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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Unreportable
Case no: 692/2021

In the matter between:

ICM
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
ICM v The State (692/2021) [2022] ZASCA 108 (15 July 2022)

Coram:
Dambuza and Nicholls JJA and Tsoka, Musi and Salie-Hlophe
AJJA

Heard:
10 May 2022

Delivered:
15 July 2022

Summary:
Criminal law and procedure – evidence – sexual assault and rape
of child complainant in terms of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 – whether evidence was sufficient to sustain
convictions despite contradictions in testimony of single witness – complainant’s
motive to lie – admissibility and weight dependent on the facts of a case.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Maakane and Noko
AJJ, sitting as court of appeal):

The appeal is dismissed.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Musi AJA (Dambuza and Nicholls JJA and Tsoka and Salie-Hlophe AJJA
concurring):

[1] The appellant was convicted in the regional court, Pretoria, on five counts of
sexual assault in contravention of s 5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 (the Act) and one count of rape, in
contravention of s 3 of the Act. He was sentenced to 6 years’ imprisonment in respect
of the rape count and 18 months’ imprisonment on each of the sexual assault counts.
It was ordered that three of the sentences imposed for the sexual assault counts
should run concurrently with the sentence on the rape count; the effective sentence
was therefore 9 years’ imprisonment.

[2] He appealed against the convictions and sentences to the Gauteng Division of
the High Court, Pretoria (high court). The appeal against the convictions was
dismissed, however, the high court amended the sentence by ordering that all the
sentences in respect of the sexual assault counts should run concurrently with the
sentence on the rape count. The effective sentence was accordingly reduced to 6
years’ imprisonment. This appeal, which is with the leave of this Court, is only against
the convictions.

[3] Although the allegations of sexual assault and rape were disputed by the
appellant, the incidents during which it was alleged they occurred were not in dispute.
The appellant’s defence was essentially that the complainant had stretched the truth
by fabricating the sexual assault and rape aspects of the incidents. The argument was
further that it was at the complainant’s mother’s instigation that the complainant
concocted the lies about the incidents. The facts were the following.

[4]   The complainant, having been born on 2 April 2001, was about 11 years old at
the time of the incidents. She lived with her parents at a housing complex in Centurion.
Their home was opposite that of the appellant who lived with his wife. The complainant
was very fond of the appellant’s wife and visited their (appellant and his wife’s) home
frequently. As neighbours, they got along well until the events that led to the appellant’s
arrest.

[5] On 5 May 2012, the complainant attended a friend’s party. On Sunday 6 May
2012, at approximately 09h00 her mother fetched the complainant from her friend’s
home. When they got home the complainant cried. Her mother enquired what was
wrong, to which she replied that her vagina was painful. Her mother examined her and
noticed two ulcers on her vagina (labia majora). She took a photograph of the ulcers
and asked the complainant who had interfered with her, using the Afrikaans word
‘peuter’. Whilst the complainant did not answer initially, she pointed in the direction of
the appellant’s house, when her mother persisted with her enquiry. The mother
thereafter enquired whether it was the appellant and the complainant confirmed.

[6] The mother called her husband and on his arrival, they took the complainant to
Unitas Hospital where she was examined by a doctor. The doctor prescribed
medication and referred them to Ms Preston, a psychologist. She bought the
medication and her husband took the complainant to the psychologist the next day.

[7] On 8 May 2012 the mother laid a complaint against the appellant. The
investigating officer took them to the Tshwane Medico Legal Crisis Centre where the
complainant was examined by Dr Thosago who referred them to a gynaecologist. They

contacted the gynaecologist but could only secure an appointment during June 2012.
The mother decided to consult their family doctor, Dr Sommerville.

[8] The complainant’s mother testified that the complainant was initially not very
forthcoming about the details of the incidents but gradually opened up and told her
what the appellant had done to her. The complainant told her that the appellant
touched and rubbed her vagina and breasts and that he inserted his finger in her
vagina. The complainant told her that the last incident occurred on 24 February 2012.
It was a few days after her birthday, which is on 21 February.

[9] The complainant was 13 years old when she testified during 2014. She
pertinently recalled four incidents but testified that the appellant touched and or rubbed
her vagina and or breasts on more than seven occasions. The first occasion was
during 2011 when her father fetched her from school and they drove home. After he
parked the car, he went to the house while she went to the boot of the car in order to
take out her schoolbag. Whilst standing by the boot of the car the appellant
approached her from behind, touched her shoulder, and rubbed her breasts with his
hands. She felt very uncomfortable. She took her bag out of the boot and walked away.
There was nobody in the vicinity and she did not tell anybody about the incident. She
was afraid that she would be in trouble if she told anyone.

[10] The complainant was an athlete and also played hockey and netball. She used
to jog in the complex as part of her exercise routine. One day, during 2011, after
jogging, she went to the appellant’s house to greet his wife. The appellant and his wife
were home. She entered and sat on a one-seater couch. He was sitting on a three-
seater couch while his wife was busy in the kitchen. He requested the complainant to
sit next to him on the three-seater couch, which she did. They watched television and
the appellant hugged and then pressed her against him. He asked whether he may
tickle her stomach. She said yes but that he may do so on her back. He ignored what
she said and started tickling her on her stomach. The appellant made the complainant
lie on the couch in a supine position with her head on his lap. He initially tickled her
over her clothes but later he put his hand under her shirt and tickled her stomach and
rubbed his hand over her breasts. She tried to stand up but he pulled her back and

continued rubbing her breasts. He then rubbed his hand over her vagina and ultimately
put his finger in her vagina. He painfully moved his finger in and out of her vagina
followed by smelling his fingers after removing it from her vagina. While all this was
happening his wife was cooking in the kitchen. She was penned down on the couch
by his arm. She did not tell anybody about the incident because she was afraid.

[11] During 2011 the complainant was playing with a ball in the street. She
accidentally kicked the ball into the appellant’s yard. She entered the yard to retrieve
her ball. The appellant and his wife were preparing to have a braai. They were sitting
outside on camp chairs. She greeted them and the appellant requested her to sit on
his lap, she obliged. His wife went into the house. While she was sitting on one leg he
touched and rubbed her vagina with his hand, on top of her clothing. He also moved
his knee hard up and down against her vagina in a state of arousal. She removed his
hand, stood up, gave him a dirty look, took her ball, said goodbye to his wife and went
home.

[12] On another occasion she went to the appellant’s house and sat on the couch.
She was wearing ski-pants. The appellant sat next to her and suddenly rubbed her
thigh with his hand whilst also touching her vagina. His wife was in the garage when
this occurred. She did not tell anyone about this incident because the appellant
threatened to hurt her mother if she did.

[13] She confirmed that she told her mother on 6 May 2012, that the appellant
tampered with her. Although she told her mother that the last time that the appellant
interfered with her was during February 2012 a few days after her mother’s birthday,
she testified that nothing happened on that day.

[14] Dr Thosago’s medico-legal report was handed in as an exhibit after the defence
admitted its contents. He examined the complainant on 8 May 2012 and observed two
ulcers on her labia majora and a creamlike discharge. He referred her to a
gynaecologist.

[15] Dr Sommerville testified that she examined the complainant on 9 May 2012.
The complainant presented two large irregular shaped hyperaemic ulcers on her right
labia majora with a thick non-offensive vaginal discharge. Her hymen was still intact
and the complainant was not bleeding. She was of the view that the ulcers were
pathological and might have been caused by the herpes virus or human papilloma
virus. This could not be determined because no tests were done to detect viral
antibodies in her blood. According to her these viral infections can be transmitted by
digital penetration or touching. She explained that the fact that the hymen was still
intact does not mean that there was no penetration.

[16] Ms Du Plessis-Emmerich, a psychologist, testified that she interviewed the
complainant, her parents and the appellant. She did a forensic assessment of the
complainant. She did not do an intellectual or neurological assessment. She testified
that due to the complainant’s age and brain development, traumatic events would not
be stored in sequence and that it would be difficult for such a young child to remember
dates and times. She confirmed the contents of her discussions with all the parties,
which was contained in her report.

[17] The appellant testified that he was born on 12 April 1948. He was 66 years old
when he testified in 2014. He confirmed that he had known the complainant and her
parents since 2007 when he and his wife moved to the residential complex in which
they lived. He used to play badminton with the complainant and she frequented their
home. He denied having a three-seater couch. According to him there are only two
two-seater couches in his house.

[18] He testified that during 2009 the complainant asked him to tickle her because
her grandfather used to tickle her, until her mother put a stop to it. He asked why she
did not ask her father to tickle her and she told him that her father was busy playing
games. He asked what her mother would say if he tickled her, and she said her mother
would not have a problem if he did so. His wife was busy making pickled peaches in
the kitchen. He was busy reading a magazine. According to him, the complainant
merely sat next to him; she later lay on the couch with her head on his right leg. She
pulled her t-shirt up and pushed her short pants downward and he tickled her stomach.

He testified that he tickled her again in 2010. On this occasion his wife was in the
kitchen while he and the complainant were watching television. He denied ever
touching or rubbing her vagina or breasts or inserting his finger in her vagina.

[19] The appellant’s wife asserted that she would have seen if the appellant had
done anything untoward to the complainant. She confirmed that, during 2009, the
complainant requested the appellant to tickle her, which he did. She further confirmed
that the appellant went to Gqeberha on Monday, 20 February 2012 and returned on
Saturday, 25 February 2012. On this version, the appellant was not at home on the 24
February 2012, the day on which, according to the complainant’s mother, the last
incident of sexual assault occurred.

[20] Dr Van Wyk testified that he did not examine the complainant but had access
to the photograph that was taken by her mother and the medical reports compiled by
Drs Sommerville and Thosago. He was of the opinion that the ulcers were not caused
by a sexually transmitted disease. His opinion was that the complainant was not
penetrated because if she was, her hymen would not be intact and she would have
bled.

[21] In the high court the appellant submitted that the regional magistrate erred in
the following respects: (i) by not applying the cautionary rule when he evaluated the
complainant’s testimony; (ii) by not considering the testimony of Dr Van Wyk; and (iii)
by not properly assessing the testimonies of Dr Sommerville and Dr Van Wyk. The
high court rejected the appellant’s submissions and found that the regional magistrate
did not misdirect himself and that he did not commit any irregularity in his evaluation
of the totality of the evidence.  It found that the regional court’s factual findings were
correct.

[22] The complainant was a single witness and a child. Her testimony had to be
approached with caution. In terms of section 208 of the Criminal Procedure Act1 it is
competent for a court to convict on the evidence of a single witness. However, the

1 Section 208 of the Criminal Procedure Act 51 of 1977 reads: ‘An accused may be convicted of any
offence on the single evidence of any competent witness.’

evidence of a single witness must be clear and satisfactory in every material respect.2
This does not mean that such evidence must be flawless and beyond criticism. In S v
Sauls3 it was held that:
‘There is no rule of thumb test or formula to apply when it comes to a consideration of the
single witness . . . The trial Judge will weigh his evidence, will consider its merits and demerits
and, having done so, will decide whether it is trustworthy and whether, despite the fact that
there are shortcomings or defects or contradictions in the testimony, he is satisfied that the
truth has been told. The cautionary rule referred to by De Villiers JP in 1932. . .may be a guide
to a right decision but it does not mean “that the appeal must succeed if any criticism, however
slender, of the witnesses’ evidence were well-founded…’’ It has been said more than once
that the exercise of caution must not be allowed to displace the exercise common sense.’4

[23] With regard to the complainant’s age the legal position is that a court
considering the evidence of a child, must be satisfied that the child is a credible and
reliable witness. The credibility assessment relates to the child’s honesty whilst
reliability relates to the child’s cognitive ability or brain development. The child’s
cognitive ability is assessed by having regard to factors such as his or her ability to
encode, retain, retrieve and recount information or an event. The ‘intimidating and
bewildering atmosphere’5 under which the child testified should also be factored in. As
with any other witness, the child witness’ testimony should be evaluated in the light of
the totality of the evidence.

[24] Ms Du Plessis-Emmerich’s testimony relating to the complainant’s brain
development and the difficulty for such a young child to store and retrieve traumatic
events in sequence provided valuable guidance. The prosecutor’s guidance kept the
complainant’s testimony focussed and to the point. The complainant was subjected to
lengthy cross-examination. Her version remained consistent.

2 R v Mokoena 1932 OPD 79 at 80; R v Mokoena 1956 (3) SA 81 (A) at 85.
3 S v Sauls 1981 (3) SA 172 (A).
4 Ibid at 180E-G.
5 Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and
Others [2009] ZACC 8; 2009 (4) SA 222 (CC) at para 104.

[25]   The complainant’s testimony was not beyond criticism. She could not remember
the last time the appellant tampered with her. In her first affidavit, which was taken in
the absence of her parents, she said that the last time was at the end of 2011. In her
second affidavit she stated that the last occasion was during February 2012. During
cross-examination she testified that nothing happened during February 2012 or
specifically on 24 February 2012. Much of the cross-examination centred around what
happened or did not happen on 24 February 2012. It was submitted on behalf of the
appellant that he had prepared his defence around the dates that the complainant had
given, particularly in relation to the 24 February 2012. At the trial the appellant
produced a receipt for payment made to a guesthouse in Gqeberha, as proof that he
was not at home on the day in question.

[26] However, on the complainant’s own version nothing happened on that day.
Only her mother testified that the complainant told her that the last incident (the rape)
happened on 24 February 2012. This discrepancy in the evidence of the complainant
and her mother is immaterial because the rape incident was attached to broader
events which were not in dispute, such that the appellant was able to recall the day on
which the incidents was said to have happened. With regard to the other sexual assault
and rape incidents, the complainant described them also with reference to other
incidents that happened on those respective days. And those other events were not in
dispute. Consequently, the submission that the appellant suffered prejudice as a result
of uncertainty about the days on which the incidents happened is misplaced.

[27]   Equally untenable was the criticism of the credibility findings of the trial court.
Apart from the complainant’s inability to give exact dates on which the incidents
happened, the discrepancies between the various statements made by the
complainant to the police and her testimony in court were highlighted. In the
statements the complainant stated that the appellant had penetrated her digitally every
time when he touched her vagina, which was contrary to her testimony. The
submission on behalf of the appellant was that this was a material contradiction.

[28]   The complainant’s testimony that the first statement was taken in the absence
of her parents or an accompanying adult is particularly troubling. Although the

presence of a parent or an accompanying adult when a statement is taken from a child
is not a strict requirement, it is preferred.

[29]   It is also necessary to say something about the relevance of the medical
evidence, obtained from Drs Sommerville, Van Wyk and Thosago, when considering
the contention that the charges were fabricated at the instance of the complainant’s
mother. Whilst the report of the incidents of sexual assault and rape were triggered by
the discovery of the ulcers on the complainant’s private parts, it is not correct that the
trial court impermissibly found support or corroboration for the charges in the presence
of the ulcers. On the evidence of the three doctors the cause of the ulcers was
undetermined, except that Dr Van Wyk, who did not even examine the complainant
referred to the usual causes thereof, without giving a firm opinion on the likely cause.

[30] Dr Van Wyk’s testimony to the effect that because the complainant’s hymen
was intact, she had never been penetrated was disputed by Dr Sommerville. Dr
Sommerville testified that the hymen would not necessarily be torn after penetration
because it will depend on the extent of the penetration. In any event, Dr Van Wyk did
not testify about sexual penetration as defined in our law. Even under the common
law, when rape was narrowly defined as penile penetration of the vagina without
consent, the slightest form of penetration was sufficient to prove penetration.6 ‘Sexual
penetration’ is defined in the Act as, inter alia, including any act which causes
penetration to any extent whatsoever by any other part of the body of one person into
or beyond the genital organs or anus of another person.7 It is clear from the definition
that the slightest form of penetration is enough to constitute penetration. Penetration
certainly does not mean that the hymen must be torn as Dr Van Wyk testified. Dr Van
Wyk’s opinion is clearly untenable and was correctly rejected.

[31]   Furthermore the appellant’s suggestion that the complainant was coached by
her mother to falsely implicate him in allegations of sexual assault and rape is
improbable. To do so the complainant and her mother would have had to conspire

6 S v K 1972 (2) SA 898 (A) at 900C.
7 Section 1 of the Act.

about what they would tell the psychologist. The detail and consistency in the evidence
of the complainant and Ms Du Plessis-Emmerich disproves this contention.

[32] It is trite that the State bears the onus to prove the guilt of an accused beyond
reasonable doubt. The decision to convict or acquit must be based on the totality of
the evidence. It has been said that ‘[s]ome of the evidence might be found to be false,
some of it might be found to be reliable, and some of it might be found to be only
possibly false or unreliable, but none of it may be ignored.’8

[33] I agree that generally, as the appellant submitted, it is unfair and irregular for a
judicial officer to expect an accused to demonstrate that a complainant had a motive
to lie. In most cases this would amount to calling on the accused to speculate on the
possible motive. This might amount to inadmissible opinion evidence, because no
witness can give factual evidence of the motives of another person. An accused may
put a possible motive to a complainant during cross-examination. He may testify and
be cross-examined on that aspect. Where an accused alleges and proves a possible
motive to lie, that fact must be evaluated with all the other evidence in order to discern
whether it should detract from the complainant’s credibility. However, the fact that the
complainant had a motive to lie is not proof of the fact that the complainant lied.

[34]   The regional magistrate said the following, in his judgment:
‘Maar waarom moet die kind nou verwys na die beskuldigde as dit nie hy was nie? Waarom
het die kind nie na die pa verwys nie, of die onderwyser by die skool, of ‘n seun iewers in die
kompleks nie; … Waarom, dit is die vraag.’9
He then found that the complainant had no motive to lie about the appellant. Counsel
for the appellant submitted that the regional magistrate harnessed the lack of a motive
to lie to make an adverse credibility finding against the appellant.

[35] Indeed the absence of a motive to lie should not be used to enhance the
complainant’s credibility. Likewise, it should not prejudice an accused. In most cases

8 S v Van der Meyden 1999 (1) SACR 447 (W) at 450a-b; S v Trainor 2003 (1) SACR 35 (SCA) at
para 9.
9 ‘But why would the child refer to the accused if it was not him? Why did she not refer to her father, or
a teacher at school, or a boy somewhere in the complex… why is the question.’ (My translation.)

the absence of a demonstrable motive to lie would be a neutral factor. Each case must
be judged on its own facts.10

[36] In the context of this case, the regional magistrate’s remark and finding must
be considered in its proper context – that is that the remark was triggered by the
appellant’s testimony that the complainant and her mother were protecting the real
perpetrator, whose identity they knew, but concealed to falsely implicate him.

[37] It was submitted, on behalf of the appellant, that the regional magistrate did not
give due consideration to the testimony of the appellant’s wife. Whilst it is true that the
regional magistrate did not refer to her evidence in his evaluation of the evidence, this
does not mean that he ignored it. The regional magistrate accepted the appellant’s
wife’s testimony that the appellant was not at home on 24 February 2012.

[38]   The appellant’s wife’s testimony was not without fault. During cross-examination
she contradicted the appellant and her own testimony.  The appellant had testified that
the complainant told him and his wife that her breasts were developing and that she
had a boyfriend. His wife confirmed that the complainant told her that her breasts are
developing, but she did not mention anything about a boyfriend. She testified that he
tickled the complainant on one occasion in 2009, whilst it was common cause that he
did it twice in her presence. It was common cause that the appellant tickled the
complainant while she was laying on the couch with her head on his lap, his wife
testified that he did so while she was sitting next to him. She explicitly denied that the
complainant lay with her head on his lap. When she was confronted with the
appellant’s version that the complainant’s head was on his lap, she testified that she
did not see that because she was busy.

[39] In addition she could not remember the braai incident and testified that
complainant went to their house and spoke to the appellant. When she was pressed
to give detail about this incident, she could not remember any detail. In fact, she could
not even remember the year in which the incident occurred. When the prosecutor put

10 Palmer v The Queen [1998] HCA 2 – 193 CLR1; 72 ALJR 254. R v Laboucan [2010] 1 SCR 397. S
v Lotter [2007] ZAWCHC 70; 2008 (2) SACR 595 (CPD) at para 38.

to her that she cannot remember what happened, she said it is because nothing
happened. It is clear that she tried to protect the appellant.

[40]   I do not agree that the trial court’s silence on these aspects of the appellant’s
wife’s testimony constituted a misdirection. Ultimately the judgment accounted for all
the evidence on record. As it has been said ‘[n]o judgment can ever be perfect and all-
embracing, and it does not necessarily follow that, because something has not been
mentioned, therefore it has not been considered’.11

[41] It is true that in making the following remarks, the regional magistrate
misunderstood aspects of the complainant’s mother’s testimony.  In his judgment the
regional magistrate’s judgment said:
‘Die beskuldigde het nie oop kaarte met die Hof gespeel nie. Die beskuldigde is nie ‘n person
wat die Hof kan maar maklik glo wat hy sê nie, die beskuldigde is ‘n person wat ‘n ander man
se vrou snaakse goed op haar BBM stuur. Dit is ‘n buurman se vrou. Die beskuldigde sê hy is
‘n kerkman, maar hy probeer die buurman se vrou se borste vat. Watter tipe man is hierdie?
Die Hof is nie oortuig dat die beskuldigde is ‘n persoon wat die Hof kan glo nie. Sy weergawe
is nie redelik moontlik waar nie. Die beskuldigde se weergawe is total verwerp.’12

[42] Contrary to these remarks, what the complainant’s mother testified was that the
appellant tried to kiss her and not that he tried to touch her breasts. She further testified
that the appellant sent her ‘strange’ things on her email, and not on BlackBerry
Message (BBM). These remarks do not detract from the fact that on a conspectus of
all the evidence, the guilt of the appellant was proved beyond reasonable doubt.

[43] Other than maintaining that the charges were based on fabrication, the
appellant’s alibi with regard to 24 February 2012 turned out to be irrelevant. He
admitted that he tickled the complainant on two occasions, at her instance, during

11 R v Dhlumayo and Another 1948 (2) SA 677 (AD) at 706.
12 ‘The accused did not play open cards with the Court. He is a person whom the Court cannot easily
believe. The accused is a person who sends strange BBM’s to another man’s wife. It is his neighbour’s
wife. The accused says he is a churchly person, but he tries to touch his neighbour’s wife’s breasts.
What kind of man is this? The Court is convinced that the accused that the accused is not a person that
the Court can believe. His version is not reasonably possibly true. The accused’s version is totally
rejected.’ (My translation.)

2009 and 2010 (rather than 2011 and or 2012), and with the assurance that her mother
would be agreeable. But he was aware that the complainant’s mother did not want her
to be tickled. On his own version, his belief that the complainant’s mother would be
agreeable to the tickling was not reasonably possibly true. His suggestion to Ms Du
Plessis-Emmerich during a consultation that it was, in fact, the complainant who had
pulled her shirt up and her panty downward, before he tickled her, was also not
reasonably possibly true. Blaming the 11 year old complainant for his unlawful conduct
cannot be a valid defence. In addition, the fact that he continued to tickle her for a long
period (approximately an hour) despite having observed that she seemed to ‘retreat
into fantasy or a trance’ is particularly disturbing.

[44] Lastly, counsel for the appellant bemoaned the fact that the appellant was
convicted on five counts of sexual assault while the complainant testified about four
incidents only. This is not correct.   On the complainant’s version the first tickling
incident constituted both sexual assault (rubbing her breast) and rape (digital
penetration). I am satisfied that the State proved the appellant’s guilt beyond
reasonable doubt. The high court properly dismissed the appeal on conviction. This
appeal ought to be dismissed.

[45] I accordingly make the following order:

The appeal is dismissed.

________________________
C MUSI
ACTING JUDGE OF APPEAL

APPEARANCES:

For appellant:

D J Combrink
Instructed by:

Du Toit Attorneys, Pretoria
Lovius Block Attorneys, Bloemfontein

For first respondent:
J Cronje
Instructed by:

Office of the National Director of Public Prosecutions

Pretoria

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
15 July 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
ICM v The State [2022] ZASCA 108
The Supreme Court of Appeal (SCA) today dismissed an appeal against an order by the
Gauteng Division of the High Court, Pretoria (high court). The matter emanated from the
Regional Court, Pretoria (regional court), where the appellant was convicted on five counts of
sexual assault and one count of rape. He was sentenced to nine year’s imprisonment. He
appealed against the convictions and sentences to the high court. The appeal against the
convictions was dismissed but the sentence was reduced to six year’s imprisonment. Having
had his appeal against the convictions dismissed by the high court, the appellant appealed
against only the convictions to this Court.
The appellant argued that the complainant, who was 11 years old at the time of the incidents,
lied by fabricating the sexual assault and rape aspects of the incidents. The argument was
further that it was at the complainant’s mother’s instigation that the complainant concocted the
lies. In the high court the appellant submitted that the regional court erred: (i) by not applying
the cautionary rule when it evaluated the complainant’s testimony; (ii) by not considering the
testimony of a medical doctor who commented on photographs taken by the complainant’s
mother, which served as evidence of the sexual assault; and (iii) by not properly assessing the
testimonies of the aforementioned medical doctor as well as that of another medical doctor.
The high court rejected the appellant’s submissions and found that the regional court had not

misdirected itself and that it had not committed any irregularity in its evaluation of the totality
of the evidence.  It found that the regional court’s factual findings were correct.
This Court confirmed that, even though the complainant was a single witness, a court was at
liberty to convict on the testimony of a single witness, provided that the evidence was clear and
satisfactory in every material respect. With regard to the complainant’s age the legal position
is that a court that considers the evidence of a child, be satisfied that the child was a credible
and reliable witness. As with any other witness, the child witness’ testimony should be
evaluated in the light of the totality of the evidence: the rape incident was attached to broader
events which were not in dispute and the other sexual assault incidents were described with
reference to other incidents that happened on the same days which were also not in dispute.
This Court applied the established principle that the State had the onus to prove the guilt of an
accused beyond reasonable doubt. The decision to convict or acquit must have been based on
the totality of the evidence and, despite the allegations levelled by the appellant, this Court
found that it did not detract from the fact that on a conspectus of all the evidence, the guilt of
the appellant was proved beyond reasonable doubt, regardless of discrepancies in the evidence
presented by the complainant.
The SCA found that the State proved the appellant’s guilt beyond reasonable doubt and that
the high court properly dismissed the appeal. In the result, the SCA dismissed the appeal.
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