E[…] M[…] v The State, Case No A55/2023, High Court of South Africa (Western Cape Division, Cape Town), judgment delivered 18 July 2025
This judgment is reportable because it clarifies the approach an appellate court must adopt when confronted with an imperfect or partially reconstructed record of criminal proceedings. It restates, and applies to the facts, the principles in Supreme Court of Appeal and Constitutional Court authority on whether an incomplete record vitiates a conviction or sentence. In addition, it confirms the stringent application of the mandatory‐minimum sentencing regime for rape of minor children while illustrating the limited scope for appellate interference with credibility findings of trial courts.
S v Zenzile 2009 (2) SACR 407 (Western Cape High Court)
S v Chabedi 2005 (1) SACR 415 (Supreme Court of Appeal)
Collier v The State 1976 (2) SA 378 (Cape Provincial Division)
S v S 1995 (2) SACR 420 (T)
S v Schoombee and Another 2017 (2) SACR 1 (Constitutional Court)
Criminal Procedure Act 51 of 1977
Criminal Law Amendment Act 105 of 1997, section 51 and Schedule 2 (Minimum Sentences)
None expressly referenced in the judgment.
The appellant was convicted in the Caledon Regional Court on two counts of rape committed against twelve- and ten-year-old girl children. The trial court imposed life imprisonment on each count in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997 and ordered the sentences to run concurrently. On automatic appeal the appellant challenged both conviction and sentence, contending that the incompleteness of the record rendered the appeal incapable of determination, that the trial court’s credibility findings were fatally flawed, and that substantial and compelling circumstances warranted a lesser sentence.
The High Court dismissed a point in limine concerning the defective record, holding that—applying the test in S v Chabedi and S v Schoombee—the record, though imperfect, was adequate for a proper rehearing. Turning to the merits, the court found no misdirection in the trial magistrate’s acceptance of the child complainants’ evidence, corroborated by medical findings and the appellant’s positive tests for the same sexually transmitted infections found in the children. Finally, the court confirmed that no substantial and compelling circumstances existed to deviate from the statutorily ordained life sentences.
Whether the appeal could proceed on a record containing indistinct passages and a reconstruction performed without the presiding officer.
Whether the trial court erred in accepting the evidence of the two minor complainants and rejecting the appellant’s bare denial.
Whether the failure of the complainants to make prompt disclosures undermined their credibility.
Whether life imprisonment constituted an unjustly severe sentence in the circumstances.
The appellate court held that the record before it, although incomplete, was sufficient for a fair adjudication and did not prejudice the appellant. The convictions on both counts of rape were supported by credible, corroborated evidence and revealed no material misdirection. No substantial and compelling circumstances were present; consequently, the life sentences, ordered to run concurrently, were confirmed.
The incidents occurred in 2019 at the home of the first complainant AGK’s grandmother. AGK, then twelve, was asleep alongside her intoxicated grandmother when the appellant, a family acquaintance, covered AGK’s mouth, removed her clothing, and penetrated her vaginally. He stopped only when an aunt knocked at the door, after which he handed AGK money.
On a separate night both AGK and her friend LD, aged ten, slept on a couch in the same house. LD was carried to the appellant’s bedroom, where he removed her tights and underwear and raped her. LD’s cries alerted AGK, who entered the room but was chased away. After the incident LD returned to the couch and later disclosed the assault to an adult relative.
Medical examinations confirmed recent genital penetration in both children, and each tested positive for syphilis and HIV. Subsequent tests revealed the appellant carried the same infections. The appellant offered only a bare denial.
The court had to decide, first, whether the appeal could be entertained on the existing record given multiple “indistinct” notations and an informal reconstruction. Secondly, it had to determine whether the trial magistrate’s credibility findings were sustainable, particularly in light of delayed reporting by the complainants and alleged contradictions regarding the frequency of intercourse. Thirdly, it had to assess whether the statutory minimum sentence of life imprisonment ought to be upheld in the absence of substantial and compelling circumstances.
In three detailed paragraphs the court revisited the jurisprudence on incomplete records. It emphasised that perfection is not required; adequacy for a just decision suffices. Re‐reading the transcribed evidence alongside the magistrate’s unchallenged narrative summary persuaded the court that every material aspect of the trial was available for scrutiny. The appellant therefore suffered no prejudice.
Turning to conviction, the court restated the limited scope of appellate interference with fact-findings, citing S v Zenzile and S v Chabedi. It found the child witnesses’ evidence clear, consistent, and corroborated by medical and scientific proof, and reasoned that their hesitation to report was understandable given their ages, fear, and the appellant’s monetary inducements. By contrast, the appellant’s denial was inherently improbable in the face of matching sexually transmitted infections and the absence of any alternative explanation.
On sentence, the court reiterated that life imprisonment is prescribed for rape of minors unless substantial and compelling reasons exist. The appellant’s personal circumstances—thirty-three years old, single parent, first offender, and lengthy pre-trial incarceration—did not outweigh the gravity of the offences, the vulnerability of the victims, and the enduring harm caused. Retribution, deterrence, and the protection of children justified the sentence imposed.
The appeal against conviction and sentence was dismissed. The convictions on both counts of rape and the concurrent life sentences imposed by the Regional Court were affirmed.
An appeal court may rely on an incomplete or reconstructed record provided it enables a just determination of all issues and does not prejudice the accused.
Credibility findings of trial courts, especially regarding child witnesses in sexual-offence cases, stand unless tainted by demonstrable misdirection.
Under section 51(1) of the Criminal Law Amendment Act 105 of 1997, rape of a child under sixteen attracts life imprisonment unless substantial and compelling circumstances, objectively established, justify departure. The offender’s personal circumstances seldom outweigh the seriousness of the offence and the interests of society.