only disclosed the ordeal when
the opportunity presented itself. In my view this excludes any suspicion that
they may have decided to conspire against the accused. Although it was
suggested in cross -examination that the accused suspects that the children may
have been influenced by their mother to falsely implicate him, there is no
evidence to support that narrative. Instead, clear evidence was adduced that the
mother knew nothing about this and was even crying when it was narrated to
her.
[55] In my view, the accused’s version that he did not rape the three minor
children is found not to be reasonably possibly true. The probabilities
overwhelmingly point to him as the perpetrator of the offences in question.
Consequently, I conclude that the state has proved the guilt of the accused
beyond reasonable doubt in respect of all charges.
Verdict
[56] Resultantly, the verdict is pronounced thus:
Count 1 : Rape in contravention of section 3, of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 32 of 2007,
read with section 51(1) of the Criminal Law Amendment Act 105 of
1997, the accused is found guilty.
Count 2 : Rape in contravention of section 3, of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 32 of 2007,
read with section 51(1) of the Criminal Law Amendment Act 105 of
1997, the accused is found guilty.
Count 3 : Rape in contravention of section 3, of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 32 of 2007,
read with section 51(1) of the Criminal Law Amendment Act 105 of
1997, the accused is found guilty.
__
N CENGANI-MBAKAZA
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the State : Adv Phikiso
Instructed by : Director of Public Prosecutions
Makhanda
Counsel for the Accused : Adv Geldenhuys
Instructed by : Legal Aid South Africa
Makhanda
Heard on : 20, 21, 22, 23 April 2026 and 27,
28
July 2026
Judgment Delivered on : 30 July 2026