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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BISHO)
CASE NO.:CC20/2024
In the matter between:
THE STATE
and
XOLISILE NOJILANA ACCUSED
JUDGMENT
ZONO AJ:
Introduction
[1] The accused was arraigned in this court on a charge of rape of a minor
child, who was allegedly 12 years of age at the time of incident. The charge
was said to be in contravention of section 3 read with section 1, 50, 55, 56(1)
56A, 57, 58, 59 and 60 of the Criminal Law (sexual offences and related
matters) amendment Act 32 of 2007 read with section 256 and 261 of the
Criminal Procedure Act 51 of 1977 . It is alleged that on or about the 30 th
October 2021 and at or near Upper Ngqumeya, in the District of
Kieskammahoek, the accused did unlawfully and intentionally commit an act of
sexual penetration with I[...] N[...], a 12-year-old female, by inserting his penis
into her vagina without her consent. The state invoked the provisions of section
51(1) read with schedule 2 of the Criminal Law Amendment Act 125 of 1997,
relating to a discretionary minimum sentence of life imprisonment as the victim
is a person under the age of 16 years of age. The accused who was legally
represented pleaded not guilty to the charge of rape and elected not to disclose
the basis of his defence. The state opened its case by calling the evidence of
Z[...] N[...], who is the victim’s aunts.
Z[...] N[...]
[2] The nub of her testimony is that; she was residing at their home with her
mother and children including I[...] N[...], the victim. They were six members in
the household, which is comprised of five roomed house and two roomed shack.
The premises were properly fenced. They were all staying in the five roomed
house. Accused was looking after the livestock (goats). The accused was
spending a lot of time in their homestead as he would go to his house only to
sleep and bath.
[3] On 30 th October 2021 the accused and her ( Z[...]) were sitting on the
shade outside the house as it was hot but still inside the yard when the children,
including I[...] N[...], were inside the house. Accused and Z[...] were watching
the goats (on sight) when grazing at the veld. At that time Z[...] gave the
accused her bank card to go and buy Drosty wine, which he did and they drank
it as they were used to do that. As they were drinking, two African young men
arrived in a motor vehicle and stopped outside the yard. After an insignificant
discussion Z[...] and the two youngmen agreed to attend a traditional ceremony
at another local family house. Part of the wine was taken with as the other was
left in the Fridge for the accused consumption, and they left the premises at
about 14h00.
[4] Whilst in the ceremony, Z[...] received a call from Nontsikelelo Maki
rushing her to arrive at home. She then requested the motor vehicle to convey
her to her home, which it did. On her arrival at home Z[...] found a lot of elderly
women sitting perplexed and crestfallen in the sitting room. Upon enquiry,
Nontsikelelo advised Z[...] to go to the bedroom and see for herself. When
going to the bedroom, she was followed by I[...]2 and Luvano Soga. On her
arrival at the bedroom, Z[...] found I[...] lying unconsciously on the bed and she
frantically shook her. She saw a washing basin with water when simultaneously
experiencing a strong smell of liquor in the bedroom. Z[...] further saw I[...]’s
panty on top of the dressing table. She then uncovered I[...] and saw that she
(I[...]) did not have her panty on. She then went to the sitting room for
explanation by elderly women and I[...]2 (minor child) relayed the story as she
had seen the events. I[...]2’s story directly implicated the accused. I will deal
with her version when dealing with her evidence.
[5] After having heard the narration by I[...]2, Z[...] went to accused’s home
to look for him. On arrival at accused’s home, Z[...] found the accused house
door locked. She loudly called the accused demanding that he must open. Z[...]
persistently knocked thereat; angrily banging the door and shouting as there was
no response. That took place until Thobani, accused’s neighbour heard Z[...]’s
noise and he enquired as to the matter. As she was narrating the story to
Thobani, accused opened the door and Z[...] enquired from the accused about
what he had done. She demanded that they must go to her home to answer about
his deeds. Despite his resistance, Z[...] and Thobani took the accused to Z[...]’s
home. On their arrival, accused was shown I[...] who was lying on the bed.
home. On their arrival, accused was shown I[...] who was lying on the bed.
Accused’s answer was that he only was trying to wipe I[...] as she had vomited
herself. The accused could not explain why I[...]’s panty that was found on the
dressing table. In disbelief Z[...] went to report the matter to the sub headman,
who, upon invitation came to the scene. On their arrival at the scene, they
witnessed that I[...] still could not move, speak or do anything. The sub
headman called the police, who quickly arrived. Before police arrival accused
became aggressive and attempted to escape. During the police presence too, the
accused became violent and aggressive and he was forcefully loaded into the
police van.
[6] At the police station Z[...] opened the case and I[...] was then awake and
spoke to the police. Z[...] also spoke to I[...] about what happened and she
narrated her side of the story. I will deal with that story when dealing with
I[...]’s evidence. Having finished at the police station, I[...] and others were
taken to SS Gida Hospital for I[...]’s medical examination. At that time I[...]’s
panty was carried in a plastic bag. During her medical examination, I[...] was
crying. They were released from hospital. On arrival at home, Z[...] realized that
the wine that was left in the fridge was finished.
[7] During cross examination Z[...] explained why her statement made to the
police was not detailed as compared to the testimony she made before this court.
She mainly testified that on that day she was not feeling well. She maintained
that she and the accused drank the wine outside when sitting on the shade. She
utterly denied a version that she gave I[...] a wine to drink. She maintained that
she went to the ceremony with Lerato and Lukhanyo and that she left the
accused at home.
B[...] D[...]
[8] The next witness was B[...] D[...]. I[...] is her granddaughter and they
were staying in the same homestead together with Z[...] and other
grandchildren. She testified that on 30 th October 2021, she woke up early to the
Nqumeya Primary School for special voter registration as she was a Deputy
Presiding officer. She knocked off at 17H00 and went back to her home. Not far
from the gate of her home, she met I[...]2 N[...] (granddaughter) who frantically
came to her. She hysterically narrated the story of rape of I[...] as they allegedly
saw it. I[...]2, informed, upon enquiry by Ms D[...], that the accused is in the
house and Ms D[...] quickly went inside. Luvano also came and talked. It was
difficult to follow what they were saying. She then met the accused in the
lounge or sitting room. Before she could say anything the accused volunteered
an explanation that I[...] was not well, she was vomiting and the accused tried to
help her. That was frontally disputed by the young children, to wit, I[...]2 and
Luvano. They directly told the accused that he was on top of I[...]. Without a
denial of that assertion, the accused responded by saying “ how is like to help a
person? I was helping and that turns with me and against”. Kunjani ukunceda
umntu, mna bendimnceda ngoku lento ijika nam.
[9] Ms D[...] proceeded to the bedroom to check I[...]. On arrival in the
bedroom, she saw I[...] lying on her back, her dress was up to the level just
below the stomach (waste area). She further saw I[...]’s panty on top of the
dressing table. A strong smell of liquor pervaded the bedroom. He further saw a
vomit, washing basin with clean water and a wash cloth. On the bed there were
wipe marks or stains. She felt so bad to such an extent that she does not know
how she carried herself. She then sent her friend and neighbour to be called. The
neighbour and a friend called Z[...] and one of her daughters who works at Fort
Beauford. Ms D[...] testified that, Z[...] on her arrival and having been
confronted with the story and victim’s situation, went to look for the accused
confronted with the story and victim’s situation, went to look for the accused
and she came back with him into the house. She further testified that I[...] was
drunk as she was smelling liquor from mouth and was dizzy. She was not
responding even if she was being shaken or talked to.
[10] Ms D[...] testified further that she knows the accused as he was assisting
in her homestead in terms of looking after livestock and doing almost
everything as any member of family would do, including collecting the wood
and setting the fire and warming the house.
[11] During cross examination, no version was put to Ms D[...]. Whilst not
disputing having made a statement to the police, she testified that she does not
recall. Seeing that there are statements on which she appended her signature,
she testified that she does not recall if the statements were read back to her. She
attributed that forgetfulness to the life pressures and age. She was forgetful even
before the incident, and now it is worse. Upon being confronted with her
statements, she insisted that the washing basin in the bedroom contained clean
water.
Luvano Soga
[12] The third state witness was Luvano Soga, a minor who testified through
the services of an intermediary, Ms Agcobile Patricia Ngqokwini, a qualified
social worker. Luvano testified that he is staying in the same homestead with
I[...] and all other persons referred to above. On 30 th October 2021 Luvano was
at home when the accused was drinking with his mother, Z[...]. The accused
was left with a liquor by Z[...]. The accused gave I[...] liquor to drink, which she
did. I[...] then started with a running stomach. The accused boiled water to wash
I[...]. The accused instructed them to go and look for the goats and they left. On
the way he told I[...]2 to go back as he would walk alone to the veld. On his
return he was called by I[...]2 to see the accused who was under the blanket and
on top of I[...]. When his mother, Z[...], and his grandmother, Ms D[...] arrived,
they told them what they saw the accused doing.
[13] He testified that his mother, Z[...], accused, Lerato and others were
drinking outside the house. He testified that he was inside the house with I[...]2
and I[...]. I[...]2 was cleaning the dishes while I[...] was playing with the cell
phone. He stated, in response to the question, that there was no television at
home.
[14] During cross examination he re iterated that the accused was on top of
I[...] when she was lying on the bed. He maintained that they reported to his
mother and grandmother who respectively arrived at home and they told them
what had happened when they were not at home. He denied the accused version
put to him inter alia that: the accused went to the veld and on his return he
found that Z[...] had left the homestead; That on his arrival from the veld he
found the victim vomiting inside the house as she was drunk and that he went to
clean up the victim, and he finished cleaning up I[...] when Ms D[...] had
arrived. He reiterated that the accused had been in the same bed with I[...], that
he had been on top of I[...] under the same blanket, and that he drank liquor
outside. He clarified his statement made in his evidence in chief that there was
no TV to mean that there was TV in the house but it was not working.
I[...]2 N[...]
[15] The fourth state witness was I[...]2 N[...] who also testified through the
services of the same intermediary. On 30 th October 2021 she was at home. Her
aunt Z[...], Lerato and the accused were sitting outside drinking, while she and
Luvano were watching television. Her aunt, Z[...] was taken by a certain motor
vehicle. At some point she was washing dishes while I[...] was drinking what
was given to her by the accused. I[...] got drunk and they took her to bed to
sleep. I[...] requested them to accompany her to the toilet, which they did. The
accused then sent them to look for the goats. When they could not find the goats
they came back and went to check I[...] in the room. They saw the accused on
top of I[...]. When they confronted and questioned the accused about what he
was found doing, the accused remonstrated them to go and look for the goats
and they told him that they could not find the goats. The accused directed them
as to which direction the goats went. As they were going Luvano said to I[...]2
that she must remain at home as he would go alone.
[16] I[...]2 went to look for the accused. Accused instructed her to boil water
to wash I[...]. She placed on the kettle and went out to look for Luvano when the
accused went in to switch off the kettle. Luvano and I[...]2 came back and
peeped through the door and saw the accused on top of I[...] as his trousers were
down. They shouted asking as to what the accused was doing. They saw their
grandmother, Ms D[...]. They then ran to her and reported the matter. As they
were coming in they met the accused coming out of the house. They all went to
the room where I[...] was. I[...] was half naked as her dress was up to the level
of the chest. The panty was lowered to the level of the knees. Their
grandmother, Ms D[...] shook or pat I[...] who did not respond. Ms D[...] then
sent them to call people who later came into the house.
[17] I[...]2 testified that her aunt, Z[...] and others were drinking outside.
When Z[...] and others left they left some wine in the fridge. She was adamant
that Z[...] left leaving the accused at home not the other way round.
[18] During cross examination I[...]2 denied accused version that the accused
was never on top of I[...] with his trousers lowered. She emphasized and
reiterated her version in chief. She further denied that Z[...] gave I[...] a glass of
wine. She reiterated that the accused gave I[...] a glass of wine.
Dr Momoza
[19] The fifth state witness was Doctor Ivo Gcina Thina Momoza who
medically examined I[...] at SS Gida Hospital on 30 th October 2021. She
confirmed having completed a medico legal examination form, colloquially
known as J88. She painstakingly explained its contents as it was duly admitted
as exhibit D.
[20] Under general condition, (condition of clothing) it is recorded that I[...]’s
dress was dirty with what looked like mud stains. On clinical findings it is
recorded that no evidence of bruising or abrasion. Vulva and labia appears
normal. It further recorded a small tear over the viganal orifice on posterior
aspect of opening; hymen not visualized; whitish fluid seen on the opening of
the vaginal vault. Under mental health and emotional status, it recorded that the
child ( I[...]) was crying during examination and sample taking. Clinically no
evidence of drug and alcohol. The conclusion under general examination was
that “sexual assault cannot be excluded”.
[21] Under the topic “History in case of alleged sexual offence” the following
is recorded: Pregnancies and deliveries and contraceptives were nil. The date
and time of last intercourse with consent is none. Consensual sexual partners
were none. Under Gynaecological examination “everything is recorded as
appearing normal. Posterior fourchette had no scarring, tears, bleeding and
increased friability. Fossa Navicularies appeared normal. Hymen not seen; no
swelling, bumps, clefts, synachiae and bruising. There was a fresh tear on the
vaginal orifice. Vagina had bleeding on posterior wall vaginal orifice; small tear
on the posterior wall vaginal orifice; discharge of whitish fluid seen in the
vaginal vault . Cervix not visualized, erosion not visualized, discharge not
visualized. Perineum appears normal and no tears seen. Conclusions are as
follows: Hymen not visualized; small tear on the vaginal orifice posterialy with
blood; not active bleeding; white fluid at the opening of the vaginal vault.
Sexual assault cannot be excluded . Anal examination disclosed that everything
was normal. Dr Momoza testified that I[...] came before her without an
underwear; but only with dirty dress with mud stains. The likely cause of the
tear on the Vaginal orifice was any form of trauma, stretch of vagina or its
tissues- pulling force causing the tissue to tear or penetration. She testified that
the age of the tear was few hours old.
[22] During cross examination Dr Momoza testified that, and gave this
paradox, I paraphrase, “ The absence of the hymen is not the evidence that a
female had sexual intercourse or had penetration; but the presence of the
hymen is the evidence that a female had never had sexual intercourse or vaginal
penetration.” She listed some few example which are likely causes of hymen
rapture, to wit, cycling, horse riding etcetera. However, penetration is a trauma
that causes pulling of muscles or tissues. She could not tell the likely causes of
the whitish discharge in Imnage’s vaginal vault. She further testified that there
was no reason to assume infection given the history referred to above.
I[...] N[...]
[23] The last state witness to testify was I[...] herself. She testified through the
services of the same intermediary who assisted in respect of other minor
witnesses. She confirmed that in 2021 she was staying at her home with her
aunt, grandmother, I[...]2, Likuwe and Luvano.
[24] On 30th October 2021 she woke up at about 6 am when her grandmother,
Ms D[...] had already left for voter registration. At about 15h00 when she was
watching a movie, the accused offered her to drink a glass of cold goldish
liquid. They were together in the sitting room as Luvano and I[...]2 were
playing outside. She then felt dizzy after taking a glass and drank it. She then
decided to go and sleep in the bedroom. As she was sleeping the door was
opened and the accused entered. She said so because, when she was opening her
eyes the accused was already in the room standing on top of her next to the bed
she was sleeping on. The accused then took his pants to the kneel level, pulled
her dress up and undressed her of her underwear. He then attempted to get on
top of her and she tried to push the accused away and she did not have sufficient
strength to push him away and she started vomiting and she then fell
unconscious when the accused was wiping her mouth to remove the vomit. She
regained her consciousness when her grandmother, Ms D[...] and the police
officers had arrived.
[25] She testified that when the accused was offering her the drink, her aunt,
Z[...] was at local traditional ceremony. She disputed that her aunt gave her the
drink, she insisted that it was the accused who gave her the drink.
[26] She noticed that she was wearing the clothes she was wearing during the
day and were dirty and that she was not wearing an underwear and it was on top
of the bed. She restated that she did not permit the accused to take off her
underwear and that when she was pushing the accused she was very weak and
was laying on her back and the accused was on his knees on the edge of the bed.
She pushed him because the accused was coming close to her with his chest
area and she suspected that there is something the accused wanted to do on her
as her dress and underwear had already been removed and his trousers were
lowered. She testified that she did not know what happened thereafter. Upon
gaining the consciousness and noticing the presence of the inter alia, her
grandmother and the police she was then taken to SS Gida hospital where she
was examined by a doctor and then taken back to her home by the police. In the
hospital I[...] was still weak and was still vomiting and the doctor inspected her
private parts.
[27] During cross examination, she repeated what she said in her evidence in
chief and confirmed that after taking the drink offered to her by the accused she
had a running stomach. When asked about her failure to shout when the
accused, with lowered pants, was undressing her, she answered that she was lost
and very weak. When the accused was coming to wipe her vomit his trousers
were still lowered at knee level. She disputed the accused version that he did not
give her the drink and that she was given the drink by her aunt. She did dispute
that the accused did not follow her to the bedroom with lowered pants. She
further refuted that the accused did not take off her panty. She testified that the
accused took her underwear off completely, but do not recall if she did wear it
again. The state’s case was then closed and the defence opened its case by
calling the accused as he was one of the two defence witness.
Accused: Xolile Mashumi Nojilana
[28] Accused made common cause with the fact that he was an acquaintance
at N[...] or D[...] family as he was assisting there with feeding dogs, pigs and
looking after the goats. He confirmed that he was spending a lot of time in that
homestead as he was treated as a member of family.
[29] The accused testified that on 30 th October 2021 he was at the same
homestead in the morning and he fed the dogs and pigs and around 10 am he
took the goats to the grazing veld. He then came back from the grazing veld to
stay with Z[...] and they stayed together watching television. Z[...] sent him to
buy a box of wine (Drosty) which he did. When he came back they then drank it
inside the house. Before they could finish the wine Z[...] took a glass of wine
and gave it to I[...] to share it with others, which they did. Lerato and others
then arrived in a motor vehicle asking Z[...] why she did not go to the local
traditional ceremony. Lerato and Lukhanyo stopped their vehicle next to the
traditional ceremony. Lerato and Lukhanyo stopped their vehicle next to the
gate and called out Z[...] and Z[...] as they were talking, was little outside the
house in front of the door. Lerato and Lukhanyo said they would come back and
take Z[...]. They did not take her with instantly. They poured and took the wine
into two litre container and the remainder was left in the fridge; and the accused
then left to the grazing veld. He stood in the grazing veld for a while watching
the goats and on his return Z[...] had already left. On his return the accused was
advised by I[...]2 that there was a wine left in the fridge for him. Accused was
told, although not clear at what stage, that I[...] was vomiting and I[...]2 shouted
saying Z[...] had left for traditional ceremony.
[30] After having been told that I[...] was vomiting and enquired about their
failure to assist, the accused instructed I[...]2 and others to come for them to
wipe and clean up I[...]. The accused then wiped I[...] on the mount as he was
continuing to vomit. He then advised that they (all of them) must go and sit in
the front room (voorhuis). When Ms D[...] arrived, the accused was coming to
check I[...] and he met, Ms D[...] in the front room and he informed her that
I[...] was vomiting. Ms D[...], just passed the accused to where I[...] was. He
stated that he does not remember that I[...] requested I[...]2 and Luvano to take
her to toilet, but confirm that they took I[...] to the toilet. As they were taking
her to the toilet he suggested that they should take a face cloth with and deep it
in the water for them to wipe and clean up I[...]. He denied having instructed
I[...]2 and Luvano to put water in the kettle and having instructed them to look
for the goats. He denied that he was ever on top of I[...] with her pants on the
knee level. He denied having been under the blanket with I[...] and that he gave
I[...] a liquor to drink. He did not follow I[...] and stood at the edge of the bed in
the bedroom. He denied that he pulled I[...]’s dress up and removed her panty.
He did not notice if I[...] passed out. Accused testified that he became aware of
He did not notice if I[...] passed out. Accused testified that he became aware of
the alleged incident on the same day when Z[...] went to fetch him from his
home.
[31] During cross examination the accused person denied having inserted his
penis into I[...]’s vagina, at all. He accepted that he was treated in I[...]’s
homestead as a family member and he accepted that he was the only male figure
in the household as Ms D[...]’s husband would, from time to time, arrive the at
the homestead accused present with his family. He stated that he waited a bit
after meeting Ms D[...] in the sitting room and thereafter went to collect the
goats. However, he agreed that he did not talk to Ms D[...] about the incident.
He testified that he went to the bedroom because I[...]2 informed him that I[...]
was vomiting. However, he denied that the children were left in his care. He
testified that he was drunk on that day but could still appreciate and understand
and differentiate between what is right and what is wrong. He testified that he
did not notice that there was a water bowl or basin that was in the bedroom or
he did not see as suggested by Ms D[...]. He used only a face cloth to wipe and
clean up I[...]. He said he did not notice that I […]’s dress was up and her panty
was on the dresser as suggested by Ms D[...].
Nombuyiselo Zwelenda
[32] The witness that was next called was Nombuyiselo Zwelenda, a Police
Officer who took Ms D[...]’s statement. She testified that in 2021 she was still a
sergeant as she now is a warrant officer. She works with rape and protection of
children. She confirmed that Ms D[...]’s statement, which was A9 was taken in
her hand writing, meaning that she took the statement as the statement was a
two-page statement. At the foot of each page it was signed by Ms D[...] and at
the end her signature appears as a Commissioner of Oath. She confirmed that
the statement is undated and she did not recall when the statement was taken.
She regarded that omission as a human error. She testified that when taking a
statement, she introduced herself to Ms D[...] and requested her to narrate the
statement, she introduced herself to Ms D[...] and requested her to narrate the
story as she was recording the story. After they finished, she read the statement
back to Ms D[...] and translated same in Xhosa as she wanted to ensure that
there is nothing omitted. After Ms D[...]’s confirmation that the statement was
correct, she requested Ms D[...] to sign same as she did. She concluded by
saying that what is in the statement was received from Ms D[...].
[33] That concludes the summary of evidence that was adduced during the
current criminal proceedings. It is on the basis of this evidence that this matter
has to be decided.
Legal Principles
[34] There being criminal proceedings the guiding principle was set out very
succinctly in Shackell1 as follows:
“30. ………. It is a trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that a mere preponderance of
probabilities is not enough. Equally trite is the observation that, in view of this standard of
proof in a criminal case, a court does not have to be convinced that every detail of an
accused's version it true. If the accused's version is reasonably possibly true in
substance the court must decide the matter on the 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 to be so improbable that it cannot reasonably
possibly be true. On my reading of the judgment of the Court a quo its reasoning lacks
this final and crucial step. On this final enquiry I consider the answer to be that,
notwithstanding certain improbabilities in the appellant's version, the reasonable
possibility remains that the substance thereof may be true. This conclusion is
strengthened by the absence of any apparent reason why the appellant would, without
any motive, decide to brutally murder the deceased by shooting him in the mouth at
point blank range. As a consequence, the matter must be decided on the appellant's
version. According to the appellant's version he never intended to fire a shot. On the
version. According to the appellant's version he never intended to fire a shot. On the
acceptance of this version there is no room for a finding of dolus in any of its
recognised forms. If follows that the conviction of murder cannot stand.
[35] It is now incontrovertible that in criminal proceedings the onus lies with
the state to prove that all element of the offence are satisfied2.
“57. It is trite that the State bears the onus of establishing the guilt of the appellant
beyond reasonable doubt, and the converse is that he is entitled to be acquitted if
1 S v Shackell 2001 (2) SACR 185 (SCA) at 194 G-H Para 30; 2001 (4) all SA 279; 2001 (4) SA 1 (SCA) Para
30
2 S v Mbuli (1) SACR 97 (SCA) Para 57
there is a reasonable possibility that he might be innocent ( R v Difford 1937 AD
370 at 373, 383). In S v Van der Meyden 1999 (2) SA 79 (W), which was adopted and
affirmed by this Court in S v van Aswegen 2001(2) SACR 97 (SCA), I had occasion to
reiterate that in whichever form the test is applied it must be satisfied upon a
consideration of all the evidence. Just as a court does not look at the evidence
implicating the accused in isolation to determine whether there is proof beyond
reasonable doubt so too does it not look at the exculpatory evidence in isolation to
determine whether it is reasonably possible that it might be true. In similar vein the
following was said in Moshephi and Others v R (1980-1984) LAC 57 at 59 F -H,
which was cited with approval in S v Hadebe & Others 1998 (1) SACR 422 (SCA) at
426 f-h:
"The question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was established
beyond reasonable doubt. The breaking down of a body of evidence into
its component parts is obviously a useful aid to a proper understanding
and evaluation of it. But, in doing so, one must guard against a tendency
to focus too intently upon the separate and individual part of what is,
after all, a mosaic of proof. Doubts about one aspect of the
evidence led in a trial may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all the other available evidence. That is not to say that a
broad and indulgent approach is appropriate when evaluating evidence.
Far from it. There is no substitute for a detailed and critical examination
of each and every component in a body of evidence. But, once that has
been done, it is necessary to step back a pace and consider the mosaic
as a whole. If that is not done, one may fail to see the wood for the
trees."
[36] There is only one test in a criminal case, and that is whether the evidence
trees."
[36] There is only one test in a criminal case, and that is whether the evidence
established the guilt of the accused beyond reasonable doubt. The coronary is
that an accused is entitled to be acquitted if there is a reasonable possibility that
an innocent explanation which he has preferred might be true3.
[37] In Chabalala 4
“15. 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 result may prove that one scrap of
3 S v Sithole 1999 (1) SACR 585 (W) at 590 G-591C.
4 S v Chabalala 2003 (1) SACR 134 (SCA) Para 15.
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.
[38] In parenthesis for what I will be dealing with regarding Mr Giqwa’s
criticism of the evidence of I[...]2 I lay out the principle as outlined in the case
of Miller5 where Beadle CJ held
“ It is well accepted rule of evidence that the mere fact that a witness is a liar
does not mean that all his evidence must be disbelieved. Liars tell the truth
sometimes. As far as this particular matter is concerned, not only must each case be
examined in relation to its own particular circumstances, but every individual item of
evidence which the court is asked to accept or reject must be so examined. The court
must consider on the probabilities whether each item of evidence is credible or whether it
is not.”
[39] With regard to inferences that must be drawn from the facts of this case
both parties requested the court, on different aspects of the case to embark on
such exercise. Mr Giqwa in his well prepared, researched and reasoned heads of
argument relied for this proposition on the oft -quoted case of Blom6. The
principle in Blom was relied upon by the full court of this Division in Tom 7
where Van Zyl DJP held:
“[10]. The principles in relation to inferential reasoning are well established. The
standard of proof beyond a reasonable doubt in criminal proceedings requires
the application of, what the court in the oft-quoted case of R v Blom (Blom) referred
to, as the two “cardinal rules of logic”:
“In reasoning by inference there are two cardinal orders of logic which cannot be
ignored:
(1) The inference sought to be drawn must be consistent with all the
ignored:
(1) The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
5 S v Miller 1972 (1) SA 427 (Rad) at 428H-429B.
6 S v Blom, 1939 AD188 at 202.
7 Tom v S 2023 (2) SACR 283 (ECMK) Para 10-11.
(2) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt whether
the inference sought to be drawn is correct.”
[11] Some of the key principles underlying the test in Blom, as amplified in R v De
Villiers are the following: the facts from which the prosecution seeks to draw the
inference of guilt must not also be reasonably consistent with a hypothesis other
than the one relied upon, in other words, the inference of guilt must be the only
reasonable inference; there must be some evidential foundation to support the
inference to be drawn, and speculation, conjecture or a bare possibility will not be
sufficient; as the inferential conclusion sought to be drawn is determined against the
strength of the factual premise provided by the context of the facts of the case, all of
the circumstances established by the evidence are to be considered and weighed in
deciding whether the inference is consistent with the proved facts. The evidence must
be considered as a whole, and not by a piece-meal approach; and, following from the
fact that the burden of proof rests on the State throughout criminal proceedings to
prove the guilt of the accused beyond a reasonable doubt, the accused person is not
required to establish that some other inference should be drawn, or to prove
particular facts which are to support such other inference.
[40] In the same judgment of Tom Van Zyl DJP relied on R V Taylor weaver
and Donovan 21 CR App R20 at 21 to make a point about the reliability of the
circumstantial evidence as follows:
“[12] Circumstantial evidence is not considered to be inherently less reliable than
direct evidence. Wigmore laments the use of the term “circumstantial” to denote
evidence that does not in any way derogate in value from direct evidence.
[16] In R v Taylor Weaver and Donovan Hewart LCJ appositely said the following
[16] In R v Taylor Weaver and Donovan Hewart LCJ appositely said the following
about the value of circumstantial evidence:
“It has been said that the evidence against the applicants is circumstantial:
so it is, but circumstantial evidence is very often the best. It is evidence of
surrounding circumstances which, by undesigned coincidence, is capable of
proving a proposition with the accuracy of mathematics. It is no derogation
of evidence to say that it is circumstantial.
Discussion and Analysis
[41] It is a common cause that the accused was in the D[...] premises and not
only in the premises but also interacted with I[...], as I shall explain hereinafter.
It is also a common cause that I[...] was highly drunk and as a result of that she
vomited herself. The accused admitted that, after having been told by I[...]2
about I[...]’s condition, he took a cloth and prepared it and thereafter went to the
bedroom where I[...] was sleeping. He then wiped and cleaned up I[...] around
the mouth area as she had vomited herself. He admitted that he was the only
male person in the premises.
[42] Doctor Momoza, gave evidence which was entirely not gainsaid by the
accused. Of great significance is a “ small tear over the vaginal orifice on the
posterior aspect of the opening – bleeding that was not active” and a “whitish
fluid seen on the opening of the vaginal vault .” On the basis of these clinical
findings the Doctor concludes that “ sexual assault cannot be excluded” The
doctor explained that the tear on the vaginal orifice can only be caused by any
form of a blunt trauma -external object which induced the pulling force or cause
vaginal tissue pulling. She further testified that the small fresh tear on the
vaginal orifice was with fresh blood and there was no active bleeding. The
blood was consistent with the tear mentioned above.
[43] Another aspect that was not gainsaid is the fact that, on arrival of Ms
D[...] and Z[...], and when presented for medical examination I[...] was without
an underwear or panty. They found it on top of the dresser in the same bedroom
I[...] was sleeping in. There is no evidence, especially from the accused, that
I[...] did not wear an underwear or panty on that day, instead the evidence
suggests that I[...] had worn her underwear or panty on that day. It is not
gainsaid that I[...] wore her underwear or panty during the course of that day.
[44] This matter is capable determination only on the common cause facts,
without engaging with the disputed fact of rape. The common cause facts
outlined above raise many adverse questions against the accused. What is
singularly unclear is the cause of the fresh small vaginal tear on the posterior
aspect of the vaginal orifice or opening with blood that is consistent with that
tear. The Doctor clearly testified that it might have been caused by blunt trauma
which is an external object which caused the pulling force of the tissue.
Whatever that object or trauma might be, it was an object or trauma that was
penetrating I[...]’s vagina from outside her vagina. Secondly, the presence of a
whitish fluid in the viginal vault of I[...], is something that boggles one’s mind,
especially in the light of the Doctor’s evidence during cross examination that
there is no reason to assume infection in the light of the history of the victim.”
The history demonstrates inter alia, that there was no relevant medical history
and medication and that there was no date and time of last intercourse with
consent. The common cause facts are very much congruent and complementary
to the ensuing evidence:
[45] Both I[...]2 and Luvano testified that they saw the accused on top of
I[...]. I[...] testified that the accused took off or removed her underwear as his
accused pair of trousers were lowered to and or below knee level. According to
I[...] the accused came close to her, especially with the chest area. As I[...] was
trying to push the accused away as she was lying on the bed, she felt so weak
and thereafter blacked out. The question of underwear is corroborated by the
fact that Ms D[...] and Z[...] saw I[...]’s underwear or panty on the dresser and
I[...] was not wearing her underwear. The Doctor testified that I[...], when
presented for medical examination was without an underwear and was crying. I
accept that the tear with blood on I[...]’s vaginal orifice and the presence of the
whitish fluid on I[...]’s vaginal vault was caused by the sexual penetration at the
instance of the accused. The sexual intercourse was without I[...]’s consent as
she was highly intoxicated and ultimately passed out and could not know what
she was highly intoxicated and ultimately passed out and could not know what
could have happened onto herself.
[46] Looking holistically on the evidence adduced before this court, there is no
explanation at all at the instance of the accused as to what might be the possible
cause of the tear in I[...]’s vaginal orifice and the presence of whitish fluid in her
vaginal vault. The tear and the presence of the fluid are two distinct elements
that possibly might have been caused by one single act of an intercourse. There
was no evidence at all to suggest that the blunt trauma or external object which
caused the tear aforesaid could not be the accused’s penis. The weight of the
evidentiary material before me was met with a bare denial from the accused that
he did not rape I[...]. The accused bare denial is rejected for it is not reliable,
uncreditworthy and the accused was not a convincing and trustworthy witness
as he avoided to answer the weight of evidence against him frontally and blow
by blow. When giving his own evidence the accused was not coherent and was
difficult to be followed.
[47] Another mind bogging aspect of this matter is the manner in which the
accused conducted himself when meeting Ms D[...] for the first time at the
lounge or sitting room after the incident. He met Ms D[...] and made a very
terse statement that I[...] had vomited herself and he tried to clean her up (I
paraphrase). He said that when passing Ms D[...] towards the exit door and Ms
D[...] went only with her grandchildren to the bedroom where I[...] was.
Thereafter there was no trace of the accused in the premises. The answer that he
waited a bit and went to collect the goats was a knee jerk reaction to the serious
question asked to him during cross examination. What is again important in that
same cross examination, the accused confirmed that after he volunteered that
terse statement to Ms D[...], he did not go and follow up on what had transpired
after Ms D[...] had been in the bedroom in which I[...] was sleeping. He did not
proffer any explanation for that failure to follow up.
[48] Mr Giqwa, Counsel for the accused was constrained to accept that that
conduct was concerning. The accused, a 57 -year-old man could not thoroughly
explain the incidents coherently and cogently to Ms D[...], from beginning to
the end; the role he, as a parent himself, played when confronted with a child
presenting with high intoxication resulting in the running of a stomach and
severe vomiting. His cavalior attitude and apathy leaves much to be desired
and renders his evidence not reliable and trustworthy and thereby susceptible to
rejection. When examining accused conduct, it is unavoidable to come to a
conclusion that he engaged in that evasive conduct to ease his conscience of
what he had done.
[49] Mr Giqwa sought refuse on the cautionary rules to impugn the evidence
of I[...]2, I[...] and Luvano, the minor children who gave evidence as eye
witnesses. Age cannot on its own avail defence to the acquittal. Their evidence
was coherent, easy to understand and sincere notwithstanding that they were
minor children. Their evidence was corroborated in material respects. For
instance, the fact that they saw the accused on top of I[...] is in synch or
consistent with the Doctor’s evidence that there was a fresh tear with blood on
I[...]’s vaginal orifice and that there was whitish fluid in I[...]’s vaginal vault.
Their power of observation cannot be impugned. They knew the accused as
Mashumi who used to spend a lot of time at their home. They could not mistake
him for any other person. There is no explanation as to why they could lie to
this court about such an important and crucial thing in human life. I[...]’s
evidence was so reliable and trustworthy because, she was forthcoming and
truthful to tell this court that she does not know what happened after she passed
out. She did not manipulate her evidence to say she was raped by the accused.
She did not manufacture any facts to pin the accused onto the charge of rape.
[50] I accept that although there are minor incongruities in the evidence of
I[...]2 and Luvano about the Television, these incongruities are immaterial and
did not change the substance of their evidence. I was satisfied with their
demeanour as compared to that of the accused. It is also immaterial whether
Luvano and I[...]2 went once or twice in the grazing veld. What is important
they corroborated each other to say the accused sent them to look for the goats.
When they came back from the veld the accused was in the bedroom where I[...]
was sleeping. The accused accepts that he wiped and cleaned up I[...] on the
mouth area as she vomited herself. That is congruent with I[...]’s version. I[...],
in her version did not conceal good things the accused did, hence her evidence
is trustworthy and reliable. On the other hand, accused version that he did not
notice that I[...] passed out is unbelievable. I[...] testified that she passed out
when the accused was wiping her.
[51] Almost all the factual state witnesses testified to the effect that I[...]
passed out. Accused version to that effect leaves much to be desired and it is
inexplicable that he could not see that which everybody saw especially that she
passed out when she was in his hands. The accused testified that Z[...] gave the
minor children a wine to share and they drank. Surprisingly, there is no other
child who was drunk except I[...]. There is no explanation at the instance of the
accused as to why other children were not drunk when they had consumed
liquor. The children corroborated each other that accused gave I[...] liquor to
drink as opposed to accused version that Z[...] gave them. I am therefore
satisfied that the state has proved its case beyond reasonable doubt.
[52] On the conspectus of all the evidence, I am satisfied that the accused
turned I[...]’s home, which is meant to be a place of her safety and security into
a place of horror and traumatic experience. It now serves as reminder of horrific
a place of horror and traumatic experience. It now serves as reminder of horrific
and traumatic encounter she had with the accused, who was supposed to be a
parent and a protector of I[...] and who should have played an accruistic role as
a father figure. He turned that home into a crime scene which is an antithesis of
what a home should be to a child where he or she should be moulded and
educated.
[53] Referring with approval to the work of Ellen G White Education, page 7,
Mbenenge J8 (as he then was) made the following dictum with reference to the
education and home:
“22….. In its broadest sense, true education is well defined as the harmonious
development of all faculties – the hand, the heart and the head. It is in early years in
the home and in the formal schoolwork that the mind develops, a pattern of living is
established, and character is formed….”
Accused reprehensible conduct has devastating effects to all the members of
that family in which he was placed on the position of trust, which effects will
have long lasting social, immotional and mental or psychological consequences.
They will for the longest of times be unable to trust any male human being.
Order
[54] In the result I make the following:
1. The accused is found guilty of rape in contravention of section
3 read with section 1, 50, 55, 56, 56(1), 56A, 57, 58, 59 and 60 of
Criminal Law (Sexual offence and related matters)
Amendment Act 32 of 2007.
_________________________________
8 M.A.N v L.M.M; In re A.S.K.M (1278) [2016] ZAECMHC 33 (5 July 2016) Para 22.
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the State : Adv L . Mtyobeni
Instructed by : National Prosecuting Authority
Bisho
040 608 6826
LMtyobeni@npa.gov.za
For the Accused : Mr Giqwa
Instructed by : Legal Aid SA
King William’s Town Office
2nd Floor Old Mutual Building
Cnr Cathcrt and MaCclean
AndileG@legal-aid.co.za
Matter heard on : 6 July 2026
Delivered on : 25 August 2026