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P.M v S (A103/2020) [2023] ZAGPJHC 700 (14 June 2023)

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Criminal Law
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Brief Summary

Criminal Law — Rape and Sexual Assault — Appeal against conviction and sentence — Appellant convicted of rape and sexual assault of his stepdaughter — Appellant's appeal based on alleged errors in accepting the State's evidence and misdirection in sentencing — Trial court found the complainant's testimony credible and corroborated by independent witnesses — Appellant's version rejected as improbable — No material misdirection found in trial court's evaluation of evidence or sentencing discretion — Appeal dismissed.

Comprehensive Summary

Summary of Judgment


Introduction


The matter concerned an appeal to the High Court of South Africa, Gauteng Local Division, Johannesburg against both conviction and sentence imposed by a regional court. The appellant had been convicted on two counts arising from sexual offences committed against a minor complainant, and he received life imprisonment on the rape count and five years’ imprisonment on the sexual assault count.


The parties were P.M (the appellant/accused at trial) and the State (respondent). The complainant was a fourteen-year-old girl who was the appellant’s stepdaughter. The appeal proceeded on the basis that the appellant had an automatic right of appeal, given the sentence imposed.


Procedurally, the appeal included an initial interlocutory issue: the appellant sought condonation for the late filing of heads of argument. The delay was explained with reference to difficulties relating to the record, and the State did not oppose the request. The High Court granted condonation in the interests of justice, after which it determined the merits of the appeal against conviction and sentence.


The general subject-matter of the dispute was whether the trial court had correctly evaluated the evidence (including the complainant’s evidence as a single witness on aspects) and whether the trial court had properly applied sentencing principles, including the approach to prescribed minimum sentences and the existence (or not) of substantial and compelling circumstances warranting deviation from the prescribed sentence.


Material Facts


The material facts accepted and relied upon by the court concerned two incidents occurring while the complainant lived in the same home as the appellant. The complainant was the appellant’s stepdaughter, and the appellant was also the father of the complainant’s younger sibling. These background facts were treated as part of the context within which the offences occurred.


In October 2017, the complainant reported that the appellant touched her breasts. The complainant considered this conduct inappropriate and reported it to her mother. The mother indicated that she had spoken to the appellant and reprimanded him. The incident was not reported to the police at that time. This incident formed the factual basis for the sexual assault charge.


On 1 December 2017, the complainant was at home washing dishes when she heard the baby crying. She went into the room where the baby was sleeping on one bed and the appellant was on another bed closer to the door. As she passed the appellant’s bed, the appellant stood up, closed the door, and threw her onto the bed. The appellant pressed the complainant’s breast with one hand and, with the other hand, inserted his finger into her vagina, doing so twice. The complainant was wearing pyjamas (a three-quarter trouser and top), and the appellant inserted his hand inside the trouser to effect the penetration.


The complainant cried loudly and uncontrollably. A neighbour became aware of her distress and intervened. When the complainant could not or would not explain the reason for her crying, the neighbour contacted the complainant’s mother telephonically and handed the phone to the complainant. The complainant told her mother, in substance, that “he has done it again”, which prompted the mother to treat the report as serious and led to the matter being reported to the police and charges being laid.


At trial, the State led evidence from the complainant, her mother, the neighbour, and a doctor. The appellant testified in his own defence and denied the sexual assault and rape, asserting that he merely hugged the complainant and that he was leaving to return to KwaZulu-Natal. He also described leaving the home after being confronted and going to a tavern, returning later that night.


The High Court’s summary of the trial court’s approach reflects that the complainant’s evidence on the rape count was assessed alongside a medical examination report supporting her account, and that an independent witness (the neighbour) provided support for the immediacy and seriousness of the complainant’s distress and the contemporaneous report to the mother. The appellant’s version that the complainant had been influenced by her mother to falsely implicate him was found to be unsupported by the facts.


Legal Issues


The appeal raised central questions about the correctness of the convictions and the appropriateness of the sentences. The conviction-related issues turned on whether the trial court had erred in accepting the State’s version, whether it had properly applied caution in evaluating the complainant’s evidence (including the single-witness caution), and whether the appellant’s version ought to have been accepted as reasonably possibly true.


These questions primarily concerned the application of legal standards to factual findings, including the limited basis on which a court of appeal may interfere with factual and credibility findings made by a trial court. The appeal required consideration of whether there had been a misdirection in the trial court’s evaluation of evidence and whether the appellant had shown adequate grounds for appellate interference.


On sentence, the issues concerned whether the trial court committed a material misdirection in imposing the prescribed minimum sentence of life imprisonment for rape and a five-year sentence for sexual assault, and whether the appellant’s personal circumstances (including time spent in custody awaiting trial, employment, dependants, and absence of prior convictions) constituted substantial and compelling circumstances justifying deviation from the prescribed sentence. This aspect involved the application of established appellate principles regarding interference with sentence, as well as proportionality and the minimum-sentence framework.


Court’s Reasoning


On conviction, the High Court emphasised the limited scope for an appellate court to interfere with a trial court’s factual findings and its acceptance of witness testimony. The court applied the principle that, absent misdirection, the trial court’s conclusions are presumed correct and will be disturbed only in exceptional circumstances. In this regard, the court relied on the approach described in S v Francis 1991 (1) SACR 198 (A), which underscores the trial court’s advantage in observing witnesses and the corresponding restraint required on appeal.


The High Court further addressed the complaint that the trial court accepted the complainant’s evidence without due caution. It found that the trial court had been mindful of the cautionary rules applicable to single-witness evidence. The High Court noted that, in relation to the rape count, the complainant’s account was not assessed in isolation but was considered together with the medical examination report that supported her narration. The court also treated the neighbour’s evidence as important contextual support: the neighbour’s intervention when the complainant was crying hysterically and the subsequent contact with the complainant’s mother corroborated the immediacy of the complaint and the complainant’s distress.


In evaluating the appellant’s denial, the High Court referred to the approach in Shackell v S [2001] 4 All SA 279 (SCA), namely that an accused person’s version need not be accepted in every detail, but if it is reasonably possibly true in substance, it must be accepted. The court considered the inherent probabilities and concluded that the appellant’s explanations—particularly the assertion that he only hugged the complainant and the allegation that the complainant was influenced by her mother to fabricate the allegations—were unsupported and were found to be so improbable that they could not reasonably possibly be true. On this basis, the High Court found no misdirection in the trial court’s acceptance of the State’s evidence and rejection of the defence version.


On sentence, the High Court proceeded from the principle that appellate interference is warranted only where there is a material misdirection by the sentencing court, or where the sentence is vitiated by a sufficiently marked disparity to justify interference. The court relied on S v Malgas [2001] ZASCA 30; 2001 (1) SACR 469 (SCA) for the minimum-sentence framework, including the emphasis on the objective seriousness of the crime and the need for effective sanction, and the limitation on substituting sentence merely because an appellate court would have preferred a different result.


The High Court also applied the proportionality requirement described in S v Vilakazi 2012 (6) SA 353 (SCA), namely that a sentencing court must assess whether the prescribed sentence is proportionate in light of all the circumstances. It reiterated that sentencing requires a balanced consideration of the offender’s personal circumstances, the nature and seriousness of the offence, the interests of society, and a measure of mercy, together with the conventional purposes of punishment (deterrence, prevention, reformation, and retribution).


In assessing whether substantial and compelling circumstances existed, the court accepted that the appellant was 35 years old, had spent approximately 18 months in custody awaiting finalisation, was employed before incarceration, contributed to the maintenance of six minor children, and had no previous convictions. However, the court noted that the record did not show unreasonable delay attributable to the State; postponements were linked to the appellant’s consultations with legal representatives and, after conviction, a postponement for the preparation of a pre-sentence report requested by the defence.


The court rejected the argument that the offence was less serious because penetration occurred by a finger rather than a penis, relying on the statutory definition of sexual penetration in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which includes penetration by “any other part of the body” to any extent whatsoever. The court also addressed the submission that this was “not the worst rape imaginable” by invoking the sentencing perspective in S v Mahomotsa 2002 (2) SACR 435 (SCA), to the effect that there is an upper limit of punishment and multiple cases of varying seriousness may nonetheless justify the maximum penalty if the least horrendous among them is still sufficiently grave.


Ultimately, the High Court concluded that the regional magistrate had properly considered the relevant factors and had not misdirected himself in finding no substantial and compelling circumstances justifying deviation from life imprisonment on the rape count. The court also concluded that the life sentence was not disproportionate to the offence committed against the appellant’s fourteen-year-old stepdaughter. In respect of the sexual assault sentence, the court found no misdirection and therefore no basis to interfere.


Outcome and Relief


The High Court granted condonation for the late filing of the appellant’s heads of argument.


The appeal against conviction and sentence on both counts was dismissed. The convictions and sentences, namely life imprisonment for rape (count 1) and five years’ imprisonment for sexual assault (count 2), were confirmed.


No separate costs order was described in the order.


Cases Cited


S v Francis 1991 (1) SACR 198 (A)


Shackell v S [2001] 4 All SA 279 (SCA)


S v Malgas [2001] ZASCA 30; 2001 (1) SACR 469 (SCA)


S v Vilakazi 2012 (6) SA 353 (SCA)


S v Mahomotsa 2002 (2) SACR 435 (SCA)


Legislation Cited


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that there was no basis to interfere with the trial court’s factual findings and credibility assessments, and no misdirection was shown in the trial court’s approach to the complainant’s evidence, including the application of caution where required. The appellant’s version was held to be unsupported and so improbable that it could not reasonably possibly be true when tested against the probabilities.


The High Court further held that the sentencing court committed no material misdirection and correctly applied the minimum-sentence framework. It found that the appellant’s personal circumstances, whether considered individually or cumulatively, did not amount to substantial and compelling circumstances justifying a deviation from the prescribed sentence of life imprisonment for rape. It also held that penetration by a finger falls within the statutory definition of sexual penetration and does not reduce the gravity of the offence. The sentences imposed were confirmed.


LEGAL PRINCIPLES


The summary of governing principles applied by the High Court included that an appellate court’s power to interfere with a trial court’s findings of fact is limited, and that, absent misdirection, the trial court’s acceptance of witness evidence is presumed correct; interference is justified only on adequate grounds and in exceptional circumstances, given the trial court’s advantage in seeing and hearing witnesses.


The court applied the principle that an accused’s version must be accepted if it is reasonably possibly true in substance, and that while an accused’s account may be tested against inherent probabilities, it cannot be rejected merely because it is improbable; it may be rejected where it is so improbable that it cannot reasonably possibly be true.


On sentence, the court applied that appellate interference is constrained: in the absence of a material misdirection, an appellate court may not substitute its preferred sentence, and may interfere only where the disparity is so marked that the sentence is “shocking, startling or disturbingly inappropriate.” In the context of minimum sentences, the court applied that the enquiry is whether substantial and compelling circumstances exist to justify deviation, assessed on all the facts, and that deviation should not occur for “flimsy reasons.”


The court also applied that before imposing a prescribed sentence, the sentencing court must assess whether it is proportionate to the offence in the circumstances of the particular case, and that sentencing requires a balanced consideration of the offender’s personal circumstances, the seriousness of the offence, and the interests of society.


Finally, the court applied the statutory principle that sexual penetration as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 includes penetration by any other part of the body, confirming that digital penetration falls within the definition for purposes of rape under the statute.

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[2023] ZAGPJHC 700
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P.M v S (A103/2020) [2023] ZAGPJHC 700 (14 June 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A103/2020
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
M,
P
APPELLANT
and
THE
STATE
RESPONDENT
JUDGEMENT
RAMLAL AJ
[1] The Appellant in this
matter was convicted and sentenced as follows:
Count
1: Convicted of rape in contravention of section 3 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act
32 of
2007
(the Act).
Sentenced to Life
Imprisonment; and
Count
2:  Sexual Assault, in contravention of section
5(1)
of the Act.
The Appellant was
sentenced to serve a term of five years imprisonment.
[2] The Appellant has an
automatic right to appeal. The matter is for consideration of the
appeal against the conviction and the
sentence on both counts.
[3]  The
Appellant was represented in this appeal by Advocate Henzen Du Toit
(Legal Aid Board) and Advocate TJ Mbodi represented
the Respondent.
[4] At the commencement
of these proceedings, the Appellant applied for condonation for the
late filing of his heads of argument.
Counsel for the appellant made
submissions and furnished a detailed chronology relating to the
incomplete record and the attempts
made to obtain the full and proper
transcribed record of the proceedings of the trial court. The State
did not oppose the application
for condonation. Upon due
consideration of the application the court concluded that it was in
the interests of justice that the
application for condonation be
granted.
[5]
The facts that gave rise to the conviction of the appellant on both
counts are that the complainant, a fourteen-year-old
girl testified
that she is the stepdaughter of the accused. The accused is also the
father of her younger sibling. They all lived
in the same dwelling.
During October 2017 the accused touched the breasts of the
complainant and the complainant felt it was inappropriate.
She
reported the incident to her mother. Her mother assured her that she
had spoken to the accused and that she had reprimanded
him for
touching the breasts of the complainant. The matter was not reported
to the police at that time.
[6] On
1 December 2017 the complainant was at home washing dishes in the
kitchen when she heard the cry of the baby, who was sleeping
in the
room. She entered the room where the baby was sleeping on one bed and
the accused on another. The bed where the accused
was sleeping was
closer to the door. As the complainant passed the bed where the
accused was sleeping, the accused stood up and
closed the door and
threw the complainant onto the bed. The accused pressed onto the
breast of the complainant with one hand and
with the other hand he
inserted his finger into her vagina. The complainant was wearing
pyjamas which consisted of a three- quarter
trouser and a top. The
accused put his hand inside the trouser and inserted his forefinger
twice into her vagina. The complainant
began crying loudly and
uncontrollably which drew the attention of a neighbour. When the
complainant refused to disclose why she
was crying, the neighbour
established telephonic contact with the mother of the complainant
(who had left to go to work earlier
that morning). The neighbour
handed the phone to the complainant who merely told her mother that
he has done it again
[1]
. This
led to the matter being reported to the police and the charges being
laid against the accused.
[7] At the trial, the
complainant, her mother, the neighbour and the doctor testified in
the States case. The accused testified
in his defence and denied
having sexually assaulted the complainant. He also denied having
raped the complainant. The accused explained
that he merely hugged
the complainant as he was on his way to his home in Kwa Zulu Natal.
After he was confronted by the mother
of the complainant about the
report that the complainant made to her, he left the house and went
to the tavern. He returned home
at around 22:00 that night.
[8] The appeal against
the conviction
is
premised on the
following grounds:
8.1  That the court
erred in accepting the State’s version,
8.2 The court erred in
accepting the evidence of the complainant without applying caution to
her evidence as she was a single witness;
8.3 The court erred in
not accepting the version of the Appellant;
8.4 The court erred in
disregarding the Appellant’s personal circumstances and
over-emphasised the seriousness of the offence
when it imposed the
minimum sentence of life imprisonment on count 1 and that the court
imposed a shockingly inappropriate sentence
of five years
imprisonment on count 2.
[9]
A Court of
Appeal will not easily interfere with the trial court’s factual
findings unless such findings are clearly wrong.
It is also well
established that the guilt of the appellant must be proved beyond a
reasonable doubt in order to secure a conviction.
[10]
In
S
v Francis
1991
(1) SACR 198
(A)
at 198j-199a
it
was held that:
“
The
powers of a court of appeal to interfere with the findings of fact of
a trial court are limited. In the absence of any misdirection
the
trial court’s conclusion, including its acceptance of a
witness’ evidence is presumed to be correct. In order to

succeed on appeal, the appellant must therefore convince the court of
appeal on adequate grounds that the trial court was wrong
in
accepting the witness’ evidence - a reasonable doubt will not
suffice to justify interference with its findings. Bearing
in mind
the advantage which a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional circumstances
that
the court of appeal will be entitled to interfere with a trial
court’s evaluation of oral testimony.”
[11]  The trial
court was mindful of the cautionary rules applicable to the evidence
of the single witnesses in respect of
both counts. On the first
count, the evidence of the complainant was evaluated in conjunction
with the medical examination report
that supported her narration of
the occurrence. The evidence of the complainant was further
substantiated by the evidence of the
independent witness who assisted
the complainant when she was crying hysterically. The independent
witness summoned the assistance
of the mother over the telephone when
she realized that the complainant was unable to relate the reason why
she was unable to discuss
the cause of her distress. In respect of
the second count, the evidence of the complainant, that she had
reported the incident
to her mother shortly after the occurrence was
evaluated by the trial court in conjunction with the evidence that
when she spoke
to her mother over the phone she merely said that he
has done it again and the mother knew that the matter was serious and
she
made her way home to attend to the report that she had received
from the complainant.
[12]
In
Shackell v S
[2001] 4 ALL
SA 279
[SCA]
Brand AJA stated:
‘’
a court
does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version is
reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course, it is permissible
to test the
accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable;
it can only be
rejected on the basis of inherent probabilities if it be said to be
so improbable that it cannot reasonably possibly
be true.’’
[13]
The Appellant’s version that the complainant falsely implicated
him because her mother influenced her to do so
was found to have no
basis as it was not supported by the facts. Further, the accused’s
version that he merely hugged the
complainant and kissed the baby as
he was leaving to go home to Kwa-Zulu Natal was rejected by the trial
court as it was so improbable
that it cannot possibly be true.
[14]
In the circumstances, I cannot find that the regional magistrate
misdirected himself in any way when he evaluated the
evidence placed
before him in respect of both counts.
[15]  A court may
only interfere with a sentence
imposed when there
is a material misdirection by the sentencing court. In
S
v Malgas
[2001] ZASCA 30
;
2001 (1) SACR 469
(SCA)
Marais
JA, dealing with the minimum sentence legislation, stated that when
considering sentence, the emphasis must shift to the
objective
seriousness of the type of crime and the public's need for effective
sanction against it.
[16]
At paragraph 12 in S v Malgas
(supra)
,
Marais JA provided guidance as to when an appellate court can
interfere with a sentence as follows:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court.' But
an appellate court may interfere with the exercise by the
sentencing
court of its discretion, even in the absence of a material
misdirection, when the disparity between the sentence imposed
by the
trial court and the sentence which the appellate court would have
imposed, had it been the trial court, is 'so marked that
it can
properly be described as shocking, startling or disturbingly
inappropriate'.
[17]
I
n
S v
Vilakazi 2012[6] SA 353[SCA] para. 15
the court said:
“
it
is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all the

circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence.’’
[18]
To arrive at a just and appropriate sentence, a court must
consider the personal circumstances of the Appellant, the nature of
the
offence, factor in the interests of the society, weigh this
against the others and then blend them with the requisite measure of

mercy. The court must act even-handedly, not over-emphasising the
effect of the crime or under-emphasising any of the elements
or
purpose that are relevant to sentencing.
[19]  The court must
also be mindful of the need to apply the established principles of
deterrence, prevention, reformation,
and retribution.
[20]
There is no
established definition as to what constitutes compelling and
substantial circumstances. The court must consider all
the facts of
the case in determining whether compelling and substantial
circumstances exist. In the case of
S
v Malgas
the
court stated it is not possible to give “
an
all-embracing definition”
of what the term
substantial and compelling circumstances entails. It will depend on
the facts of each case.  The court cautioned
against deviation
from the minimum sentences prescribed for ‘
flimsy
reasons’
.
[21]
The Regional Magistrate evaluated the personal circumstances of the
Appellant, considered the seriousness of the offence, the
interests
of society and concluded that none of the submissions made to the
court constituted substantial and compelling circumstances
that
justified a deviation from the prescribed minimum sentence in respect
of count 1.
[22]
The Appellant in this matter was thirty-five years old at the time of
his sentence. He was in custody for a period of
18 months awaiting
the finalisation of this matter. Before his incarceration he was
employed. He earned R11200-00 per month from
which he contributed
R4500-00 towards the maintenance of his 6 minor children. He has no
previous convictions.
[23]
Although the appellant was in custody for a period of eighteen months
awaiting the finalization of this case, the record does
not reflect
any unreasonable delays being occasioned by the State. In fact, the
long periods of postponements were as a result
of the appellant
having to consult with his legal representatives
[2]
and
after conviction, the matter was postponed
[3]
for
the furnishing of a pre-sentence report that was requested by the
defence, on behalf of the appellant.
[24] The appellant argues
that the court
a
quo
erred in not taking into consideration that a finger instead of a
penis was used in the commission of the crime. The
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
provides a full definition of sexual penetration
[4]
,
thus confirming that the absence of the use of the genital organ does
not reduce the gravity of the offence.
[25] It was submitted on
behalf of the appellant that this was not the worst rape imaginable
and when taken into consideration with
the other mitigating factors,
the imposition of a lesser sentence is justified. In
S
v Mahomotsa
[5]
Mpati JA stated:
“
There is
always an upper limit in all sentencing jurisdictions, be it death,
life or some lengthy term of imprisonment, and there
will always be
cases which, although differing in their respective degrees of
seriousness, nonetheless all call for the maximum
penalty imposable.
The fact that the crimes under consideration are not all equally
horrendous may not matter if the least horrendous
of them is
horrendous enough to justify the imposition of the maximum penalty.”
[26]
This court, having carefully considered the submissions of counsel
for the appellant and the respondent and having taken
the evidence in
mitigation and aggravation of sentence into account, cannot find that
the regional magistrate misdirected himself
in any manner when he
found that no substantial and compelling circumstances exist to
justify deviation from the mandated sentence
of life imprisonment.
[27]
None of the factors that the Appellant relies on to establish
substantial and compelling circumstances either singularly or
cumulatively,
equate to substantial and compelling circumstances to
justify a deviation from the prescribed minimum sentence of life
imprisonment
being imposed.
I am also satisfied
that the sentence of life imprisonment is not disproportionate to the
crime that has been committed against
the fourteen-year-old
stepdaughter of the appellant. In respect of count 2 the regional
magistrate committed no misdirection in
his consideration of a
suitable sentence and this Court accordingly cannot overturn the
sentence of the Court
a quo.
ORDER
[28] As a result the
following order is made:
1. Condonation for the
late filing of the Appellant’s heads of argument is granted;
2.
The appeal in respect
of the conviction and sentence on both counts is dismissed.
3.
The convictions and sentences on both counts are confirme
d.
A.K. RAMLAL
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT
JOHANNESBURG
I concur
G ALLY
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT
JOHANNESBURG
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down in Court and circulated
electronically
by uploading it to the electronic file of this matter on CaseLines.
The date for hand-down is deemed to be
14
June 2023
.
Date of hearing:
13 February 2023
Date of judgment: 14 June 2023
Appearances:
Counsel
for the Appellant:
Adv
Henzen-Du Toit
Instructed
by:
Legal
Aid South Africa
janette.law@outlook.com
Adv.
T.J. MBODI
TMbodi@npa.gov.za
Instructed
by:
OFFICE
OF THE DIRECTOR OF PUBLIC PROSECUTIONS JOHANNESBURG
[1]
Transcribed record page 155 line20 and page 167 lines
10-20
[2]
Caselines 002-22 to 002-30
[3]
Caselines
002-56
to 002-60
[4]
“
Sexual penetration includes any act which causes
penetration including legal/medical penetration to any extent
whatsoever by:
(a) genital organs of one person into or beyond the
genital organs, anus or mouth of another person (b) any other part
of the
body of one person or, any object, including any part of the
body of an animal into or beyond the genital organs or anus of
another
person; or (c) the genital organs of an animal, into or
beyond the mouth of another person.”
[5]
S v Mahomotsa 2002(2) SACR 435(SCA) at 444

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