IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: CA 82/25
In the matter between:
NTSIKELELO MBIKO Appellant
and
THE STATE Respondent
APPEAL JUDGMENT
CENGANI-MBAKAZA J
Introduction
[1] On 5 May 2020, IK, a 4 - year- old girl, complained to her mother during
bath time that her vagina was tampered with by a person she identified as
Bamba or Tuba’s brother or Bamba’s brother/uncle and was therefore painful.
Pursuant thereto, the appellant was arrested and prosecuted in Butterworth
Regional Court (the trial court) on one count of rape. The state alleged that on
or about May 2020, the appellant did unlawfully and intentionally commit an
act of sexual penetration with the complainant by inserting his penis into her
vagina without her consent.
[2] The appellant was convicted and sentenced to 15 years’ imprisonment
following the trial court’s finding that substantial and compelling circumstances
existed justifying a deviation from the prescribed sentence of life imprisonment.
Aggrieved by the conviction, the appellant applied for leave to appeal, which
was subsequently granted by the trial court. Therefore, this appeal is against
conviction only.
The facts
[3] Around May 2020, the appellant was a student residing in a rented flat in
Butterworth. He arrived in the flat in 2018 when he was doing his first year. In
the same yard, the appellant stayed with the landlord and, apparently, other
residents. His primary residence was in Mputhi location, Dutywa. This is where
his parents stayed, specifically his father. Although he resided not far from IK’s
place, he testified that he did not know IK prior to the proceedings, and only
saw her for the first time when she testified in court.
[4] To a large extent, IK’s testimony is common cause, save for the issues
relating to vaginal penetration and identity. She testified via closed -circuit
television and through an intermediary. IK testified that she used to play with
other children at Tuba’s home. On the unspecified date in May, she was playing
with two other children, namely O, T and I. Tuba’s brother then instructed the
other children to go and buy bread from a nearby shop.
[5] He took her to a bedroom, undressed her skirt and underwear. He also
removed his shorts and underwear. He got on top of her, took out his penis and
inserted it in her urinary organ. IK testified that she cried, and Tuba’s brother
warned her that should she inform her mother about the incident, he would
assault her.
[6] She then went home, whilst her mother was bathing her, she disclosed the
incident. They went to Tuba’s place but did not find his brother. She pointed out
the room where the incident had taken place. She was later taken to hospital
where she was examined.
[7] IK’s mother, PK, testified that following IK’s disclosure that her genitals
had been tampered with by a person known as Bamba, she went to Bamba’s
place. She went to the main house and reported to the elders what IK had told
her. There was another child in the house who was asked to call Ntsikelelo.
Ntsikelelo could not be found. PK told Bamba’s mother that she could not wait
any longer as she was going to the police station. She proceeded to the police
station and thereafter to the hospital. She was infor med that the doctor was not
available.
[8] On the following day, while on her way to hospital, PK again went to
Bamba’s place. Whilst she was there and about to leave, Ntsikelelo entered
through the back door. That is when Bamba’s father said: “Here is Ntsikelelo”.
When asked if she knew Ntsikelelo before the incident, PK testified that she did
not know him at all. Although the appellant’s legal representative raised some
reservations regarding the medical report in the trial court, the report was
subsequently handed in as an exhibit. IK was examine d by a forensic nurse who
noted no other abnormalities in her vagina except bumps at 6 o’clock.
[9] In his defence, the appellant gave the same version that was put to IK’s
mother. He testified that on 2 May 2020, which was a Saturday, he left
Butterworth around 13h00 heading to his primary residence in Mputi location,
Dutywa. Before he left, he had locked his rented flat, and the key was in his
possession. On the following Monday, he received a report via Facebook from
his landlord’s daughter that his father’s contact numbers were requested.
[10] Because he thought this was in relation to possible rental arrears, he
enquired if his father had paid rent. His father confirmed that he had. It
transpired, however, that there was a R50 shortfall in the payment of the rent.
Because he wanted to pay the outstanding money, he asked his father, who was
going to East London, to drop him off at his flat in Butterworth. He therefore
parted ways with his parents on 6 May 2020.
[11] Upon arrival, the landlord called him into the dining room. He asked his
wife to narrate the story of what had happened. This was in relation to the rape
allegations against him. Later that day, he received a call from the detectives
instructing him to go to their offices, which he did. He was subsequently
charged and detained. The appellant testified that despite locking his flat when
leaving, he would sometimes find his items missing. He basically stated that his
flat was easily accessible. The appellant testified that although he was a suspect
in this case, he was never identified by IK or pointed out.
[12] To sum up, the appellant’s version was that between 2 May and 6 May
2020, he was at his primary residence with his parents. He called his father to
testify in his defence. The appellant’s father, MM, confirmed that the appellant
was his son. He testified that the appellant arrived home in Dutywa before 5
May 2020 and left on 6 May 2020.
[13] When asked how he could remember the date, he testified that he had
planned a trip to East London (kuGompo City) with his wife on 6 May 2020.
The appellant asked him to drop him off at his flat in Butterworth, which he
did. He later received a call from the appellant reporting what the landlord had
told him. He did not take the allegations seriously. He later received another call
from the appellant informing him that he was arrested. It was then that he
dropped everything and proceeded to Msobomvu Police Station where the
appellant was detained. With this evidence, the defence closed its case.
The grounds of appeal
[14] The appellant relies on the following grounds of appeal:
14.1 That the learned magistrate erred in finding that the state had
proved the guilt of the appellant beyond reasonable doubt, more
specifically in relation to the elements of the crime and the identity
of the perpetrator.
14.2 That the learned magistrate erred in not having regard to the
evidence of PK, who stated that he did not know the appellant until
he was introduced to the state witness. Essentially, the fact that no
identification parade was held was not taken cognisance of by the
trial court.
14.3 In addition, the learned magistrate was incorrect in dismissing the
evidence of the appellant’s father who confirmed the appellant’s
alibi.
14.4 The appeal also focuses on the magistrate’s failure to take
cognisance of the fact that the flat was a rented residence with
other people having access to it.
The legal principles
[15] It is a well -established principle that the state must prove the guilt of an
accused person beyond reasonable doubt. The accused may only be acquitted if
his version is reasonably possibly true. In S v T,1 the court held that:
"The State is required, when it tries a person for allegedly committing an offence, to
prove the guilt of the accused beyond a reasonable doubt. The high standard of proof -
universally required in civilized systems of criminal justice - is the core component of
the fundamental right that every person enjoys under the Constitution and under the
common law prior to 1994, to a fair trial. It is not part of a charter for criminals and
neither is it a mere technicality. When a court finds that the guilt of an accused has not
been proved beyond a 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.”
[16] In this instance, it is necessary to examine whether the trial court properly
applied the cautionary rules relevant to single -witness evidence 2, the alibi, as
well as the special caution required when identification is in issue. 3 Bearing in
mind that the correct approach to the evaluation of evidence requires it to be
considered objectively and as a whole.4
Discussion
1 2005 (2) SACR 318 (E) para 37.
2 Section 208 of Act 51 of 1977 entails that an accused may be convicted on the evidence of a single and
competent witness; see also S v Sauls 1981 (3) SA 172 (A) at 180E-G.
3 S v Mthethwa 1972 (3) SA 766 (AD) at 768A-C.
4 S v Chabalala 2003 (1) SACR 134 (SCA).
[17] It is clear from the trial court record that the fact that IK’s vagina was
tampered with was never an issue. However, before us, counsel for the appellant
argued that there were no admissions that IK had been raped. In essence, the
argument was that the issue of penetration was not properly canvassed and
established beyond reasonable doubt. Furthermore, the truth and correctness of
the contents of the medical report (J88) was not admitted by the defence.
[18] While counsel’s position may be correct in relation to the manner in
which the J88 was submitted, it is at least common cause that IK’s vagina was
tampered with. The undisputed evidence is that she complained of pains while
being bathed by her mother. Furthermore, even in his evidence in chief, the
appellant did not dispute this fact. To put issues into perspective, it is apposite
to extract the relevant portions of the record, which are as follows5:
“…MR TUTU: You said it is one of the reasons that you may think have driven this
toddler to say you raped her the children of the landlord could then make yourself a
duplicate key and do what they think in your flat.(sic) What is that…[indistinct]
ACCUSED: Also, I am not disputing that there is something that happened to the
child. I think it could happen that since they saw or they knew that I was funding him,
they could use that to their advantage (sic)”(my underlining)
[19] For these reasons, inter alia, I directed the parties to focus on the issue of
identity which in my view constitutes the central dispute and the main issue in
5 Transcribed record, page 13, lines 8-15/page 98 of the index bundle.
this appeal. In brief, the parties advanced contrary submissions. The appellant’s
counsel argued that the appeal ought to succeed on the basis that the state had
failed to prove the identity of the perpetrator beyond reasonable doubt. Counsel
was critical of the manner in which the investigation and subsequent
prosecution were conducted. These points of criticism will be ventilated in the
course of this judgment.
[20] Conversely, counsel for the state persisted with the submissions in the
heads of argument contending that IK pointed out the appellant’s flat and that
she was acquainted with him prior to the incident. Since the incident occurred
during the day, so she argued, IK had sufficient opportunity to observe the
perpetrator.
[21] In the heads of argument, counsel referred to Woji v Santam Insurance
Company Ltd 6 and submitted that IK’s evidence, despite her age, was
consistent and clear. She answered questions put to her with certainty, clarity
and intelligence and without any difficulty. Essentially, counsel contended that
the trial court had correctly applied the cautionary rules applicable in the
evidence of a single witness. She further submitted that the alibi was not
timeously disclosed; hence, it was rejected by the trial court. On those bases, so
the argument went, the appeal should be dismissed.
6 1981 (1) SA 1020 (A).
Analysis
[22] This court acknowledges the trite principle that its powers to interfere
with findings of fact made by the trial court are limited. In Rex v Dhlumayo and
Another,7 (Dhlumayo) Schreiner JA set out the principle as follows:
‘Ordinarily the appellant in a criminal appeal has to satisfy the appellate court that the
verdict was wrong, at least to the extent that the trial court should have had a
reasonable doubt as to his guilt. Where there has been no misdirection on fact by the
trial Judge, the presumption is that his conclusion is correct; the appellate court will
only reverse it where it is convinced that it is wrong.’
[23] Most significantly, as enunciated in Dhlumayo,8 “the trial Judge has
advantages - which the appellate court cannot have - in seeing and hearing the
witnesses and in being steeped in the atmosphere of the trial. Not only has he
had the opportunity of observing their demeanour, but also their appearance
and whole personality. This should never be overlooked. Consequently, the
appellate court is very reluctant to upset the findings of the trial Judge.”9
[24] Notably, the Constitutional Court (CC) in Makate v Vodacom
(Pty)(Ltd)10, emphasised that regard to be had to a trial court’s credibility
findings cannot be overstated. The CC added:
7 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705-706; S v Monyane 2005 (1) All SA (SCA) at 539.
8 See Dhlumayo fn 6 above, paras 3 and 4.
10 2016 (4) SA 121 (CC) (26 April 2016) at para 40.
‘[40] If it emerges from the record that the trial court misdirected itself on the facts or
that it came to a wrong conclusion, the appellate court is duty -bound to overrule
factual findings of the trial court so as to do justice to the case. In Bernert, this court
affirmed:
“What must be stressed here is the point that has been repeatedly made. The
principle that an appellate court will not ordinarily interfere with a factual
finding by the trial court is not an inflexible rule. It is recognition of the
advantages that the trial court enjoys which the appellate court does not. These
advantages flow from the observing and hearing the witnesses as opposed to
reading ‘the cold printed word’. The main advantage being the opportunity to
observe the demeanour of the witnesses. But this rule of practice should not be
used to ‘tie the hands of the appellate courts. It should be used to assist, and
not to hamper, an appellate court to do justice to the case before it. Thus,
where there is misdirection on the facts by the trial court, the appellate court is
entitled to disregard the findings on facts and come to its own conclusion on
the facts as they appear on the record. Similarly, where the appellate court is
convinced that the conclusion reached by the trial court is clearly wrong, it
will reverse it.”11
[25] I am in agreement with the submissions made by the appellant’s counsel.
I add that for a matter to be fully placed before the court, it is imperative that a
thorough investigation be conducted. This is so because, as indicated above, an
accused bears no onus to prove his guilt in criminal proceedings. This accords
11 Bernet v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC); 2011 (4) BCLR 329 (CC) at para 106.
with s 35 of the Constitution, 12 which protects the rights of accused persons,
more specifically the right against self -incrimination. Therefore, the high
threshold of proof beyond reasonable doubt remains the burden of the state
throughout.
[26] Most significantly, where the investigation and presentation of the case is
fraught with deficiencies on material issues, the court cannot safely convict as
the state would not have discharged its onus. Reverting to the facts of this case,
when IK made a disclosure to her mother, she stated that Tuba’s or Bamba’s
brother or uncle had raped her. However, when she testified in court, she stated
that Tuba’s brother was a perpetrator.
[27] A further material discrepancy that was not clarified during the trial
proceedings relates to the stage at which IK’s mother went to report the incident
to the landlord. According to the evidence, just before IK’s mother left the
premises, the landlord remarked, “Here is Ntsikelelo.”
[28] This brings me to the question that I posed to the parties during the
hearing of this appeal, which in turn gave rise to a number of other questions.
On what basis and how was the appellant arrested? Was he arrested because he
is Tuba’s brother or Bamba’s brother or Bamba’s uncle? Alternatively, was he
12 Constitution of the Republic of South Africa, 1996 as amended.
arrested because he resided in a flat pointed out by IK? Or was he arrested
because he was pointed out by IK to the police or to her mother?
[29] In response to the latter question, IK’s mother confirmed in cross -
examination that IK never pointed out the appellant. Furthermore, the evidence
which was corroborated by the appellant was that IK never pointed out the
appellant to the police or elsewhere. Another question that arises: Where does
Ntsikelelo feature in all this? Was his implication based solely on the fact that
he resided in a flat identified by IK? And what about other people who had
access to the flat? The significance of mentioning Ntsik elelo’s name when he
emerged was never explored; no evidence was led to establish where and how
Ntsikelelo featured in the rape charge. All these questions give rise to a
reasonable doubt as to whether the appellant was indeed the perpetrator of the
crime.
[30] These questions further raise serious concerns as to the significance of an
identification parade which the state contended was not necessary. Although IK
indicated that she knew Tuba’s brother, her mother did not. In addition, the
appellant also did not know this family. Furthermore, while the appellant had
resided in the flat since 2018, IK and her mother had only recently arrived in the
area in January 2020. Given the short period they had spent there, the issue of
identification ought to have been prope rly investigated by all means possible
before any arrest was effected.
[31] A further issue concerns the fact that IK was playing with other children
at the time of the incident. She mentioned them by name in her evidence in
court. From the record, it appears that the magistrate had anticipated that these
young witnesses would be called to testify. At page 22 lines 12-13 of the record,
he states:
“COURT: Thank you. Thank you, I…And do you have another child witness? Do you
have another child witness?
PROSECUTOR: No, I do not have another child witness. Your Worship”
[32] Despite the obvious significance of the evidence of other young witnesses
who were playing with IK, no valid explanation was proffered by the state for
not calling them. Arising on this issue is the further question as to why the
landlord was not called, at the very least to rebut or assist the court with regard
to the defence of alibi raised.
[33] While on this point, a lot needs to be said regarding the manner in which
the trial court evaluated the defence of alibi. The legal principle is trite: the state
bears the onus of disproving alibi beyond reasonable doubt. 13 The issue of alibi
has to be assessed holistically. In Thebus and Another v S 14, a case referred to
by counsel for the state in his heads of argument, the CC considered the effect
of a late disclosure of an alibi defence on the accused person’s right to remain
13 R v Hlongwane 1959 (3) SA 337 (A) 341A; S v Majiame n Andere 1999 (1) SACR 204 (O) p213 g-h.
14 (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC); 2003 (2) SACR 319 (CC)
(28 August 2003).
silent. It held that although pre-silence cannot find an adverse inference of guilt,
the accused may be cross -examined on the late disclosure of an alibi for
purposes of assessing the weight and credibility thereof. 15 The CC cautioned,
however, that such cross -examination must be exercised with due regard to
fairness towards both the accused and prosecution, and without unduly
encroaching upon the right to remain silent or limiting a proper enquiry into the
delayed disclosure of an alibi.16
[34] The submission by the state regarding the late disclosure of alibi is, in my
view, misplaced. In fact, the authority relied upon by the state is not on all fours
with the facts before this court. In the present instance, no such cross -
examination took place to establish why this alibi was not disclosed to the
police.
[35] Instead, the record reflects that the alibi defence was put forward from the
outset. To that extent, the defence objected to the charge sheet on the basis that
it failed to particularise the specific date of the incident. Notwithstanding the
trial court’s failure to address the objection, the cross -examination of IK’s
mother attempted to cure the defect. She belatedly testified that it was 05 May
2020 when IK complained of pains in her vagina. However, on her own version
15 Fn 14 above at para 69 [paraphrased].
16 Fn 14 above, para 70.
and according to the report conveyed to her by IK, the incident occurred the
previous day.
[36] Notably, the appellant’s father testified and corroborated the appellant’s
alibi. Such evidence remains uncontroverted and was never challenged in any
form by the state. Therefore, there was no basis for the trial court to find that the
appellant’s father was a witness of convenience. Most significantly, IK’s mother
honestly informed the court that she could not dispute the appellant’s version,
especially on the issue of alibi.
[37] Basically, considering the fact that IK was a single witness on the issue of
identification, the trial court misdirected itself in the manner in which it applied
the cautionary rules. It failed to evaluate the evidence in totality when dealing
with the issue of alibi and all other relevant issues. Had the trial court done so, it
would have appreciated that the unchallenged alibi evidence raised a reasonable
possibility that the state’s version regarding the identity of the perpetrator was
mistaken. Its failure to do so constitutes a material misdirection.
[38] Gleaning from the record of the trial proceedings, the state also harboured
serious doubts with regard to the identity of the perpetrator. What is concerning
is the manner in which that doubt was addressed. In the middle of the trial
proceedings and despite the scepticism expressed by the trial court, it
nevertheless directed IK to leave the room where she was with the intermediary,
to come forward to point out the assailant from among a group of other people
inside the courtroom. IK complied with the instruction and pointed out the
appellant. Below is the extract of the court record outlining the procedure
adopted by the court in conducting the dock identification:
“PROSECUTOR: Your Worship, the only thing that the state wishes to deal with is
the issue of identity. With the leave of the court, I did canvass this issue with my
learned friend that perhaps when the child is done, then if the child may just come and
be asked. Your Worship, if she can see the person whom they…[indistinct] that day? I
am at the hands of the court as the court guiding us how to proceed (sic)
COURT: I am just careful with a dock identification . What I am going to ask them is
that we have…[intervenes](accentuation added)
PROSECUTOR: Him sitting there maybe with her or…[intervenes]
COURT: With Mr Tutu and Mr Sani[?] and with the officer?
PROSECUTOR: Yes
COURT: So that because…[indistinct] in the dock.
PROSECUTOR: I do not have a problem with that, Your Worship
COURT: Okay. Mr Tutu.
MR TUTU: Your Worship, I also do not have a problem, but I am equally concerned
about…[indistinct], Your Worship.
COURT: Yes, Mr Sani -officer, do not leave. Mr Sani, will you go and sit with Mr
Tutu? Officer, take a chair and sit with Mr Tutu please. Officer, take a chair and sit
with Mr Tutu please. Okay, the child can come into the court. Ms Sekupa, you can
bring the child into the court. Just wait a minute sir. Your witness, Ms Tsofela.
RE-EXAMINATION BY PROSECUTOR: I.., remember you told this court that the
person who did this to you is Butika [?] Tuba, you remember?
MS K…: Yes
PROSECUTOR: Now I want you to help us and tell us if you see Butika Tuba here in
court. If you do not see us clearly go that side. Do not be afraid . Now I want you to
look at all of us here in court. If you see Butika Tuba here, please point and say this is
Butika Tuba? (emphasis added)
INTERPRETER: Pointing, Your Worship to the accused…”
[39] While this court accepts that dock identification is permissible and
admissible in law, 17 where a child witness is involved, it ought to be
discouraged. There are sound reasons why a child is permitted to testify by
means of closed -circuit television and in camera. The rationale underlying this
practice is that the interests of justice demand that a child need not be subjected
to undue psychological distress or a possible secondary victimisation through
exposure to a person she believes to be the perpetrator.
[40] Section 170A of the Criminal Procedure Act 51 of 1977(CPA) empowers
the court to safeguard the interests of the child or even adult witnesses who
suffer from physical, psychological, mental or emotional conditions to testify
17 S v Matwa (CA&R520/01) [2002] ZAECHC 8; [2002] 3 All SA 715 (E); 2002 (2) SACR 350 (E) (24 April
2002.
through an intermediary. In addition, s 153 (3) of the CPA permits in camera
proceedings in instances where a charge relates to any sexual offence as
contemplated under s 1 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007 against a minor.
[41] Therefore, in this instance, the state ought to have employed other means
of identification to limit the child’s exposure to the formal and intimidating
atmosphere of a courtroom, which is generally not conducive to child witnesses.
In any event, in light of the serious doubts surrounding the identification of the
perpetrator, the dock identification conducted in this matter carries no evidential
weight and should be disregarded.
[42] Lastly, it would be remiss of this court not to address the irregular manner
in which the J88 was admitted. The record reflects that the medical report was
not admitted by the defence, more specifically, the truth and correctness of the
contents thereof. Indeed, the appellant’s counsel raised serious concerns
regarding the injuries sustained by IK. Although the defence sought to have the
forensic nurse called to clarify the nature of the injuries and to explain whether
IK’s vagina had been penetrated, the trial court dismissed this proposition.
[43] This court regards the failure to allow the forensic nurse to testify as an
irregularity, given the fact that penetration is an essential element of rape. While
it is accepted that the mere production of a J88 together with a supporting
affidavit compiled by a medical practitioner in the employ of the state
constitutes a prima facie proof of the facts stated therein, that does not absolve
the court of the duty to have proper regard to what the J88 actually states.
[44] Penetration was an issue and remained unresolved. While it is
acknowledged that even slight penetration constitutes penetration in terms of the
definition of rape, it was material to allow the forensic nurse to clarify this
aspect. The trial court’s failure to allow the forensic nurse to testify meant that
the state’s proof on this key element rested solely on an untested document.
That deprived both the state and the appellant of a fair trial and leaves a
reasonable possibility that penetration may or may not have occurred. The trial
court erred in acting on a disputed document. Resultantly, the appeal must
succeed.
[45] The appellant’s appeal against conviction is upheld.
1. The order of the trial court is replaced with the following:
“The accused is found not guilty and discharged”.
________
N CENGANI-MBAKAZA
JUDGE OF THE HIGH COURT
I agree:
D.V. PITT
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Appellant : Adv Hobbs
Instructed by : HS TUTU & SONS
Dutywa
c/o Mgxaji Attorneys
Mthatha
Counsel for the Respondent : Adv Maarman
Instructed by : Director of Public Prosecutions
Mthatha
Heard on : 05 August 2026
Judgment Delivered on : 18 August 2026