THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 957/2022
In the matter between:
THEMBA JUSTICE XIMBA
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Ximba v The State (957/2022) [2023] ZASCA 6 (19 January
2024)
Coram:
NICHOLLS,
MOTHLE,
MABINDLA-BOQWANA
and
MEYER JJA and KATHREE-SETILOANE AJA
Heard:
02 November 2023
Delivered:
19 January 2024
Summary:
Criminal Law – Rape conviction – whether finding of the trial
court correct – held – the complainant was brutally raped – the appellant was the
perpetrator – the appellant’s bare denial is not reasonably possibly true.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Adams J and
Alberts AJ, sitting as a court of appeal):
The appeal against conviction is dismissed

JUDGMENT

Nicholls JA (Mothle, Mabindla-Boqwana and Meyer JJA and Kathree-
Setiloane AJA concurring):

[1] The appellant was charged with the rape of an 18 year old woman during the
period September and October 2015. He was found guilty by the Regional Court,
Germiston and sentenced to life imprisonment. On 19 October 2018, the appellant’s
appeal against conviction and sentence was dismissed by the Gauteng Division of
the High Court, Johannesburg (the high court). Special leave to appeal was
subsequently granted by this Court on both conviction and sentence. The appellant
has withdrawn his appeal against sentence and, accordingly, all that is before this
Court is an appeal against conviction.

[2] There is no dispute that the complainant was brutally raped. The question is
whether the appellant was the perpetrator, as alleged by the complainant. The
appellant did not provide a plea explanation in terms of s 115 of the Criminal
Procedure Act 51 of 1977. Instead, he elected to remain silent. As the evidence
proceeded, it became apparent that his defence was a bare denial.

[3] The complainant is a vulnerable young woman. She was abandoned at birth
and has lived in shelters and foster homes, in the Durban area, all her life. In 2015,
she was living with her new foster mother, Ms Ndondwe Mzaca. Living conditions
were not ideal. Ms Mzaca was unemployed and the family had to share one room.
During this period Ms Mzaca was visited by her friend, Ms Nthandazo Ndungane,
who resided in Leondale, Johannesburg area. Ms Ndungane indicated that she
needed a domestic worker at her home. It was agreed that the complainant should be
sent to live with Ms Ndungane, to assist her with domestic work. The complainant
did not meet Ms Ndungane while she was in Durban, nor was she consulted about
this arrangement.

[4] In September 2015, as a result of the agreement between Ms Mzaca and
Ms Ndungane, the complainant boarded a bus for Johannesburg and was sent to live
with Ms Ndungane. Ms Ndungane had a three bedroomed house and the complainant
had her own bedroom. The appellant was Ms Ndungane’s partner and the father of
her two year old child who, at the time, resided in Zola with family members. The
appellant resided in Vosloorus and would sleep over at Ms Ndungane’s residence
from time to time. It is in dispute whether he also visited during the week as alleged
by the complainant or only over weekends as contended by the appellant and Ms
Ndungane.

[5] The complainant gave evidence of the several times that she was raped by the
appellant. She said that she was introduced to the appellant soon after she had arrived
in Leondale. One night when Ms Ndungane was in Zola with her child, the appellant
came into her bedroom and raped her. When Ms Ndungane returned the following
day, the complainant did not inform her of what had transpired as they were not well

acquainted and the complainant was scared to inform her. In October 2015, the
complainant returned to Durban. Although she did not tell Ms Mzaca about the rape,
she informed her that she did not want to return to Leondale. Her request was
brushed aside and Ms Mzaca told her that her bus ticket to Gauteng had been
purchased and she had no choice but to return.

[6] On the complainant’s arrival in Gauteng she was again met by Ms Ndungane.
One night, the appellant came into her room while she was sleeping and started to
undress her. When she resisted, he slapped her. Ms Ndungane came into the room
while the appellant was on top of the complainant and told her that she must co-
operate with the appellant. He then proceeded to rape her.

[7] After that incident, the complainant said that she became incontinent and was
taken by Ms Ndungane to Chris Hani Baragwanath Hospital (Baragwanath
Hospital). Three days after that, she ‘fainted’ and was taken back to Baragwanath
hospital, where she was admitted. She was advised by the hospital staff that she had
a problem with her womb. This was a pre-existing condition. The complainant did
not inform the medical staff that she had been raped. Ms Ndungane and the appellant
fetched her once she had been discharged.

[8] The complainant testified that on the same evening and once Ms Ndungane
had left for Zola, the appellant was visited by four friends at Ms Ndungane’s house.
The appellant came into the complainant’s bedroom and raped her. After he had
wiped her vagina with a towel, he then let his friends ‘take over’. When she started
screaming, the appellant injected her in the buttocks. She began to feel dizzy and no
longer put up any resistance. The first friend used a condom and he raped her; and
the second man also raped her. When the third friend started raping her, she tried to

resist. The appellant picked up a stick that was being used to block off the door, and
hit her on the head. She was again injected and the rape proceeded. The fourth man
raped her.

[9] After the gang rape, the complainant said she had sent a text message to
Captain Dube, a Durban based female police officer, who was the investigating
officer in a case where the complainant had been gang raped in the Durban area a
year earlier. Captain Dube responded that she would send police in Johannesburg to
assist the complainant. When the Johannesburg police telephoned the complainant,
she was unable to answer because the appellant and his friends were still present.
They telephoned the complainant again, later, to request directions to the Leondale
residence, which she was unable to provide.

[10] A few days later, the complainant ‘passed out’. She was taken to Baragwanath
Hospital, where she was admitted. Whilst in hospital, she communicated with
Captain Dube, who promised to fetch her.  She asked one of the sisters at the hospital
to give Captain Dube directions. However, before Captain Dube fetched her from
the hospital, the appellant and Ms Ndungane demanded her discharge and took her
back to the Leondale residence. She did not tell Ms Ndungane that Captain Dube
was coming to fetch her, as she did not want to alert her.

[11] According to the complainant, the three of them arrived at the Leondale
residence at 11h00. Ms Ndungane went to work, and the appellant remained at the
house. At around 14h00, the appellant began watching a pornographic video and
insisted that she watch the video with him. After that, he instructed her to go into her
bedroom. First, he inserted his penis into her vagina and then instructed her to

perform oral sex on him. Thereafter he told her to wash herself as she had been
bleeding.

[12] On the date of her appointment for a medical check-up, Ms Ndungane took
the complainant to Natalspruit Hospital and then went on to work. The complainant
contacted Captain Dube and requested that she come and fetch her from the hospital.
As Captain Dube did not know the way to Natalspruit Hospital, the complainant
gave her the name of a mall within the vicinity of the hospital. Captain Dube,
accompanied by Captain Muvango, collected her from the mall and drove her to
Durban where she was put in a place of safety. A few days later, she was taken to a
district surgeon, Dr Savvas Atholiades (Dr Atholiades). A statement was taken from
the complainant at the Cato Manor Police Station, KwaZulu-Natal, by Captain
Muvango. The statement made by the complainant does not differ in any material
respect from her evidence.

[13] From her testimony, it seems that the complainant felt that she had no-one to
turn to about her ordeal. Ms Ndungane telephoned Ms Mzaca, the complainant’s
foster mother in Durban, to complain that the complainant was not obeying the rules.
The complainant was told by both Ms Mzaca and Ms Ndungane to be obedient.
Captain Dube was the only person whom she trusted sufficiently to confide in about
the multiple rapes.

[14] Captain Dube corroborated the complaint’s version that she had sent her
various text messages informing her that she had been raped by the appellant. The
first message from the complainant was to the effect that she was in Johannesburg,
had a problem and wanted to communicate with Captain Dube. Because she was too
busy, Captain Dube initially ignored the messages. Later, Captain Dube received a

message from the complainant in which she stated that she had been raped by the
boyfriend of the “aunty” (Ms Ndungane). Captain Dube advised the complainant to
inform the aunt of what was happening. The complainant told her that when she
telephoned the aunt, she merely said that she must leave her alone. It is unclear
whether this was a reference to Ms Mzaca or Ms Ndungane.

[15] On another occasion, the complainant informed Captain Dube that she had
been gang raped by the appellant and three other men. Captain Dube said that she
had telephoned the police in Johannesburg to assist the complainant. However,
because the complainant had given them the incorrect address, they were unable to
find the house. The complainant had also informed Captain Dube that she had been
assaulted by the appellant who had injured her arm during the course of the rape and
she had been admitted to Baragwanath Hospital. She begged Captain Dube to fetch
her from Johannesburg where she was being sexually abused. When Captain Dube
telephoned the complainant the following day, the call was answered by a person
who said that she was a nurse and that the complainant was in ‘a coma’.

[16] Captain Dube then made arrangements to go to Johannesburg with a
colleague, Captain Muvango, to fetch the complainant and bring her back to Durban.
When she telephoned the complainant to tell her that they were on their way, the
complainant told her that she had been discharged by the appellant and Ms
Ndungane. Because she was unable to provide them with her home address, they
collected her at the Natalspruit Mall. On 23 October 2015, Captain Dube and Captain
Muvango drove with the complainant to Durban, where she was placed in a shelter
for abused women.

[17] Captain Dube made a statement to Captain Muvango once they were in
Durban. This statement was made with the aid of Captain Dube’s cell phone records
and was thus a more  accurate reflection of the dates and times of calls and text
messages that she received from the complainant. The first call was on 13 October
2015. The next day, Captain Dube received a text message asking why she had not
responded as the complainant had a problem. Further calls and/or text messages were
received between 15 and 16 October 2015. On 16 October 2015, the complainant
sent Captain Dube text messages, at about 16h00 and 23h00, complaining she had
been raped. On 22 October 2015, Captain Dube received a text message from the
complainant asking to be taken to Durban and that she could be collected at
Natalspruit Hospital where she had an appointment. She was finally collected from
the Natalspruit Mall, at 12h00 on 23 October 2015, and taken to Durban.

[18] That the complainant had been raped was confirmed by Dr Atholiades, who
examined her on 26 October 2015, and completed the J88 form. His extensive
experience in examining gynaecological patients and rape and trauma victims was
not challenged. On examination of the complainant, he found extensive swelling and
bruising of the vaginal area: the frenulum of the clitoris was swollen, the labia
minora was swollen; the cervix was swollen, but there was no bleeding or discharge.
The hymen was so swollen that it was closed. The opening is usually measured in
millimetres with a ruler. However, in this case there was no opening at all because
of the swelling due to trauma of the alleged sexual assault. The digital and rectal
examination did not support nor refute the allegation of anal penetration.

[19] Dr Atholiades could not determine what was used to penetrate the
complainant. Nor was he able to determine exactly when the injuries occurred,
except to say they were fresh injuries in keeping with a recent sexual assault. This

could have occurred three to five days before the examination; however, in his
opinion it was definitely not a year ago. Dr Atholiades stated that the injuries were,
in all probability, as a result of the alleged rape on 21 October 2015. When asked, in
cross examination, whether it was possible that the complainant had had consensual
sex, he responded that he did not think it appropriate to ask the complainant that
question, ‘because of the trauma in her genitalia, so much bruising and swelling and
the tear’.

[20] The appellant denied ever having raped the complainant. In fact, he contended
that he was never alone with her on any occasion. He testified that he lived 20
minutes away from Ms Ndungane’s home and spoke to her daily on the phone. When
the complainant was living with Ms Ndungane during September and October 2015,
he was adamant that he only visited Ms Ndungane over weekends, and public
holidays. He also recalled that he only ever came on Saturdays, not Fridays. It was
on these occasions that he would see the complainant. He never accompanied her to
hospital but was aware of her attending Natalspruit Hospital. On the day she was
fetched by Captain Dube, he stated that he was asked by Ms Ndungane to check on
the complainant at the hospital. When he got there he found Ms Ndungane outside
the hospital. Ms Ndungane told him that the hospital had informed her that they had
no record of the complainant having been there.

[21] Curiously, the appellant testified that he first saw the complainant in 2014,
when she visited Ms Ndungane with her mother and younger brother. This was not
a version put to the complainant or supported by Ms Ndungane, who said that the
first time she met the complainant was in 2016 when she fetched her from the
Germiston bus rank. She later changed this to 2015.

[22] The appellant’s version that he was never alone with the complainant, was
supported by Ms Ndungane. She testified that she had been in a relationship with the
appellant for nine years and that he had never once visited her on a week day. He
would always inform her telephonically beforehand that he was coming. Ms
Ndungane was adamant that she never arrived home to find the appellant with the
complainant and at no point were the complainant and the appellant left alone in the
house. It was put to the complainant in cross examination that the appellant only
visited on two occasions, and only at night on those two occasions. This was not the
evidence of either the appellant or Ms Ndungane, who said the appellant was present
over three weekends during the period that the complainant was working for her.
Ms Ndungane’s memory as to exactly when the appellant visited cannot be
considered to be reliable in view of the fact that when she gave her evidence in
November 2017, she could not properly recall whether these events occurred in 2015
or 2016.

[23] It was accepted by both the appellant and Ms Ndungane that the complainant
had no friends in Gauteng and knew no-one. It seems that although she was 17 or 18
years of age at the time, the complainant looked very young for her age. The
appellant referred to her as ‘the child’ while Ms Ndungane said she was surprised to
find that she was so young and wanted to arrange schooling for her. By the time she
testified, the complainant had passed her matric. She was clearly an intelligent young
woman.

[24] Ms Ndungane described their relationship as being of a mother and child in
the early stages. The complainant was clearly desperate for a mother figure and
originally thought that she had found one in Ms Ndungane. Letters of love and
appreciation were written to Ms Ndungane. However, as testified to by both the

appellant and Ms Ndungane, this relationship soon soured. Later, the complainant’s
behaviour towards Ms Ndungane changed to such an extent that she refused to come
out of her bedroom and would only communicate with her by Whatsapp messages.
Ms Ndungane attributed this to her refusal to give her consent to allow the
complainant to be operated on at a hospital in Johannesburg.

[25] The trial court found that Ms Ndungane was a biased witness and that her
version that the appellant and the complainant were never alone together fell to be
rejected. The high court, although it did not deal directly with the evidence of
Ms Ndungane, rejected the appellant’s version as supported by Ms Ndungane. The
irrefutable fact remains that the only truly independent witnesses were Captain Dube
and Dr Atholiades, the district surgeon. Captain Dube’s evidence, as the person to
whom the complainant made the first report of the rape, was consistent with the
version of the complainant that she had been repeatedly raped by the appellant, and
that on one occasion she had been gang raped by the appellant and his friends. Dr
Atholiades found evidence of a vicious sexual assault which was consistent with the
allegations made by the complainant.

[26] Invariably, in any rape matter, the complainant will be a single witness. There
is no formula for assessing the credibility of a single witness. A trial court should
consider the evidence in its totality and should determine whether the truth has been
told, despite any shortcomings and contradictions.1 As has been repeatedly stated by
this Court, 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

1 S v Sauls 1981(3) SA 172 (A) at 180F.

improbabilities on both sides and, having done so, decide whether the balance
weighs so heavily in favour of the State as to exclude any reasonable doubt about
the accused’s guilt.2 In other words, what is required is credible evidence which
renders the complainant’s version more likely that the sexual intercourse took place
without her consent, and the appellant’s version less likely that it did not.

[27] Adopting this approach and considering the evidence holistically, as every
court is enjoined to do, the undisputed facts reveal the following: The complainant
knew no-one in Johannesburg. Initially, she was loving and communicative with
Ms Ndungane, but this changed to such an extent that in the end she would go into
her room and only communicate with Ms Ndungane by Whatsapp messages. When
she went back to Durban she told her foster mother, Ms Mzaca, that she did not want
to return to Gauteng to live with Ms Ndungane. The complainant informed Captain
Dube that she was being repeatedly sexually assaulted by the appellant. Captain
Dube fetched her from Johannesburg and placed her in a place of safety in Durban.
From there and a few days later, the complainant was seen by a district surgeon who
found evidence of a violent rape having taken place in the previous few days.

[28] Despite there being some discrepancies in respect of dates and times, there
can be no doubt that the complainant informed Captain Dube that she had been raped
numerous times by the appellant. The report to Captain Dube supports the
consistency of the complainant’s version and therefore her credibility.3 Her
subsequent behaviour of withdrawing, refusing to come out of her bedroom and only
communicating with Ms Ndungane by Whatsapp messages is consistent with her
emotional turmoil following sexual assaults in the home of Ms Ndungane. To find

2 S v Chabalala 2003(1) SACR 134 (SCA) para 15.
3 S v Hammond 2004 (2) SACR 303 (SCA); [2004] 4 All SA 5 (SCA).

otherwise, would mean that the complainant was raped repeatedly by a stranger, or
another person known to her. She then, for unknown reasons, decided to exonerate
the true rapist and blame the appellant. There is no suggestion of the complainant
even being acquainted with other people in Gauteng. Nor is there evidence that she
had a motive to falsely accuse the appellant.

[29] On these facts, I am led to the ineluctable conclusion that the complainant was
brutally raped, and that the appellant was the perpetrator thereof. The appellant’s
bare denial is not reasonably possibly true.

[30] The following order is made:
The appeal against conviction is dismissed.

__________________________
C E HEATON NICHOLLS
JUDGE OF APPEAL

Appearances

For the appellant:

R du Plessis
Instructed by:

Bloemfontein Justice Centre, Bloemfontein

For the respondent:

J Masina
Instructed by:

Director of Public Prosecutions, Bloemfontein

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:

19 January 2024
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
Ximba v The State (957/2022) [2023] ZASCA 6 (19 January 2024)
Today the Supreme Court of Appeal (SCA) handed down a judgment dismissing an appeal against the
decision of the Gauteng Division of the High Court, Johannesburg (the high court).

The issue before the SCA was whether the appellant was the perpetrator, as alleged by the
complainant, and whether the trial court was correct to have convicted the appellant on the rape charges
against him.

The complainant, an 18-year-old woman, is a vulnerable young woman who had been abandoned at
birth and sexually abused from an early age. During September and October 2015 she was sent to
Johannesburg from Durban to do domestic work for a friend of her foster mother, Ms N. The appellant
was the partner of Ms N, and father of her child. Over this period the complainant alleged she was raped
by the appellant and also gang raped by the appellant and his friends on one occasion.  The complainant
contacted a female captain from a police station in Durban whom she informed about the rapes. The
police captain finally fetched her from Johannesburg and took her to a place of safety in Durban. A few
days later she was examined by the district surgeon who confirmed that the complainant had been the
victim of a brutal sexual assault. He also confirmed that the injuries were recent and that the extent of
the injuries ruled out the possibility of consent. The complainant laid charges and the appellant was
arrested for rape.

During the trial, the appellant denied that he had raped the complainant and contended that he was
never alone with the complainant. The appellant’s evidence was supported by Ms N. They both noted
that the complainant did not have any friends or acquaintances in Johannesburg. The trial court found
that Ms N was a biased witness and that her version that the appellant and the complainant were never
alone together fell to be rejected. Following this, the appellant was convicted in the regional court
(Germiston) on the charges of rape and was sentenced to life imprisonment. The matter was appealed
to high court which also rejected the version of the appellant and confirmed the conviction and sentence
of the trial court. The appellant was granted special leave to appeal at the SCA. The appellant withdrew
the appeal against sentence and therefore the appeal is against conviction only.

The SCA held that, in rape matters, the complainant is usually a single witness. The SCA held that 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, decide whether the
balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the
accused’s guilt.

Adopting this approach and considering the evidence holistically, the SCA took into account the
following undisputed facts. The complainant knew no-one in Johannesburg. Initially, she was loving and
communicative with Ms N but this changed to such an extent that in the end she would go into her room
and only communicate with Ms N by WhatsApp messages. The first time that she went back to Durban

she told her foster mother that she did not want to return to Gauteng to live with Ms N. This request was
ignored. The complainant informed the captain that she was being repeatedly raped by the appellant.
The captain fetched her from Johannesburg and placed her in a place of safety in Durban. A few days
later, the complainant was seen by a district surgeon who found evidence of a violent rape having taken
place in the previous few days.

The SCA held that the reports that the complainant made to the captain supported the consistency of
the version of the complainant, and thus her credibility. The district surgeon corroborated the
complainant’s version that she had been the victim of a violent sexual assault. There is no suggestion
that the complainant was acquainted with people in Gauteng other than Ms N and her family and the
appellant.

On the above facts the SCA held that the complainant was brutally raped, and that the appellant was
the perpetrator thereof. The appellant’s bare denial was not reasonably possibly true. As a result, the
SCA dismissed the appeal against the conviction.
~~~~ends~~~~