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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this

document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES/NO (2) OF INTEREST TO THE JUDGES: YES/NO (3) REVISED 1/10/2020

CASE NO: A247/2019

In the matter between:

NQOTHULA SIBUSISO Appellant

and

THE STATE Respondent

J U D G M E N T

LEDWABA AJ

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Introduction

[1] In terms of section 309 of the Criminal Procedure Act 51 of

1977(the CPA) as emended by section 10 of the Judicial

Matters Amendment Act 42 of 2013, the appellant is

appealing against the conviction and sentence by the

Regional Court Magistrate JF Steyn sitting at the Regional

Court, Oberholzer. The charge sheet states that on or about

the 9th December 2012 and at or near Khutsong, in the

Regional District of Gauteng, the appellant committed the

offences of kidnapping and rape.

[2] In respect of the kidnapping charge, it is alleged that the

appellant unlawfully and intentionally deprived R[....] M[….]

(R[....]/the complainant) of her freedom of movement by

means of forcefully and against her will, taking her to a veld

near Gugulethu, Khutsong.

[3] The rape charge is stated to be an act in contravention of

section 3 read with sections 1, 55, 56(1), 57, 58, 59, 60 and

61 of the Criminal Law Amendment Act (Sexual Offences

and Related Matters) Act 32 of 2007 read with sections 256,

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257 and 261 of the CPA; the provisions of section 51, 5 and

schedule 2 of the Criminal Law Amendment Act 105 of 1997

(the Act) as amended as well as section 92(2) and 94 of the

CPA. The charge sheet states that the appellant did

unlawfully and intentionally commit an act of sexual

penetration with a female person, to wit, R[....] (19 years) by

having sexual intercourse without her consent.

[4] The appellant was sentenced to five years imprisonment in

respect of the kidnapping charge and life imprisonment in

respect of rape charge, hence the automatic right of appeal

against sentence. The two sentences were ordered to run

concurrently.

[5] The appellant was legally represented and before he was

requested to plead to the charges, the court explained to him

the provisions of the minimum sentence to the effect that in

the absence of substantial and compelling circumstances in

respect of the rape charge, he could be sentenced to life

imprisonment. Competent verdicts were also explained to

him. He pleaded not guilty to both charges.

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The Background – The state’s version:

[6] As witnesses, the state called Constable Dingiswayo

(Dingiswayo), Sergeant Napai (Napai, Thabo L[....] (L[....])

and the complainant.

[7] Dingiswayo is the arresting officer of nine years’ experience.

Having received a complaint and the suspect’s description as

a person with a lot of tattoos on his face, he found the

appellant at Margaret tavern and requested him to come with

him to the complainant’s place. At the complainant’s place,

she identified the appellant as the person who committed the

offences. He was arrested and when told about the reason

for his arrest, his response was that the complainant was his

girlfriend. He was taken and detained in the police cells.

[8] Napai, a thirteen years experienced police officer and the

investigation officer in this matter was at that time stationed

at Carletonville police station. While on standby, she

received a call about the alleged offences of kidnapping and

rape. She was later told that the complainant, her boyfriend

and another witness were at the police station. The

complainant told her that she was with her boyfriend on their

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way home when she realised that she had forgotten her

umbrella at Tsungo tavern. On their way to Tsungo place

they were attacked by a group of men armed with a knife, a

panga and an empty bottle. The complainant tried to run

away but fell down. Four of the men took her, dragged her

behind the police station to the open veld and took turns in

raping her without using condoms. The appellant then

apparently emerged onto the scene after the gang rape and

was addressed by the others as “Boss”. He then took her to

his shack in Rivonia Extension 3 where he undressed and

raped her again. The complainant described the suspect who

raped her at the shack as having a lot of tattoos and was

able to see his face. She observed these while her attacker

was busy raping her. Before the appellant removed her to his

shack, the men argued among themselves as to whether to

kill her. She testified that the complainant had told her that

she had told the appellant she feared the rape might result in

her becoming pregnant and the appellant promised to bring

her cellphone back. She then arrested the appellant and took

the complaint for DNA sampling. As she was not present,

she could not comment on the version that the appellant met

the complainant at the tavern, later in the street and they

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agreed to go together to his places to have consensual sex.

She denied that the following day the appellant took the

complaint half way to her home because according to the

complainant’s statement, the appellant told her to leave

because his girlfriend by the name of Kilebogile was coming

to the shack. She denied the version that when they went to

bed that evening, Kilebogile slept on the bed while the

appellant and the complainant slept on the mattress on the

floor.

[9] L[....] is the complainant’s boyfriend. He testified that around

14h00-15h00 he met the complainant. She told him that she

was going out and they agreed that she would call him to

come and collect her once she was done with what she was

going to do. He testified that while at Lashilwe’s place, the

complainant called and requested him to come to collect her

from Tsungo’ place. Accompanied by his friend Doctor, they

went to collect the complainant with her friend D[....] M[....]

(M[....]). On their way from taking M[....] half way to her home,

they met about twelve men who inquired from him whether

the complaint was his girlfriend and when he answered in the

positive, one of them took out a knife and the other one an

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empty bottle. As they ran away, the men apprehended the

complainant. He went to his home not far from there and

called his brother to accompany him to report the kidnaping

case at the police station. The police accompanied him to the

nearby squatter camp but they could not find the complainant.

He met the complainant the following day on her way to the

police station. He knew the appellant by sight only. He

denied that the appellant is the complainant’s girlfriend. He

disputed the allegation stated on the J88 form that at around

13h00 that day and before meeting him, the complainant had

a sexual intercourse with someone else. He replied that the

complainant and himself were staying in their respective

parental homes, with the complainant staying the second

house from his home. He stated that they did not have sex

before the complainant went to Tsungu Tavern.

[10] The complainant testified in camera that on that day her

friend M[....] visited her home and they decided to go to

Tsungo’s tavern where they drank Strongbow “wines”. She

communicated then with her boyfriend and they agreed to

meet at the robot next to the police station for him to

accompany M[....] to her home. Her boyfriend came with his

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friend Doctor and after they had walked M[....] half way to her

home, she went back to Tsungu tavern with her boyfriend to

collect her umbrella which she had left behind. While they

were on their way to collect her umbrella they met a group of

young men who confronted them. One of them had a knife

and another had a bottle. She tried to run away but the next

moment she noticed she was lying on the ground with the

men undressing her clothes. One of them took off her shoes

and the other one placed a knife on her neck ordering her to

keep quiet. They chased her boyfriend away and took turns

raping her. They took her by force and walked her across a

stream. As they were walking and quarrelling amongst

themselves, the appellant appeared and one of them gave

him the knife. At a certain ditch they said the appellant

should remain with her while the others left. One of the group

wanted the appellant to rape and kill her, while two others

were against the idea. When appellant and the complainant

remained behind at the ditch, the appellant wanted to rape

her but the other men then came back and stopped him.

One group of the men then left again and the other group

remained with the appellant. She does not know what

happened to those who remained as they disappeared at

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some stage. The appellant then took her to his shack where

he unlocked it and pushed her inside. He locked the shack

from outside with a chain and left. The group came back and

knocked at the shack but she kept quiet until they left. The

appellant came back to the shack and used another entrance

to enter the shack. He ordered her to undress and when she

resisted, he produced the same knife he had produced

earlier in the veld and threatened her with it. He undressed

her skirt and raped her twice. It was in the early hours of the

morning around 2am. He apologised on behalf of the group

and acted as if she was his girlfriend. When she asked the

appellant about her cellphone which was taken by the men,

he replied that he knew nothing about it and requested her

cellphone number. She gave him her friend’s number. The

appellant then loaned her some shoes and a “top” to wear.

She asked for taxi money and he said he did not have it. He

suggested that they go to his friends for taxi money but she

refused, fearing that they could rape her again. He took her

half way and said his girlfriend was coming to his place. He

did not want her to look back and see the shack properly.

She could see that she was in the vicinity of her friend

M[....]’s place but was so confused that she lost her way. She

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was helped by another man to find M[....]’s place. At M[....]’s

place she wanted to wash herself but M[....] advised her

against it as that could tamper with evidence. They went to

report the matter to the police. After opening the case she

was taken to Sybrand van Niekerk hospital for tests and then

taken home. It was the first time that she had seen the

appellant. She had not seen him at Tsungu tavern.

[11] Her version was tested during cross-examination. She

replied that there was nobody in the shack when they had

gotten there and does not know the appellant’s girlfriend.

She could not remember if they had sexual intercourse with

her boyfriend while at his home before she went to Tsungu’s

place. At that time, she only had the one.

[12] She replied to a question that when she was raped by the

four men in the first rape incident in the veld, the appellant

was not there but came and joined the group and her

observation was that he was the leader of the group as they

were addressing him as the “Boss” and that is why they left

her with him to rape and kill her. She further replied that at

one point as they were walking, they saw a police van at a

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distant on the tar road but she was then “grabbed away”.

She also replied that her shoes were later collected by her

boyfriend where she left them when she had fallen down and

she had only borrowed the appellant’s clothing items

because it was cold the following morning. She left the

appellant’s items at M[....]’s place and learned that M[....] had

thrown the shoes away. The “top” could not be located as

they had changed the residential place.

[13] The appellant’s version was put to her upon which she

denied that her relationship with the appellant had started in

2012 when they met at a tavern and exchanged contact

details. She denied that on the day of the incident, the

appellant met her at Tsungu tavern while she was in the

company of her two friends and when he gave her R100.00

at her request to buy liquor. She denied that he later met her

after disappearing where she was assaulted and he rescued

her before they went to his place where they were let in by

his girlfriend Kelebogile. She denied they had consensual

intercourse once on the floor while the appellant’s girlfriend

was sleeping on the bed.

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[14] She replied that during that week she had sexual intercourse

with her boyfriend. She denied the allegation stated in the

J88 form that she had sexual intercourse around 13h00 on

the date of the incident.

[15] The witness M[....] had passed away by the time of the trial.

In a trial within the trial and in terms of section 3(1)(c) of the

Law of Evidence Act 45 of 1988, the state successfully

applied for the admittance of the deceased witness’ hearsay

evidence made shortly after the incident in the form of an

affidavit. The contents of the affidavit corroborated the

complainant’s evidence and that of her boyfriend L[....]

The appellant’s version:

[16] The appellant testified that the complaint is his girlfriend.

They allegedly met previously at Granny’s tavern in Skoppas

section and on the day of the incident, he met her at Tsungu

tavern in the company of her friend D[....]. She requested him

to buy them liquor and he gave her R100.00. She agreed to

go with him to his place. After drinking some liquor and when

he later looked for her, he could not find her and decided to

go home. He found her on the street with one young man

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busy slapping her with open hands. Her assailant ran away

and she agreed to go with him to his shack. At the shack

they unexpectedly found his girlfriend Kelebogile. The

complainant argued with Kelebogile and he intervened. He

spent the night with the complainant sleeping on the matrass

based sponge on the floor while Kelebogile slept on the bed.

He had one round of sex with the complaint. Fearing that

there could be a fight if Kelebogile woke up before the

complainant had left, he woke the complainant up around 5

am. The complaint borrowed his jersey and also gave him

her cellphone number. He denied that he gave her shoes. He

walked with her for a distance between extension 3 and

Christ Hani section. He denied having apologized on behalf

of the complainant’s attackers, having undertaken to return

her cellphone and being told by the complainant that she felt

like being pregnant as a result of being gang raped. The

appellant denied having arrived where the complainant was

being raped and being referred as “boss”. He denied having

pointed a knife at the complainant and raped her. His view

was that the complainant had reported him because she

unexpectedly found his girlfriend at his place.

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The trial court’s findings:

[17] Among others, the trial court found:

(a) that there was one contradiction with J88 medical

record which recorded that the complainant had

previous intercourse during the day around 13h00.

Both the complainant and her boyfriend L[....] disputed

the contents of the report in this regard;

(b) that instead of simply saying the appellant met her on

the street and took her to his home, there was no

reason for the complainant to create a complicated

version of her being kidnapped and gang raped before

the appellant joining the group in the manner he did

and proceeded to kidnap her to the shack and rape her;

(c) it strange that the appellant would accidentally meet

the complainant at the tavern, buy her beers and the

complainant would have left without him noticing that;

(d) it improbable that having been recently gang raped by

four men, the complainant would have consented to

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have sex with the appellant and again in the presence

of the appellant’s girlfriend sleeping on the bed in the

same shack;

(e) it also improbable that the appellant having allegedly

succeeded in stopping the argument between the

complainant and Kelebogile and the alleged two

girlfriends having spent the night in the same shack, he

would still fear that Kelebogile would still fight the

complainant the next morning that he had to remove

the complainant from the shack;

(f) it strange that the appellant did not know the

complainant’s address despite his claim that they are

in a love relationship;

(g) it strange that the appellant was not interested to

establish why his alleged girlfriend was slapped with

open hands by a stranger; and

(h) the appellant did not satisfactorily answer all the

questions put to him.

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Evaluation:

[18] The record of the court proceedings indicates that some of

the record is missing and that some were completed with a

black pen. Despite these missing portions, the proceedings

can be followed from the record and none of the parties have

indicated that this appeal cannot be finalised without the

missing portions. The missing portions are not of such a

nature or extent that this will prevent the fair dealing with this

appeal.

[19] The state bears the onus of proving its case beyond

reasonable doubt. If the accused’s version is found to be

reasonably possibly true, she or he is entitled to the benefit

of the doubt and acquittal.1

[20] The obligation of the state to prove its case beyond

reasonable does not mean it is obliged to close every

avenue of escape which may be said to be open to an

accused. It is sufficient for the state to produce evidence by

means of which such high degree of probability is raised that

the ordinary reasonable man, after mature consideration,

1 S v Mbuli 2003 (1) SACR 97 (SCA) at 110 D-F and S v V 2000 (1) SACR 453 (SCA) paragraph 3

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concludes that there exists no doubt that an accused has

committed the crime charged.2

[21] Unless an appeal court finds that a trial court has misdirected

itself, it will be hesitant to interfere with its factual findings

and the evaluation of the evidence. 3 This means that the

powers of an appeal court to interfere with the findings of fact

of the trial court are limited to where a trial court has

misdirected itself.4

[22] The identity of the appellant is not in dispute. He was

correctly identified by the complainant and has admitted to

having sexual intercourse with the complainant on the date

of the incident. The evidence that the complaint and the

appellant went to the appellant’s place, spent the night

together and had sexual intercourse is common cause. At

issue is whether the appellant forced the complainant to go

with him to his place and then had sexual intercourse with

her against her will. Simply put the question is whether there

was rape or consensual intercourse.

2 S v Phallo & Others 1999 (2) SACR 558 (SCA) 3 R v Dhlumayo & Another 1948 (2) SA 677(A) and S v Mlumbi 1991 (1) SACR 235 (SCA) at 247g 4 S v Francis 1991 (1) SACR 198 (A) at 198j-199a

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[23] The appellant’s submission is that he was not part of the

group when the complainant was taken into the veld and that

he appeared on the scene after the gang rape. The state’s

kidnapping charge relates to the movement of the

complainant to the appellant’s shack and the question is

whether this was against her will.

[24] With regard to the rape charge, the appellant submits that

the state failed to prove that he was present and participated

in the rape by a group of men. It is common cause that the

appellant came into the scene after the men had gang raped

the complainant. It is also the state’s case that the appellant

was prevented from raping the complainant at a ditch before

they arrived at the shack. My understanding is that the rape

charge is based on what happened inside the appellant’s

shack. It is common cause that the appellant had sexual

intercourse with the complainant in the shack. At issue is

whether it was consensual and the number of times that

occurred. While the appellant says it happened once with the

complainant’s consent, the complainant says it happened

twice without her consent and at knife point. The appellant

submits that the complainant’s statement that he “raped me

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twice” was not pursued for clarity as to whether the allegation

is that the complainant was penetrated twice and not

necessarily raped twice. He submits that the state failed to

prove beyond reasonable doubt that he committed two acts

of rape. He submits that repeated acts of sexual penetration

do not necessarily constitute a new offence of rape.

[25] The state case is that with one encounter with the

complainant, the appellant raped the complainant more than

once as envisaged in section 51(1) read with part 1 of

schedule 2 of the Act.

[26] The Legislature envisaged an accused being charged with

one count of rape if, in the course of his encounter with his

victim, he penetrates her more than once. The repeated

penetration of a victim is what aggravates the perpetration of

a rape and renders an accused liable for life imprisonment. It

is the multiple acts of penetration that attracts life sentence.5

The correct way of charging an accused who raped the

victim more than once in the course of a single encounter is

to charge such an accused with one count of rape.6 Without

5 S v Maxabaniso 2015 (2) SACR 553 (ECP) ( Maxibaniso)- paragraph 25- page 558 6 Maxabaniso (above)

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any of these legal arguments having been explained to the

complainant, the evidence that she volunteered on her own,

was that the appellant raped her twice. There is no basis to

interpret the complainant’s own voluntary statement in any

other way than how she puts it. There is no basis to

interrogate what she meant by being raped twice to

determine whether there was muiltiple penetration,

ejaculation or interruptions. There is thus no basis to

complain that at the trial stage, there was a need to clarify

the complainant’s statement and there is certainly no basis to

do such clarification at this appeal stage. The rape offence

was committed in the circumstances where the complainant

was raped more than once, with life imprisonment being an

appropriate sentence. The appellant was thus correctly

charged and convicted of raping the complainant more than

once.

[27] From the time the charges were put to the appellant, he

knew that he was facing a sexual offence charge read with

section 51(1) of the Act. The parties conducted the hearing

on the understanding that the appellant was facing a rape

charge committed more than once. The appellant knew that

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absent substantial and compelling circumstances, he was

facing life imprisonment if found guilty. 7 He was not

prejudiced in the conduct of his defence and there was no

trial related prejudice.

[28] There is no basis to interfere with the court’s finding that the

complainant was taken by the appellant to his shack against

her will. This constitutes kidnapping by the appellant. The

appellant’s allegation that she laid complaints because she

unexpectedly found his girlfriend at his place does not make

sense.

[29] The state rightly points out the improbability of the two

girlfriends accepting to be made to spend the night with the

appellant next to each other after the protestation by

Kelebogile for the appellant having brought another girlfriend

to the shack. The possibility of consensual sexual

intercourse in that set up is too hard to believe. It is also hard

to believe that having argued with the complainant,

Kelebogile would be so fast asleep in the midst of sexual

intercourse between the appellant and the complainant that

7 S v Mahomotsa 2002 (2) SACR 435 (SCA) (2002) 3 All SA 534)

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she did not even thereafter hear them leaving the shack at 5

am.

[30] The state correctly submits that the appellant could not

explain why did he not ask the complainant the identity of the

person who was slapping her with open hands and the

reason for the assault.

[31] The appellant could also not explain how his girlfriend

Kelebogile came to the terms and agreed to sleep on the bed

next to him sleeping with the complainant after the two ladies

argued over their alleged relationship with him. He also could

not explain why did he became worried that if Kelebogile

woke up before he left with the complainant in the early

hours of the morning she would have fought with the

complainant.

[32] The state further correctly submits that the defence of the

alleged love relationship between the appellant and the

complainant and alleged consensual sexual intercourse is

such a solid defence that the appellant would have proffered

it immediately on his arrest and would not have waited to

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only disclose it in court at the trial.

[33] The state correctly submits that the appellant’s explanation is

not in line with the totality of the adduced evidence and was

rightly rejected.

[34] On behalf of the appellant, it is submitted that the appellant

was convicted on the basis of the single witness apparently

without applying the required cautionary rules. A single

witness is basically where, even if the state calls two or more

witness, a conviction rests on the testimony of single

witness.

[35] The principle in section 208 of the CPA is that the trial court

may convict on the evidence of single witness provided that

such evidence is satisfactory in every material respect.8 In

assessing the evidence of a single witness, a trial court must

look for any feature which corroborates such evidence in

increasing its confidence in convicting the accused.9

[36] It is correct that the complainant is a single witness in

respect of both charges. Her boyfriend L[....] witnessed the

8 Isaacs v S 2006 (2) All SA 163(c); S v Mokoena 1925 OPD 79 at 86 9 S v Banana 2002 (2) SACR 1 (ZSCA) 1

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first attack when the appellant was still not on the first crime

scene. The appellant came onto the scene after the

complainant was gang raped and he was given a knife to

rape and kill her. The trial court was conscious of the fact

that the appellant’s conviction depended on the evidence of

the complainant on this aspect and that it must be

approached with caution. It found that there were several

points of corroboration in respect of what had happened

before the kidnapping and rape incidents. There is

corroboration that the complainant and her late friend M[....]

went to Tsungu tavern, drank some beers and were later

joined by L[....] and his friend to take M[....] half way to her

home. The complainant L[....] corroborated each other about

the attack by a group of men and the complainant’s

kidnapping by these men after they took the deceased half-

way to her home and while they were on their way back to

Tsungu place to collect the complainant’s umbrella.

[37] Had the appellant’s version been the true facts, then the

complainant would have no reason to implicate him, being on

his version her boyfriend, after he had rescued her from

being gang raped. This version is too fanciful to be

25

reasonably possibly true.

[38] There is no basis to interfere with and overturn the trial

court’s findings of fact. The appeal on this aspect should fail

and the appellant’s conviction stands to be confirmed.

Sentence:

[39] The appellant has a previous assault conviction where he

was sentenced to eight months imprisonment and declared

unfit to possess firearm.

[40] By agreement between the parties, the victim impact

statement dated the 17th November 2017 was admitted into

evidence. The statement is to the effect that the complainant

still feels the effect of the rape. She is generally depressed,

feels lonely and isolated.

[41] The appellant’s personal circumstances are that he was

thirty years old at the time, unemployed, unmarried but

staying with his girlfriend and their two children. Had passed

standard seven.

[42] A knife was used to threaten the complainant. As she

26

submitted to the threat, she did not sustain serious injuries.

[43] The court found no substantial and compelling

circumstances.

[44] As the appellant had raped the complainant more than once,

absent substantial and compelling circumstances, life

imprisonment is the prescribed minimum sentence.10 Given

the circumstances of this case the trial court correctly found

no substantial and compelling circumstances justifying a

departure from the prescribed minimum sentence of life

imprisonment.

[45] Order:

1. The appeal is dismissed.

2. The sentences of five years and life imprisonment

imposed by the court of first instance in respect of

kidnapping and rape charges respectfully are confirmed.

The sentences are to run concurrently.

10 Maxabaniso - paragraphs 29 and 33- page 559/60

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______________________ LGP LEDWABA

Acting Judge of the High Court Gauteng Division, Pretoria

I agree and it is so ordered.

_______________________ N DAVIS

Judge of the High Court Gauteng Division, Pretoria

Date of hearing: 20th August 2020.

Judgement delivered on:

APPEARANCES

For the Appellant: Miss MMP Masete

Instructed by: Pretoria Justice Centre, Pretoria

For the Respondent: Adv. SD Ngobeni

Instructed by: The Director of Public Prosecution,

Pretoria