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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Not Reportable
Case No: A76/2026
In the matter between:
YONELA NGADA Appellant
and
THE STATE Respondent
Coram: Pangarker J et Barthus AJ
Heard: 29 May 2026
Delivered electronically: 20 August 2026
ORDER
On appeal from : The Regional Court , Blue Downs , against conviction and sentence:
the following order is granted:
The appeal against conviction and sentence is dismissed. The sentence is confirmed.
JUDGMENT
BARTHUS AJ (PANGARKER J concurring):
Introduction
[1] This appeal arises from the Appellant’s conviction and sentence in the Blue
Downs Regional Court. It is brought in terms of his automatic right of appeal under s
309(1)(a) of the Criminal Procedure Act 51 of 1977 (“the CPA”). The Appellant was
convicted of contravening s 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, read with s 51(1) and Part I of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (“the CLAA”), as follows:
a) two counts of rape in respect of each of the two complainants.
b) one count of kidnapping in respect of one of the complainants.
[2] In respect of sentence, counts 1 and 2 (rape) were taken together for purposes of
sentence and life imprisonment was imposed. The Regional Magistrate imposed 5
years’ direct imprisonment on count 3 (kidnapping). Counts 4 and 5 (rape) were taken
together for purposes of sente nce and life imprisonment was imposed. The sentences
on c ounts 1, 2 and 3 were ordered to run concurrently with the life imprisonment on
counts 4 and 5.
[3] In respect of the first complainant, Ms N[...] B[...] (“Ms B[...]”), who was 18 years
old and a virgin at the time of the incident, the Appellant pleaded not guilty to counts 1
and 2 (rape) and count 3 (kidnapping), advancing a bare denial.
[4] In respect of the second complainant, Ms S[...] G[...] (“Ms G[...]”), the Appellant
relied on a defence of consent to the charges of rape (counts 4 and 5). He asserted that
they were acquainted and that she had made sexual advances towards him.
[5] The State successfully applied, in terms of s 86 of the CPA, to amend count 4 to
include penile penetration. The amendment caused no prejudice to the Appellant and
aligned the charge with the evidence adduced. There was no objection to the
amendment, and the amendment was accordingly effected.
[6] The State called five witnesses in support of its case, namely the two
complainants, Mr Nyongo, and Doctors Tokwayo and Ntoi.
Factual Background
First complainant:
[7] At the time of the offences, the Appellant was employed as a taxi driver. On 30
October 2021, at approximately midday, Ms B[...] boarded a taxi driven by the Appellant
in Khayelitsha. Two other female passengers were initially present but were dropped off
before reaching her destination.
[8] The Appellant informed the complainant that he would take a shortcut but
proceeded to drive in a direction inconsistent with her intended route. When she queried
this, he responded, “I heard you lady”, and continued to drive to an isolated open field.
[9] The Appellant then ordered Ms B[...] to undress, assaulted her by slapping and
punching her, and forcibly penetrated her vaginally with his penis. During the assault,
she pleaded with him not to harm her and informed him that she was a virgin. He
thereafter moved the vehicle into nearby bushes, instructed her to turn around, and
raped her again from behind, continuing to assault her during the attack.
[10] During the incident, Mr Nyongo, a security officer, approached the taxi after
hearing a disturbance, including the sound of slapping. He knocked on the window and
thereby intervened. He observed that Ms B[...] was partially undressed, distressed, and
shaking. When he asked what was happening, the appellant stated that she was his
girlfriend. Ms B[...] immediately exited the taxi, entered Mr Nyongo’s vehicle, and
reported that she had been raped and did not know the Appellant.
[11] The Appellant attempted to take Ms B[...] back to the taxi, but Mr Nyongo
prevented him from doing so. The appellant then gave the complainant R50 for taxi fare
and departed. The security officer contacted the police, after which B[...] was taken to
the police station and later to hospital for a medical examination.
[12] Dr Lerato Ntoi examined Ms B[...] and completed a J88 medico -legal report. She
observed blood stains on the complainant’s jeans, a haematoma above her right eye
and an abrasion on her neck. The genital examination revealed tears to the labia minora
and hymen, consistent with forced penetration.
Second complainant:
[13] Ms S[...] G[...] (“Ms G[...]”) testified that on 5 April 2020 at approximately 17h00,
she boarded a taxi driven by the Appellant in Khayelitsha, travelling to Macassar.
[14] After dropping off other passengers, she remained alone with the Appellant. She
became concerned when he deviated from the expected route, to which he responded
that he was taking a shortcut.
[15] The Appellant drove to an open field and instructed her to move to the front of
the taxi. Upon her refusal, he moved to the rear and penetrated her with his finger ,
followed by vaginal penetration with his penis. He then threatened to kill her . He briefly
moved to the front of the taxi before returning t o the rear to rape Ms G[...] a second
time.
[16] Afterward he drove her to Macassar, apologised and gave her R200 in an
attempt to dissuade her from reporting the offence. He also provided a contact number
which proved to be false.
[17] When he dropped her off, her cousin was waiting outside the house . The
Appellant immediately drove away at speed and, in doing so, nearly collided with the
cousin, who was able to observe the identifying inscription on the taxi. This detail would
later assist the complainant and her family in tracking down the Appellant.
[18] Ms G[...] reported the incident to her family and thereafter to the police. She was
examined at approximately 02h00 on 6 April 2020 by Dr Tokwayo.
[19] The J88 completed by Dr Tokwayo recorded fresh genital injuries, including tears
to the labia and hymen, consistent with forced penetration.
The defence
[20] The Appellant’s account was riddled with contradictions. In respect of Ms B[...],
he initially denied intercourse, later claiming limited consensual contact, and further
alleging a romantic relationship with her.
[21] The Appellant did not meaningfully rebut the security officer’s evidence. He
explained that the security officers intervened because they did not believe that the
woman he was kissing was his girlfriend.
[22] His claim that Ms B[...] was his girlfriend was undermined by his concession that
neither knew where the other lived. This added to the implausibility of his testimony.
[23] In respect of Ms G[...], t he Appellant alleged that she initiated consensual
intercourse, yet his explanation for her distress and his conduct afterward was
improbable. He testified that the complainant cried only because she feared becoming
pregnant since they had unprotected sex. He said he gave her money to have tests
done and that he offered her his number so that they could keep in touch. This version
does not logically flow with his assertion that Ms G[...] initiated sex.
[24] The Appellant’s version put to the complainants materially differed from his oral
evidence, and his explanation that th e discrepancies resulted from a language barrier
was unconvincing.
Conviction
[25] The Appellant argued that the court a quo erred in convicting him on four counts
of rape because the acts involving each complainant were not sufficiently separated in
time.
[26] The Appellant also argued that the State witnesses gave mutually destructive
versions and relied on the cautionary rule for single witnesses. These submissions were
not supported by the record.
[27] Evidence in a criminal trial must be assessed as a whole, or as a “mosaic of
evidence”, as stated in Khumalo v S1 as follows:
‘Considering all the circumstances of this case, I am of the view that the evidence tendered by
the State weighs so heavily as to exclude any reasonable doubt about the applicant’s guilt.
Expressed differently, the mosaic of the evidence as a whole is, beyond reasonable doubt,
inconsistent with the applicant’s innocence.’
[28] In the present matter, the mosaic of evidence reveals a distinctive modus
operandi in that both complainants have presented similar fact evidence. Both cases
present striking similarities in that the Appellant exploited his position as a taxi driver to
1 [2022] ZASCA 39 (4 April 2022) at para [19].
isolate his victims; he transported them to a secluded bush area; he subdued them by
physical force and threats and claimed that they were romantically connected to him.
[29] The similar fact evidence was admissible because its striking similarities were
relevant to the issues of identity, consent, and modus operandi. The evidence was not
admitted merely to show bad character. In Nduna v S2, the court stated that the ultimate
test is, and must always be, the relevance of such similar fact evidence as the
foundation for its admissibility against the accused person: the evidence will be
admissible if it is relevant to an issue in the case. The similar fact evidence carried
significant probative value because it demonstrated a consistent and distinctive modus
operandi.
[30] The Appellant’s submission that the rape convictions should be treated as one
continuous act, rather than as two separate acts in respect of each complainant, cannot
be sustained. In this regard the Appellant referenced the unreported judgment of
Ndumiso Mangaliso v The State 3. In this case the appeal court determined that the oral
and anal rape of the complainant was closely linked in that there was “ no temporal or
spatial separation of the acts”.
[31] In the present matter, the evidence shows that, in each instance, there were two
distinct acts, separated by a fresh decision to repeat the offence. In respect of Ms B[...],
the Appellant raped her at the back of the taxi while she pleaded for her life . When she
told him that she is a virgin he stopped, went to the front of the ta xi and drove into the
bushes before raping her again . As for Ms G[...], the Appellant inserted his finger into
her vagina before raping her . He went to the front of the taxi and then returned to the
back of the taxi and raped her again. The convictions on separate counts were therefore
justified.
2 2011 (1) SACR 115 (SCA) at par 18.
3 Case number A203/2025 (31 October 2025).
[32] The medical evidence in respect of both complainants recorded injuries
consistent with forced penetration.
[33] Nyongo’s independent observations of B[...]’s condition when he interrupted the
assault provided corroboration. The Appellant’s contradictory and improbable evidence
further undermined his defences.
[34] The court a quo correctly found that the evidence, viewed as a whole, proved the
Appellant’s guilt. No material misdirection has been shown, and the convictions should
stand.
Sentence
[35] Where an accused is convicted of rape, l ife imprisonment is mandated in terms
of section 51(1) of the CLAA, read with Part I of Schedule 2 upon conviction, unless in
terms of section 51(3), substantial and compelling circumstances exist which
necessitate the imposition of a lesser sentence than the prescribed sentence.
[36] The interpretation of the phrase " substantial and compelling circumstances " was
met with approval by the court in Director of Public Prosecution, Pretoria v Tsotesti ,4
where Copper AJA referred to S v Malgas5, where it was stated that even though
"substantial and compelling" factors need not be exceptional, there must be truly
convincing reasons or "weighty justification" for deviation from the prescribed sentence.
The Court held that the minimum sentence is not to be deviated from lightly and should
ordinarily be imposed. This approach was also confirmed in S v Dodo6 and explained in
S v Vilakazi7.
4 [2017] ZASCA 83 (2 June 2017) para 27.
5 [2001] ZASCA 30 (19 March 2001) para 17.
6 [2001] ZACC 16; 2001 3 SA 382 (CC) para 11.
7 2009 1 SACR 552 (SCA) para 14.
[37] The Appellant submitted that the court a quo erred in finding that no substantial
and compelling circumstances existed to justify a deviation from the prescribed
minimum sentence. The following factors were advanced:
a) The Appellant was 24 years old at the time of the offences;
b) He was a first-time offender;
c) He was in a stable relationship and had one child;
d) He had been in custody for approximately three years and seven months prior to
sentencing.
[38] The State submitted that no substantial and compelling circumstances were
present to justify interference with sentencing citing the following factors:
a) The offences were violent and premeditated,
b) The profound psychological trauma inflicted on the victims, one of whom was a
virgin;
c) The exposure of the complainants to pregnancy a nd/or sexually transmitted
disease;
d) The Appellant’s abuse of his position of trust as a taxi driver;
e) The prevalence of such crimes in the community and the need for deterrence;
f) The absence of genuine remorse evidenced by the unrelenting false denials and
fabrication of defences.
[39] The Appellant further submitted that the court a quo overemphasised the
prevalence of rape and imposed a disproportionate sentence. He submitted that the
sentences should be reduced to 10 years’ imprisonment on each of the two counts of
rape, with such sentences to run concurrently.
[40] Proportionality requires the Court to balance the seriousness of the offences, the
Appellant’s personal circumstances, and the interests of society. While the Appellant’s
mitigating factors have been considered, they do not outweigh the gravity of the
repeated, violent offences committed against two complainants. The prescribed
sentence of life imprisonment is therefore not disproportionate.
[41] The seriousness of rape and the care required in sentencing for such offences
have been repeatedly emphasised by our courts. In S v Vilakazi8, the court cautioned
that sentencing in rape matters requires careful reflection, as custodial sentences are
not merely numbers and the consequences of life imprisonment are profound.
[42] In Director of Public Prosecutions, KwaZulu-Natal v Ndlovu9, the court reaffirmed
that rape is a grave violation of the dignity, privacy, and bodily integrity of the victim,
causing lasting emotional and often physical harm.
[43] The Constitutional Court has likewise recognised rape as a profound violation of
dignity, bodily integrity and privacy. In Tshabalala v S; Ntuli v S 10, it described rape as
structural and systemic, and in Masiya v Director of Public Prosecutions, Pretoria and
Another11 it emphasised that rape is an expression of power through degradation, the
effects of which continue to demand a firm and constitutionally grounded judicial
response.
[44] Having regard to the grave and persistent violence against women and children
in South Africa, courts must respond with appropriate seriousness and condemnation,
while ensuring that the sentence remains proportionate to the offence, society’s
interests, and the offender’s personal circumstances.
[45] On appeal, this court may interfere with sentence only where the court a quo
materially misdirected itself, failed to exercise its discretion judicially, or imposed a
sentence so disproportionate that no reasonable court could have imposed it12.
[46] Although the Appellant was relatively young, a first offender, had family
responsibilities, and had spent a substantial period in custody 13awaiting finalisation of
8 2009 (1) SACR 552 (SCA) para 21.
9 (2024) ZASCA 23 para 73.
10 2020 (2) SACR 38 (CC) at para 67.
11 2007(5) SA 30(CC) at para 51.
12 S v Bogaards 2013 (1) SACR 1 (CC) at para 41.
the matter, these factors do not, whether individually or cumulatively, amount to
substantial and compelling circumstances. The offences were grave, repeated and
violent.
[47] The Appellant exploited his position as a taxi driver to isolate vulnerable female
passengers, used force and threats, and thereafter advanced false and improbable
defences. The impact on the complainants was severe, and the medical evidence
confirmed injuries consistent with forced penetration. In these circumstances, the
prescribed sentence of life imprisonment is not disproportionate to the offences, the
interests of society, or the appellant’s personal circumstances. There is accordingly no
basis to interfere with the sentence imposed by the court a quo on each of the counts.
Conclusion
[48] Having considered the record and the submissions advanced, this court is
satisfied that the convictions and sentences were correctly imposed.
Order
[49] In the result, I would grant the following order:
The appeal against conviction and sentence is dismissed . The sentence is
confirmed.
__________________
V BARTHUS
ACTING JUDGE OF THE HIGH COURT
13 In Radebe and Another v S 2013 (2) SACR 165 ( SCA), the court held that: “ the test is not whether on
its own that period of detention constitutes a substantial or compelling circumstance, but whether the
effective sentence proposed is proportionate to the crime or crimes committed: whether the sentence in
all the circumstances, including the period spent in detention prior to conviction and sentencing, is a just
one”.
I agree and it is so ordered.
________________
M PANGARKER
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Appellant: Mr M Strauss
MarthinusS@legal-aid.co.za
Instructed by: Legal Aid South Africa
Counsel for the Respondent: Adv LJ Badenhorst
ljbadenhorst@npa.gov.za
Instructed by: Director of Public Prosecutions: Western Cape