E[…] M[…] v The State
Case No A55/2023, High Court of South Africa, Western Cape Division, Cape Town
Judgment delivered 18 July 2025 (Van Leeve AJ; Ndita J concurring)
This judgment is reportable because it illuminates the proper approach an appellate court must adopt where the record of the trial proceedings is materially incomplete. The court synthesises and applies the authoritative trilogy of South African cases—S v Chabedi, S v Zenzile, and S v Schoombee—that govern reconstruction of defective records, thereby providing clear guidance for future matters involving missing or indistinct portions of evidence.
Further, the judgment re-affirms the constitutional obligations on trial courts to ensure that the rights of child complainants in rape cases are protected, while also balancing the accused’s fair-trial rights. Its articulation of when life imprisonment should stand notwithstanding an imperfect record elevates its precedential value.
Finally, the decision traverses the principles governing minimum sentences under section 51 of the Criminal Law Amendment Act 105 of 1997 and clarifies the threshold for “substantial and compelling circumstances,” rendering it a significant sentencing authority.
S v Zenzile 2009 (2) South African Criminal Law Reports 407 (Western Cape Division)
S v Chabedi 2005 (1) South African Criminal Law Reports 415 (Supreme Court of Appeal)
S v Schoombee and Another 2017 (2) South African Criminal Law Reports 1 (Constitutional Court)
S v Collier 1976 (2) South African Law Reports 378 (Cape Provincial Division)
S v S 1995 (2) South African Criminal Law Reports 420 (Transvaal Provincial Division)
Criminal Law Amendment Act 105 of 1997, section 51 and Schedule 2
Criminal Procedure Act 51 of 1977, section 309(1)(a)
No specific Uniform Rules of Court were referred to in the judgment.
The appellant was convicted in the Caledon Regional Court on two counts of raping girl children aged twelve and ten respectively. He received life imprisonment on each count, the sentences to run concurrently. On automatic appeal he contended that the record was too defective to permit a fair adjudication, that the trial court misdirected itself on credibility, and that life sentences were inappropriately imposed in the absence of aggravating features beyond the sexual offences themselves.
The High Court held that, although the record contained gaps and several “inaudible” notations, the material evidence was available through a comprehensive magistrate’s summary which neither party disputed. Applying S v Chabedi, the court concluded that the defects were not so serious as to preclude a proper rehearing.
On the merits the court found no basis to overturn the credibility findings of the trial court. Medical corroboration linked the appellant to the offences through matching sexually transmitted infections, and the children’s testimonies were mutually reinforcing. With regard to sentence, the court confirmed that no substantial or compelling circumstances were present and upheld the concurrent life sentences.
Whether the incompleteness of the record rendered the appeal unripe for hearing and required remittal for reconstruction.
Whether the trial court misdirected itself in accepting the complainants’ evidence and rejecting the appellant’s denial.
Whether life imprisonment was justified given the statutory minimum and the appellant’s personal circumstances.
The appeal on both conviction and sentence was dismissed. The court held that the record, though imperfect, was adequate for a full reconsideration; the findings of fact were free from material misdirection; and no circumstances justified a departure from the prescribed life sentences.
The two complainants, AGK (born 18 February 2009) and LD (born 6 April 2009), frequently spent nights at the house of AGK’s grandmother, where the appellant also resided. On one occasion in 2019 AGK awoke to find the appellant covering her mouth, removing her clothing, and penetrating her vaginally while her intoxicated grandmother slept beside her. He stopped only when interrupted by AGK’s aunt and offered the child money for silence.
LD recounted that, while sleeping on the couch next to AGK, she was carried to the appellant’s bedroom, where he removed her tights and panties and raped her. She called out to AGK, who briefly entered the room but was chased away by the appellant. The children did not immediately disclose the assaults, a reaction the court ultimately ascribed to fear and their vulnerable ages.
The matter surfaced after LD became ill and tested positive for syphilis and HIV. Medical examinations confirmed both complainants had been sexually penetrated, and the appellant himself also tested positive for the same infections. The appellant offered a bare denial at trial, calling no corroborative witnesses.
The first question was procedural: could an appellate court fairly decide the matter where parts of the record were rendered indecipherable, the trial magistrate had retired, and attempts at mechanical reconstruction were flawed?
Substantively, the court had to determine whether the trial magistrate’s credibility assessments were vitiated by error, particularly in reconciling the children’s evidence with the medical findings and their delayed disclosure.
Finally, the court was required to decide whether the statutory life sentences ought to be set aside on the basis that the appellant’s clean record, time awaiting trial, and personal circumstances amounted to substantial and compelling reasons for leniency.
Van Leeve AJ began by restating the principle from S v Chabedi that an incomplete record justifies setting aside a conviction only when the gaps are so fundamental that they impede a fair rehearing. Here, even though individual words were missing, the narrative of each witness was intact through the magistrate’s unchallenged summary. The court stressed that perfection is not the standard; adequacy is.
Turning to credibility, the court found no internal contradictions of substance in the complainants’ testimonies. The slight discrepancy identified by the defence—whether LD experienced repeated or single penetration—was immaterial because the statutory definition of rape was satisfied by a single act. The corroborative impact of matching sexually transmitted infections strongly implicated the appellant and reinforced the reliability of the children’s accounts.
On sentence, the court revisited the constitutional proportionality enquiry but concluded that the gravity of raping two pre-pubescent girls, coupled with the appellant’s abuse of a position of trust, outweighed the mitigating considerations. The delay in trial and lack of previous convictions were acknowledged yet found insufficient to displace the legislated norm of life imprisonment in the absence of truly exceptional circumstances.
The court dismissed the appeal in its entirety. Both convictions and the concurrent sentences of life imprisonment were confirmed. No order was made as to costs because criminal appeals do not ordinarily attract them.
An appellate court may rely on an imperfect record provided the material evidence is sufficiently contained therein; the test is functional adequacy, not verbatim perfection.
The credibility of child complainants in sexual-offence trials must be gauged in light of their developmental stage and the psychological barriers to prompt disclosure, a factor the court may legitimately consider when explaining delays in reporting.
Under the Criminal Law Amendment Act 105 of 1997 the prescribed sentence of life imprisonment for rape of children under sixteen may be departed from only upon demonstration of truly substantial and compelling circumstances; personal factors such as a clean record and moderate period of pre-trial incarceration rarely suffice in cases involving multiple rapes of minors.