Ngqengqa v S

The appellant was convicted in a lower court of raping and kidnapping a ten-year-old minor. The complainant testified that in January 2019, while walking in the afternoon to find friends, a person snatched her from the street, covered her face and mouth with a cloth, and dragged her into a shack in an informal settlement. The perpetrator undressed her, rubbed lotion on her vagina, and raped her while armed with a knife. He threatened to kill her and her family if she reported the incident. After a few days, the complainant confided in her aunt, then her foster mother, and later reported the matter to the police after attending a youth programme at the police station. A forensic nurse confirmed vaginal penetration by a blunt object. The complainant knew the appellant by name (Uwe) as an 'odd' person in the community. The appellant did not testify or call any witnesses in his defence.

• Whether the trial court misdirected itself in convicting the appellant of kidnapping where the alleged kidnapping was inextricably linked to the rape
• Whether the complainant's evidence as a young single witness was sufficient to sustain a conviction for rape
• Whether the charges were defective for lack of specificity and particularity
• Whether the appellant's identification was correctly determined
• Whether the trial court correctly evaluated the evidence in light of the abolition of the cautionary rule in sexual assault cases

1. The appeal against conviction and sentence on the charge of kidnapping (count 1) is upheld and set aside. 2. The appeal against conviction on the charge of rape (count 2) is dismissed. 3. The conviction and sentence imposed on the rape charge (count 2) are confirmed.

Where a complainant in a sexual assault case gives evidence that is corroborated in material respects by other witnesses, she is not a single witness. The so-called cautionary rule in sexual assault cases no longer finds direct application in South African law. An accused who elects not to testify in the face of incriminating evidence runs the risk that the prosecution's case may be sufficient to prove guilt beyond reasonable doubt absent any rebuttal. A court is not expected to search for speculative explanations for conduct that is on its face incriminating.

The court observed that the charge of kidnapping, other than lacking intention, may also have amounted to an impermissible splitting of charges. The court also noted that time was not of the essence concerning the rape charge, and the particulars as formulated were reasonably sufficient to inform the appellant of the nature of the charge.

The judgment confirms the definitive abolition of the cautionary rule in sexual assault cases in South African law, following S v M 1999 (2) SACR 548 (A). It reinforces the principle that an accused's silence in the face of incriminating evidence carries consequences and that corroboration from multiple witnesses removes the need for a single-witness cautionary approach. It also clarifies the distinction between kidnapping and restraint incidental to rape, holding that where the deprivation of liberty is inextricably linked to the commission of rape with no separate intent to kidnap, a conviction for kidnapping is a misdirection.