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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: A04/2022
In the matter between:
EMILE TERBLANCHE APPELLANT
And
THE STATE RESPONDENT
Heard: 20 October 2023
Delivered: 12 February 2024
JUDGMENT
LEKHULENI J
Introduction
[1] This is an appeal against conviction on four counts of sexual assault and three
counts of rape as well as against the resultant sentence of life imprisonment imposed
against the appellant by the Parow Regional Court. The appellant was convicted by the
Regional Court on five counts of sexual assault in contravention of section 5(1) and on
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three counts of sexual penetration in violation of section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, respectively. The appellant
pleaded not guilty at the trial and exercised his right to remain silent. Before the trial
commenced, the sentencing provisions of section 51(1) of the Criminal Law Amendment
Act 105 of 1997 (‘CLAA’) were explained to the appellant, who understood.
[2] The State alleged on count 1 that the appellant was guilty of contravening section
21(3) of Act 32 of 2007, exposure and self-masturbation, in that on or about 2016 to 2018
at or near Parow, the accused unlawfully and intentionally forced the complainant, a
female minor aged 14, to look at him while he was performing self -masturbation.
Concerning count 2, it was alleged that from 2016 to 2017, the appellant unlawfully and
intentionally violated the complainant by touching her breast. Regarding count 3, it was
alleged that during 2016 and 2017, the appellant unlawfully and intentionally violated the
complainant by touching her vagina. On the fourth count, it was alleged that during 2016
and 2017, the accused unlawfully and intentionally violated the complainant by licking the
complainant's vagina. In count 5, i t was alleged that during 2016 to 2017, the accused
unlawfully and intentionally violated the complainant by rubbing his penis against her
vagina on more than one occasion.
[3] Concerning count 6, the State alleged that during the period 2016 and at near
Parow, the appellant unlawfully and intentionally committed an act of sexual penetration
with the complainant by pushing his penis into her mouth without her consent. Count 7
and 8 also involved charges of sexual penetration. It was alleged in count 7 that during
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2017 and 2018, the appellant unlawfully and intentionally committed an act of sexual
penetration with the complainant by inserting his penis in her vagina without her consent.
In count 8, it was alleged that during the same period as in count 7, the appellant
unlawfully and intentionally committed an act of sexual penetration with the complainant
by pushing his fingers into her vagina on more than one occasion without her consent.
[4] The prescribed minimum sentence in terms of the CLAA for counts 6 to 8 was life
imprisonment because the complainant was under 16 years of age when the alleged
offences were committed. (Offences were committed before the 2022 amendments).
However, the Regional Magistrate found substantial and compelling circumstances
meriting a deviation from the prescribed minimum sentence. The trial court took the three
counts of sexual penetration together for the purposes of sentence. It imposed a sentence
of life imprisonment in respect of those counts.
[5] The court a quo imposed a sentence of three years imprisonment in respect of
count 1. The court took the f our counts of sexual assault together for the purposes of
sentence. It i mposed a sentence of five years direct imprisonment in respect of those
counts. In terms of section 103(1)(g) of the Firearms Control Act 60 of 2000, the trial court
declared the appellant unfit to possess a firearm. The court also made an ancillary order
in terms of section 50 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007. It directed that the appellant's name be entered in the Sexual
Offences Register.
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[6] Discontented by this decision, the appellant exercised his automatic right of appeal
in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA), seeking
a reversal of the conviction and sentence imposed by the court a quo. The appellant avers
that the Regional Magistrate misdirected herself in finding that the State has discharged
its onus and proven the guilt of the appellant beyond a reasonable doubt. The appellant
seeks an order in this court that sets aside the convict ion against him as well as the
resultant sentence.
Background Facts
[7] To fully comprehend the pertinent issues that must be determined in this appeal
and the view I take in this matter; it is necessary to sketch out a brief background of the
facts underpinning the reasons that fortify my conclusion. The State called three
witnesses in a quest to prove the guilt of the appellant beyond reasonable doubt. The
appellant testified and did not call witnesses to testify in his defence. Several
documentary pieces of evidence, including the medical expert report and witnesses'
statements, were handed in by agreement as exhibits. To the extent necessary, I will
summarise the evidence led at the trial and not repeat the evidence verbatim. Where
necessary, I will refer to the exhibits handed in during the hearing at the court below.
[8] The State tendered the evidence of the complainant. At the time of giving evidence,
she had already reached the age of majority and was 18. To prevent the likelihood of
prejudice to the complainant, on the application of the State, the court directed that she
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testifies through a close circuit television in terms of section 158(3) of the CPA. In
summary, the complainant testified that she knew the appellant as he was in love with
her mother. The complainant and her mother moved in and lived with the appellant on
Kompanje Street in Avondale, Parow in 2015. The complainant lived with the appellant
and her mother at this place from 2015 to September 2018. From there, she went to live
with her father in Viking Palace.
[9] When they moved in to live with the appellant, her mother was working but later
lost her job. The witness testified that in 2016, the appellant started to touch her a lot and
tickled her incessantly. In the beginning, the appellant touched her on top of the clothing,
but later, he started to touch her under the clothes on her body. The first time was in 2016/
2017, in which the appellant placed her on his lap and then rubbed his penis against her
vagina. When this happened, she was on her back, and the appellant was on top of her.
After that, the appellant stood up and ordered her to place her mouth over his penis.
According to the complainant, the alleged rape happened from 2017 to 2018. These
incidents happened in her room and her mother's room. The appellant would take
advantage when her mother was not around.
[10] She testified that in her mother's room, the appellant would remove her trouser
and would rub his penis against her vagina, and he would lick her vagina. When so doing,
the appellant would tell her she could ask him any time to stop. However, when she told
him to stop, he continued saying he had convinced her. The appellant would tell her how
much he loved her and her mother. She never told her mother what the appellant did to
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her as she feared that if she told her, the appellant and her mother would fight, and her
mother would have ended up not having a place to stay.
[11] The complainant further explained that the appellant touched her breast, her
stomach as well as her legs. Around 2016 and 2017, the witness testified that the
appellant licked her vagina and placed the front part of his penis in her mouth. In 2017/
2018, the appellant placed the front part of his penis inside her vagina. The appellant also
rubbed his penis against her vagina and placed his fingers inside her vagina and making
up and down movements.
[12] According to the complainant, her ordeal usually happened after work between
17h00 and 18h00 when her mother was asleep or taking a shower or when she was out
shopping or at work. Her mother was aware that the appellant would creep into her bed;
however, she testified that nothing happened in the mornings. Her mother would fight with
the appellant over that. This happened in the year 2018. The complainant also described
an incident where they had placed a mattress in their living room. She slept on the right,
the mother on the left, and the appellant in the middle. When her mother fell asleep, the
appellant placed his fingers inside her vagina.
[13] She moved out from the appellant's premises as her mother, and the appellant
fought a lot. She went to stay with her father. She did not tell her father what the appellant
did to her as she did not think the father would believe her. She only told her friend. She
told him that the appellant was touching her a lot and that he was making her
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uncomfortable. According to her, she did not tell her friend how the appellant was touching
her. Her alleged ordeal became known because she wrote a poem that had to stay private
or a secret. She wrote the Poem on Poetry Amino, a place where one could write poetry
anonymously. The relevant part of the poem stated:
“I still feel your hands on me every single day. I no longer feel free in my whole body. You think I
did it willingly. You pushed me down. I was not asking for it. You said we can stop anytime.”
[14] The witness testified that she wrote this poem in September 2018 while living with
her father. She felt safe posting the poem as her mother told her that she had deleted the
app (Poetry app). Her mother saw the poem and called her. The complainant's mother
asked the complainant if she was referring to the appellant in the poem, and she
answered yes. The mother then informed the complainant's father, and they contacted
the police. At that time, the complainant's mother had already moved from the appellant's
place and was staying with her friend. They went to the police and later went to the doctor.
[15] During cross-examination, she testified that she has a good relationship with her
father and mother. The witness testified that her mother is always there for her, and she
can tell her everything. She added that the fight between her mother and the appellant
made her heart sore. They fought regularly, and her mother cried a lot. It was her
testimony that she had a good relationship with the appellant except for the allegations
she levelled against him. They would play games or watch movies together. She also
gave him a Father's Day card.
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[16] When she was asked as to when the first time was that the appellant placed his
finger inside her vagina and she asserted in response that due to the trauma she went
through, she could not specifically remember whether it was in 2016/2017. According to
her, her molestation happened after work and, at times, over weekends. She also
confirmed during cross-examination that in 2017 and 2018 was when the appellant placed
the front part of his penis inside her vagina. This happened not more than three to four
times. Most of the time, it happened when her mother was in bed sleeping as she suffered
from cancer and had to undergo chemotherapy.
[17] She also emphasised the incident where the appellant allegedly placed his penis
in her mouth. According to her, when this incident happened (oral sex), her mother was
not around because the witness' bedroom door was open. She conceded that in the two
statements she made to the police, she did not mention the appellant forcing her to give
him oral sex. However, when the court asked her questions, she stated that the statement,
particularly A18, was not read back to her. It was written, and she was just asked to sign.
She explained this to the prosecutor when she consulted with her in preparation for the
hearing. She could not answer the differences in her statement and in her testimony and
her statement where she indicated that one morning, the appellant pulled her pants and
pushed his tongue into her private parts.
[18] When she was quizzed on how she reported to her friend, she testified that she
must have told her friend telephonically that the appellant touched her in a way that made
her uncomfortable. However, she did not tell her friend everything. It was put to her that
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the appellant did not rape her or sexually assault her as she alleged. In response, she
was adamant that the appellant touched her breast, inserted his fingers in her vagina
more than once and forced her to have oral sex with him. She further reaffirmed that the
appellant masturbated in her presence in front of her and even inserted his penis in her
vagina.
[19] The complainant's friend, C […] G[…], also came to testify. This witness testified
that he was in the same school as the complainant, and they were friends. In June 2018,
the complainant told him that the appellant touched her a lot and stared at her a lot. One
time, when he was on a call wi th her, the complainant told her that the appellant was
staring at her so much that she told him she was feeling uncomfortable. The complainant
was quiet the following day at school until the second break. He asked her what the
problem was, and the complainant did not tell her anything. During that time, he observed
that the complainant was very emotional and withdrawn. It was only after she reported
the case that she said to him that she was molested.
[20] The complainant told him in September 2018, after the case was reported, that the
appellant penetrated her through his penis and with his fingers. The complainant also
said to him that the appellant had oral sex with her. She did not agree or consent to what
happened and never permitted him to do so.
[21] Under cross-examination, the witness testified that the complainant reported the
alleged offences to her after she reported the case to the police. When he was quizzed
as to precisely what the complainant told him, he stated that the complainant said to him
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that the appellant penetrated him vaginally through his fingers and through his penis. She
never permitted him to do that to her.
[22] The complainant's mother, Ms J[…], testified that he was in a relationship with the
appellant. Their relationship started in 2014 and ended on 1 September 2018. The
complainant lived with her up until she began chemotherapy in 2018. Before her
diagnosis, she was on anti-depressant, sleeping medication and anti-anxiety medication.
She testified that in September 2018, she sent the complainant an SMS, and the latter
did not reply. She then went to read poems on Imena because she missed her.
[23] She found a newish poem that described how she went through sexual abuse. She
phoned the complainant and confronted her about it. She asked the complainant whether
it was the appellant that she was referring to in the poem because what the abuser said
to the complainant, as stated in the poem, was similar to two things that the appellant
used to say to her. These are words to the effect that you are ‘ easy to convince’. From
the poem, she gathered that the complainant was abused orally, and this is what the
appellant was obsessed with in their relationship.
[24] She asked the complainant what happened, and the latter told her she was with
the father and did not want to talk then. The witness then asked to speak to the father.
She explained the poem that the complainant wrote to the father and sent him a
screenshot of it. The latter promised to talk to the complainant to get to the bottom of the
matter. The complainant did not give her the details of the alleged abuse, but she just told
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her the poem was about the appellant. She later gave the full details of the alleged sexual
assault and rape on her 18th birthday. It was the first time she described in detail what
happened to her. During cross-examination, it was asked what the complainant told her,
and she stated that the complainant mentioned that the appellant did not fully penetrate
her. However, he only penetrated her with the tip of his penis.
[25] Dr Donovan Andrews, who examined the complainant, also came to testify. On 04
October 2018, he examined the complainant and completed a medical report (J88 form).
He examined the complainant and found that the hymen and the vagina were intact. He
recorded in his report that the absence of injuries does not rule out rape or sexual assault.
The doctor also explained that the complainant had an elastic hymen, which would only
tear with childbirth. During cross -examination, he testified that he could not f ind any
indication of penetration. However, when asked by the court whether it was possible or
not with an elastic hymen like that of the complainant to find any sign of penetration, if
there was any, his answer was no.
[26] On the other hand, the appellant put up the following version in his defence: he
confirmed that he had a relationship with the complainant's mother, Ms J […]. He
explained that the complainant and her mother moved into his place in May 2016. The
appellant explained his relationship with the complainant and said they got along well with
each other. The complainant showed him games on the cell phone and even downloaded
some games to his cell phone. He would regularly assist the complainant with her
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homework. He taught the complainant how to make smoke bombs and helped her with
her schoolwork, particularly school projects like science and maths.
[27] The appellant testified that he would wake the complainant up in the morning and
take her to school. Sometimes, he would take her to her friends. The complainant was
enjoying staying with them, and she would invite friends who would come, and they would
play games. The complainant would also ask him to watch movies with him or play games.
Regularly, the complainant sought his company. They would watch movies, and at times,
they would engage in pillow fights. The complainant and her mother have a mother-and-
daughter relationship. According to the appellant, his relationship with the complainant's
mother near the end of 2018 got a little bit rough as they fought a lot, and the environment
was an uncomfortable one. He could see that it was affecting the complainant.
[28] The appellant disputed the allegations the complainant levelled against him. He
also explained the Christmas bed incident in which they took matrasses and placed them
in the lounge in front of the TV. They would all congregate in front of the TV, eat snacks,
watch movies, have tickle fights, or play around until they all fell asleep. When it came to
sleeping time, the complainant's mother would sleep in the middle, the appellant would
sleep on one end, and the complainant would sleep on the other. It was his evidence that
he had no idea of all the charges levelled against him, and he had no idea why the
complainant would do this. It hurts him deeply to hear this.
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[29] Under cross-examination, the appellant stated that he ended the relationship with
the complainant's mother as they had a big fight, and he told her he could not continue
the fight. At that time, it was about a month or two that the complainant left them and was
living with her father. When he was asked why the complainant no longer visited them
after she left, he stated that before she left, the complainant stated that she was struggling
with the fighting between him and her mother, which negatively affected her schoolwork.
Notwithstanding the fights between him and the complainant's mother, his relationship
with the complainant remained good.
[30] After they separated, the complainant's mother lived with her friend. At that time,
he never had any contact with the complainant. He only had contact with the complainant
while she was living with them. According to him, he suspects the complainant was upset
about his breakup with her mother. The appellant also confirmed that the complainant's
mother was sick and was using anti -depressant medication as she was exhausted and
not motivated. Due to the depression, she did not give him and the complainant attention.
She was tired and slept most of the time.
[31] When it was put to him that due to her state, his attention moved away from the
complainant's mother to the complainant, he disputed this. He stated that they were still
intimate sometimes, but not a lot. The main problem was that she argued a lot and fought
a lot. He denied during cross-examination that he masturbated in front of the complainant
or that he touched the complainant or penetrated her vaginally through his penis or his
fingers. He confirmed that the complainant wrote little stories and poems.
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The findings of the trial court
[32] After considering the conspectus of the evidence, the trial court made favourable
credibility findings regarding the evidence of the complainant, who was a single witness.
It held that the complainant gave a reasonable version to the court about what had
transpired from the time she and her mother went to reside with the appellant at his
residence. The trial court found that the complainant's version was credible and
trustworthy and was corroborated by the evidence of her friend, Connor G[...] . To the
contrary, the court found that on the totality of the evidence, the version of the appellant
that he did not sexually abuse the complainant as alleged by the State, was false beyond
reasonable doubt and that his version of a bare denial is merely to protect himself.
The grounds of appeal
[33] The applicant raised various grounds of appeal on conviction and sentence. The
grounds of appeal as discernible from the notice of appeal may, in a nutshell be
summarised as follows:
[34] The trial court erred in finding that the State had proved the appellant's guilt beyond
reasonable doubt, particularly in that the court a quo failed to attach the necessary weight
to the vagueness of the complainant's testimony as she was incapable of giving a
coherent timeline of the alleged incidents and could not specify how frequently the
incident occurred, nor could she recall when and how the incidents occurred.
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[35] That the trial court erred and misdirected itself in failing to approach the
complainant's evidence with the critical scrutiny when considering the application of the
cautionary rule of a single witness. That the court a quo summarised the evidence but
that there was no indication that an analysis of the evidence whilst exercising great
caution was done. That the trial court erred and misdirected itself by failing to attach
sufficient weight to the inconsistencies between the complainant's testimony in court and
her two written statements and that the trial court incorrectly applied the evidence of the
State in its rejection of the appellant's version and therefore misdirected herself.
[36] Regarding sentence, the appellant contended that the trial court failed to consider
the findings of the Correctional Officer and the Probation Officer in their reports who found
that the appellant would be a suitable candidate for correctional supervision. The
appellant further contended that the Regional Magistrate correctly found that there were
substantial and compelling circumstances; however, she erred in imposing a prescribed
minimum sentence of life imprisonment on the applicant. The trial court failed to consider
the appellant's personal circumstances properly but merely provided lip service to his
circumstances.
Applicable Legal Principles and Discussion
[37] It is settled law that in a matter such as the present, this court's powers to interfere
on appeal with the findings of fact of the trial court are limited in the absence of
demonstrable and material misdirection. Where there is no misdirection on fact, the
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presumption is that its findings are correct, and the appellate court will only interfere with
them if it is convinced that they are wrong. This principle was restated in S v Jochems1
as follows:
“It is a time-honoured principle that once a trial court has made credibility findings, an
appeal court should be deferential and slow to interfere therewith unless is convinced on
a conspectus of the evidence that the trial court was clearly wrong. R v Dhlumayo and
Another 1948(2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310 (SCA) para12. As
the saying goes, he was steeped in the atmosphere of the trial. Absent any positive finding
that he was wrong, this court is not at liberty to interfere with his findings.”
[38] However, i n Minister of Safety and Security & others v Craig & O thers NNO ,2
Navsa JA, stated that although courts of appeal are slow to disturb findings of credibility,
they generally have greater liberty to do so where a finding of fact does not essentially
depend on the personal impression made by a witness’ demeanour, but predominantly
upon inferences and other facts and upon probabilities. In such a case, a court of appeal
with the benefit of a full record may often be in a better position to draw inferences.
[39] Against this backdrop, I turn to evaluate the merits of this appeal.
[40] The issue for determination in this appeal is whether the appellant's guilt was
established beyond reasonable doubt. At the hearing of this appeal, Mr Schol zel, who
appeared for the appellant, submitted that the court below had misdirected itself firstly by
1 1991(1) SACR (A) at 211 E-G.
2 2011(1) SACR 469 (SCA) para 58.
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ignoring the inconsistencies in the complainant's testimony when measured against the
two statements she made to the police and that there was no guarantee of truth in the
evidence of the complainant. Moreover, Mr Schol zel submitted that the complainant's
evidence is that of a single witness, was not satisfactory in all material respects, and had
not been corroborated by other state witnesses. He submitted that if these aspects had
been correctly considered by the court below, it would have concluded that the State had
not discharged the onus of proving the appellant's guilt beyond a reasonable doubt or that
the version of the appellant was reasonably possibly true in the circumstances and
therefore entitled to be acquitted of the charges levelled against him.
[41] On the other hand, Mr Koti, the State's C ounsel, argued that the court a quo
correctly weighed up the complainant's evidence and found her to be a credible, reliable,
and honest witness. Mr Koti further submitted that the court a quo found that the evidence
of the complainant was corroborated by the evidence of Mr G[...] and the evidence of the
doctor. He implored the court to dismiss the appeal both on conviction and sentence.
[42] It is well established in our law that the duty to prove an accused's guilt rests fairly
and squarely on the shoulders of the State. The accused need not assist the State in any
way in discharging this onus.
3 In assessing whether the State has discharged the onus
of proving its case against the accused beyond a reasonable doubt, it must consider all
the evidence in concluding whether to convict or acquit an accused. In other words, a
court's conclusion must account for all the evidence presented before it.4
3 S v Mathebula 1997 (1) SACR 10 (W).
4 S v Van der Meyden 1999 (1) SACR 447 (WLD) at 449h.
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[43] The complainant in this matter is a single witness. The complainant was 14 years
old at the time of the commission of the alleged offences. She was 18 when she testified
at the trial. Her evidence was given through a close circuit television in terms of section
158 of the CPA. The complainant was a single witness thus, her evidence must be
evaluated cautiously.
[44] Section 208 of the CPA provides that an accused person may be convicted of any
offence on the single evidence of any competent witness. The testimony of a s ingle
witness should be clear and satisfactory in all material aspects. The exercise of caution
must not be allowed to displace the exercise of common sense. 5 The approach to the
evidence of a single witness was enunciated in S v Sauls and Others,6 where Diemont
JA said:
There is no rule of thumb test or formula to apply when it comes to a consideration of the
credibility of the single witness (see the remarks of Rumpff JA in S v Webber 1971 (3) SA
754 (A) at 758). The trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy and whether, despite
the fact that there are shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told. The cautionary rule referred to by De Villiers JP in
1932 may be a guide to a right decision but it does not mean "that the appeal must succeed
if any criticism, however slender, of the witnesses' evidence were well founded" (Per
Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955 (2)
5 S v Artman and Another 1968 (3) SA 339(SCA).
6 1981 (3) SA 172 (A) at 180E-H.
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SA 566 (A) at 569). It has been said more than once that the exercise of caution must not
be allowed to displace the exercise of common sense.’
[45] In the present matter, the trial court was faced with two mutually destructive
versions of two single witnesses based on the evidence of the complainant and the
appellant. In S v Pietersen, 7 the court noted that the question that must be asked is
whether there is not a reasonable possibility that the version of the accused may be
substantially true, especially in the light of the fact that the magistrate was faced with the
evidence of a singl e witness and that two mutually destructive versions were placed as
evidence before the court.
[46] In a relatively terse judgment and w ithout a proper assessment of the evidence,
the trial court rejected the appellant's version as nonsensical and dishonest. Thus, this
court will assess the evidence to determine if the court a quo was indeed correct in
rejecting the appellant’s version and finding that the State proved its case against the
appellant beyond reasonable doubt.
[47] It is common cause that the complainant and her mother moved in to stay with the
appellant in 2015. It is also common cause that the appellant acted as a father figure to
the complainant. The complainant looked to the appellant as her father figure, albeit she
bought him a Father's Day card. The appellant was in a position of authority and trust
towards the complainant. The complainant looked to the appellant for support and
guidance. This version was corroborated by the appellant, who testified that he assi sted
7 [2006] JOL 16082 (SCA) para 5.
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the complainant with schoolwork , and in doing school projects like science as well as
maths.
[48] However, from 2016 onwards, the complainant testified that the appellant started
to touch her a lot in an inappropriate manner. Her evidence was that the appellant began
by masturbating in front of her and later touched her breast on top of her clothes. The
appellant progressed in the assault, touched her breast underneath her clothes, and after
that, licked her vagina, and thereafter caused her to have oral sex with him and later
vaginally had sex with her.
[49] The evidence showed a trust relationship between the appellant and the
complainant. In my view, the appellant employed a non-violent technique to gain access
and control the complainant. The State’s evidence reveals that the appellant cunningly
gained the trust of the complainant with the sole intent of committing sexual acts with her.
The inappropriate touching of her breasts on top of her clothes and, thereafter,
underneath her clothes was intended to lure or to groom the complainant to be pliable to
sexual acts. The evidence of the complainant reveals that the appellant seduced her over
an extended period until the said seduction reached its pinnacle, and that was when t he
appellant raped and sexually assaulted her. I repeat, t he grooming of the complainant
happened over time, and hence, the reason the complainant could not clearly explain
specific dates when the alleged incidents occurred.
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[50] It has been argued in this court that the fact that the complainant cannot remember
the specific dates is an indication that she is untruthful. I do not agree with this proposition.
It must be borne in mind that the complainant was still very young when these offences
were committed. She was still 14 years old. This was not a once off event. It happened
at home where the complainant was living with her mother and the appellant. The
appellant created an impression towards the complainant ’s mind that he loves and care
for her. There was nothing unusual at home to serve as a landmark or a source of
reference for the complainant. Moreover, the complainant was asked when the first time
was that the appellant placed his finger inside her vagina; she asserted in response that
due to the trauma she went through, she could not specifically remember whether it was
in 2016/2017.
[51] The relationship between the appellant and the complainant's mother was not
good. The fights between the appellant and the complainant's mother had a severe impact
on the emotional well-being of the complainant. It affected her emotionally and even her
performance on her schoolwork. This was the reason that caused her to leave the
appellant and her mother two months before her mother and the appellant could separate.
Her evidence was that the appellant touched her a lot several times such that she coul d
not precisely remember the dates when it happened.
[52] In my view, the suggestion that because she could not remember the specific date
of the incident, she was lying is unsustainable. Notwithstanding, the complainant used
their school event as a source of reference when the alleged rape took place. Her
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evidence was that the alleged rape happened after the Boeresport event at their school,
which was between the end of 2017 and the beginning of the year in 2018. Notably, she
was abused by a person she knew and trusted. I re peat, it was not a once-off event, but
it progressed from one stage to the other over an extended period.
[53] Furthermore, the complainant was young and vulnerable. When these incidents
happened, her mother was sick and slept most of the time. The appellant was the person
she could look up to for support. The appellant corroborated her version in this regard. In
his evidence, the appellant asserted that the complainant's mother suffered from
depression and was admitted for about a month at Tygerberg clinic. She used anti -
depressant medication, and she was exhausted and not motivated. It was also difficult for
him to keep her uplifted.
[54] According to him, the complainant's mother was in a Zombie State. As a result of
the depression, she did not give them any attention. This also made him tired, and it was
onerous for the complainant. In my view, the evidence that when all these offences were
committed against the complainant, her mother was sick and, most of the time, was
sleeping in his room is corroborated by the appellant.
[55] The argument that other State witnesses did not corroborate the complainant's
evidence is incorrect. The complainant's evidence must not be looked at in isolation or in
a piecemeal fashion. Two basic principles should be considered whenever evidence is
evaluated: evidence must be weighed in its totality and not on a piece -meal basis, and
23
probabilities must be distinguished from conjecture or speculation. An appraisal of all the
evidence is required. Reliable evidence should be weighed alongside such evidence as
may be found to be false. Independently verifiable evidence, if any, should be weighed to
see if it supports any of the evidence tendered.
8
[56] In my view, the complainant's evidence was largely corroborated by Mr. G […]'s
evidence. Mr G[…]'s evidence was that in June 2018 (before the case was reported), the
complainant told him that the appellant touched her a lot and stared at her a lot. Crucially,
this report to Mr G[…], was made when the complainant was still living with the appellant
and her mother. In one instance, the complainant was in the lounge with the appellant,
the witness (Mr G[ …]) and the complainant were on a call. During their discussion, the
complainant told him that s he was feeling very uncomfortable because the appellant
stared at her so much. After that, they ended the call.
[57] The next day at school, the complainant was very uneasy and uncomfortable until
the second break. Mr G[…] observed that the complainant was withdrawn and emotional.
She asked the complainant what had happened, and the latter did not tell him what had
happened. He then concluded that the touching the complainant was referring to was a
bit worse than what she w as telling him. He spoke to the complainant a lot about this
incident and stated that it came from her own to tell her parents. Later, after she opened
the case, the complainant said to him that the appellant penetrated her with his fingers
and penis.
8 S v Trainor 2003 (1) SACR 35 (SCA) para 9.
24
[58] I am of the opinion that Mr. G […]'s evidence corroborates the evidence of the
complainant in all material respects. The appellant was touching the complainant and
abusing her sexually, so much so that this affected the complainant emotionally. Mr G[...]
observed this. I consider Mr G[...] an independent witness with no interest in the matter.
The complainant reported to him her alleged ordeal long before she could report to her
parents or even before she could open a case with the police.
[59] I must emphasise that t he complainant told Mr G[...] that the appellant was
uncomfortably touching her when she was still staying with the appellant. In my view, the
complainant was vulnerable. She was immature in age and in a very toxic and
uncomfortable environment. Her mother and the appellant constantly fought. Her mother
was sick and spent most of the time sleeping. In the process, the appellant took
advantage of her vulnerability, seduced her over an extended period, and thereafter
eventually raped her.
[60] As correctly pointed out by the prosecutor during cross -examination, when the
complainant's mother became sick in 2016, the appellant's attention shifted from the
complainant's mom to the complainant. He took advantage of the vulnerability and
dependence of the complainant. He groomed and lured the complainant by touching her,
masturbating in front of her, licking her vagina, and later inserting his penis into her
vagina.
25
[61] It was argued during the hearing of this appeal that there is no guarantee of truth
in the complainant's evidence. Further, it was suggested that the medical evidence the
State produced did not support the complainant's evidence. I do not agree with this
proposition. As previously stated, it is incumbent on this court to eschew a piecemeal
process of reasoning. It should assess the evidence before it holistically. The evidence of
Dr Andrew's was that the complainant has an elastic hymen, which would only tear with
childbirth. According to him, with enough force, one could tear it. However, with
intercourse or with digital or penal penetration, it would not tear. He further stated that, as
such, there was no indication of penetration. However, when questioned by the court
whether, with a hymen like that, one could still find any sign of penetration, his response
was no.
[62] In my view, with this evidence, the fact that there were no injuries or sign of
penetration does not mean that the complainant was not raped. In any event, in his clinical
findings, Dr Andrews noted that the absence of injuries does not exclude rape. Moreover,
the complainant cannot be expected to have suffered physical injuries when the appellant
inserted his penis in her mouth or touching her breast and licking her vagina.
[63] In addition to the above, the evidence of the complainant's mother and that of the
appellant corroborates the complainant's version. The appellant and the complainant's
mother confirmed that the complainant, young as she was, is a writer. She wrote poems
and little stories. During cross-examination, the appellant stated that the complainant had
written little stories and poems. To express her suppressed emotions, the complainant
26
put pen to paper and wrote a poem. Her mother discovered this poem. I find this part of
the poem relevant. It states as follows:
“I still feel your hands on me, every single day. I no longer feel free, in my own body. You
think I did it willingly, you pushed me down. I was not asking for it. You said, we can stop
anytime…Stop. I feel your breath over my legs. I feel your lips over my stomach. I feel
everything. It is like you are still here, and I am paralysed in fear because of you. I cannot
stand the thought of something that was supposed to be special, because of you I do not
want people to touch me. Because of you and the screams.” (“my emphasis’)
[64] This poem, in my view, expresses emotions and the effect of grief that the
complainant suffered and continues to suffer because of the abuse. It also expresses the
humiliating as well as the traumatic experience which violated her dignity and pride as a
girl child. The poem also expresses the pain the complainant was subjected to and its
deleterious effect on her. I find it highly improbable that the complainant would express
such grief as she did if nothing at all happened to her. Importantly, the grief and emotions
poured out in the poem were observed by Mr G[...] when he met the complainant at
school. According to him, after the complainant told him that the appellant was
inappropriately touching her, the complainant at school was distraught and emotionally
withdrawn.
[65] Significantly, the complainant's mother stated that when she read the poem, she
noted two things similar to what the appellant said to her. For instance, that you are easy
to convince and the oral sex. Her evidence was that the appellant was obsessed with oral
sex during her relationship with him.
27
[66] Mr Scholzel challenged the evidence of the complainant, especially that in her two
statements (A1 and A18), she did not mention that the appellant forced her to have oral
sex with him. He also relied on the contradiction between the statement of the
complainant and the evidence in court as to whether the appellant ever molested her in
the mornings. During her evidence in court, the complainant explained that the appellant
did not molest her in the mornings. At the same time, in the statement, it is stated that he
molested her. From a careful reading of the record, one notes that when the appellant's
legal counsel laid the basis to cross-examine the complainant on her alleged statements,
the complainant was not asked whether she was asked to confirm the correctness of her
statements and whether, having done so, she was asked to sign the two statements.
Instead, the complainant was adamant that the statements were not read back to her
when she gave and signed them. As far as the A1 statement was concerned, when the
court wanted to find out from her if the statement was read back to her after it was taken,
she stated that not on the same day.
[67] As far as the A18 statement is concerned, she stated that it was taken and not
read back to her. It was only read back to her by the prosecutor during consultation in
preparation for the hearing. She also cannot read the handwriting of the officer who wrote
the statements. During consultation with the prosecutor, the contents of the statements
were explained to her. This, in my view, explains the reason why the forced oral sex is
not in her statement. It also explains the alleged contradiction of her evidence in court
and her statement that the appellant did not abuse her in the morning.
28
[68] Notwithstanding this finding, I am of the opinion that it is necessary to remind
ourselves that the purpose of a police statement is to obtain details of an offence so that
a decision can be made on whether or not to institute a prosecution. The statement of a
witness is not intended to be a precursor to that witness' evidence in court.
[69] In S v Mafaladiso en Andere,
9 the Supreme Court of Appeal set out the approach
to be adopted in cases where there is a contradiction between the police statement of a
witness and the evidence of such witness or where there is no reference in a police
statement to what can be an essential aspect of that witness' testimony as is the case in
this matter. Among others, the court noted that the mere fact that there are self -
contradictions must be approached with caution by a court. Importantly, the court noted
that it must be kept in mind that not every error by a witness and not every contradiction
or deviation affects the credibility of a witness. Thus, the contradictory versions must be
considered and evaluated on a holistic basis. Thus, the contradictory versions must be
considered and ev aluated on a holistic basis. The court must weigh up the previous
statement against the viva voce evidence, consider all the evidence, and decide whether
it is reliable or not and whether the truth has been told despite any shortcomings.
[70] In the present matter, the complainant has given a plausible explanation of the
differences. She was adamant in court that the appellant did not molest her in the
morning. Moreover, she was not asked in court if she confirmed the correctness of the
statement. The discrepancy, in my view, has been adequately explained. She explained
9 2003 (1) SACR 583 (SCA) at 593E - 594H.
29
that the appellant forced her to have oral sex with him. I have no reason to reject the
evidence of the complainant. Although she could not remember specific dates, the
complainant was truthful and candid with the court. She did not implicate the appellant
falsely. She confirmed the appellant's version that he would creep into her bed in the
mornings. According to her, nothing happened in the mornings. If indeed she wanted to
implicate the applicant falsely, she could have done so when the appellant crept into her
bed in the morning, but she did not.
[71] On the other hand, the appellant raised a bare denial. He disputed all the
allegations levelled against him. He, however, confirms the version of the complainant
that he would creep into her bed in the mornings. The appellant further confirmed th e
version of the complainant that they would sometimes watch television as a family.
According to him, during sleeping time, he would sleep at one end, the complainant would
sleep at the other, and the complainant's mother would sleep in the middle.
[72] In my view, the bare denial of the appellant is implausible for the following reasons:
The appellant's evidence was that he had a perfect relationship with the complainant.
They had pillow fights and, at times, tickle fights. The appellant assisted the complainant
with homework and school projects. The relationship appeared to be that of father and
daughter. The appellant painted a picture of a wonderful relationship. The complainant
even bought him a Father's Day card.
30
[73] Surprisingly, in June 2018, while the complainant and her mother were still living
together with the appellant, the complainant raised the question of sexual abuse with Mr
G[...]. She told Mr G[...] that the appellant was inappropriately touching her a lot. This
caused the complainant to be reserved and emotionally withdrawn at school. In my view,
this piece of evidence defeats the version that the appellant proffered. If indeed,
everything was pleasant and h unky-dory as the appellant suggests, it is highly strange
that the complainant would implicate him to her friend Mr G[...].
[74] In my judgment , the complainant reported her ordeal to Mr G[...] because the
appellant was sexually abusing her. Undoubtedly, the complainant could not have
reported to Mr G[...] that the appellant, who was of great help to her with her schoolwork,
was abusing her if there was nothing that the appellant was doing to her. She reported to
him because she was being abused by the person she trusted. In my view, the
complainant was a candid and truthful witness, and the record certainly lends itself to that
conclusion. It cannot be suggested that the complainant was influenced to make a case
against the appellant.
[75] Regarding the appeal on the sentence, it is trite law that sentencing is pre-
eminently a matter for the discretion of the trial court. The power of a court of appeal to
interfere with a sentence imposed by the trial court is circumscribed. Interference wit h a
sentence on appeal is not justified in the absence of a material misdirection or irregularity
or unless the sentence imposed is so startlingly inappropriate as to create a sense of
31
shock.10 Thus, an appeal court will only interfere with a sentence on appeal if it appears
that the trial court has exercised its discretion improperly or unreasonably.11
[76] In the present matter, the essential enquiry is whether the court a quo in imposing
the sentence of life imprisonment had exercised its discretion properly and judicially. It
was argued that the trial court failed to consider the appellant's personal circumstances
properly but merely paid lip service to his circumstances. It was also argued that the trial
court did not consider the Correctional Officer's report, which recommended correctional
supervision.
[77] In my opinion, the court a quo misdirected itself on sentence. The following
reasons bear out this finding. The appellant was convicted of three counts of rape that
attracted life sentences. Upon convicting the appellant on these counts, the court a quo
was bound to impose the prescribed sentence unless there were substantial and
compelling circumstances to deviate from that sentence. The trial court found that since
rehabilitation of the appellant is possible, this should solely count as a substantial and
compelling factor to deviate from the prescribed sentence. I find the reason advanced by
the trial court very flimsy and insubstantial to warrant a deviation from the prescribed
sentence. Notwithstanding, the State did not challenge the sentence imposed by the court
a quo.
10 S v Moosajee [1999] 2 All SA 353 (A), para 8.
11 S v Gerber [1998] 4 All SA 315 (NC).
32
[78] Crucially, despite its finding that there were substantial and compelling
circumstances warranting a deviation from the prescribed sentence, the trial court still
imposed a sentence of life imprisonment in terms of section 51(1) of the CLAA. In my
view, in doing so, the court below erred. The jurisdiction of the Regional Court to impose
a life sentence is circumscribed in section 51(1) of the CLAA. Once the court found
substantial and compelling circumstances as envisaged in section 51(3) of the CLAA, it
could not impose a sentence of life imprisonment in terms of section 51(1) of the Act.
Instead, it was at large to exercise its discretion and impose a lesser sentence. The need
to impose a lesser sentence was no longer under the prescribed minimum sentencing
mechanism. In a nutshell, the court a quo could not deviate from the prescribed minimum
sentence due to the existence of substantial and compelling circumstances warranting
such deviation and still impose the prescribed sentence.
[79] What compounds the conundrum, in this case, is that the court a quo imposed a
globular sentence in respect of the three rape charges. The court took the three counts
of rape together for purposes of sentence and imposed one sentence of life imprisonment.
While it is widely accepted that there is no law which prohibits or provides for the
imposition of a globular sentence, our courts have on various occasions expressed some
misgivings about such sentences particularly where an accused was convicted afte r
having pleaded not guilty but subsequently having the conviction on some counts set
aside on appeal.
12
12 S v Rantlai (1178/2016) [2017] ZASCA 106 (13 September 2017) at para 9; S v Young 1977 (1) SA
602 (A) at 610E.
33
[80] Notwithstanding, in S v Rantlai (supra), the Supreme Court of Appeal noted that
there is no absolute bar against imposing globular sentences. However, there seems to
be some unanimity in our courts that, depending on the facts of each case, it can be
effectively used in exceptional circumstances .
13 This is because there will be
circumstances where, for instance, it can be used to ameliorate the effect of sentences
that may appear shockingly inappropriate.
[81] As discussed above, the court a quo erred in imposing a life sentence despite its
finding in terms of section 51(3) of the CLAA. Such misdirection demands the intervention
of this court. Consequently, this Court faces the duty of imposing a sentence on the
appellant. In considering an appropriate sentence, I must mention that the appellant's
personal circumstances were set out in detail before the trial court. They are not repeated
in detail in this judgment to avoid prolixity.
[82] At the hearing of the matter, the appellant was 39 years old, unmarried, and had
no children or dependents. He was born in Bloemfontein in 1983 and is the eldest of three
children. He was diagnosed with encephalitis, which is an inflammation of the active
tissues of the brain caused by an inflammation or an auto immune response. Due t o his
condition, the appellant had to attend a special need school. His parents divorced while
he was in Grade 10, and his father moved out of the common home. As a result, the
appellant and his sister had to leave school to seek employment to financially assist in
maintaining the household and his mother, who was unemployed.
13 S v Nkosi 1965 (2) SA 414 (C) at 416C.
34
[83] Later, the appellant registered for a course in computer studies at Dynamic
Computer Training Centre in Tygervalley, where he completed his course and is a
certified professional. The appellant was previously employed by Royal Gutters for two to
three years. He has no contact with his father. The appellant supported his mother as well
as the complainant’s mother. He had no previous convictions. The appellant previously
lived at Parow but relocated to live with his mother on a farm in Klapmuts. He was
unemployed for a year before his arrest. The appellant has a good relationship with his
mother. The Probation Officer reported that the appellant’s income formed a significant
part of the family’s day to day income. The Probation O fficer also reported that the
appellant is a pillar of support to his 71-year-old mother.
[84] Having considered the personal circumstances of the appellant discussed above,
and in the various reports presented as evidence, the interest of society, the seriousness
of the crimes committed by the appellant, the impact that this ordeal had on the
complainant, I am of the view that there are substantial and compelling circumstances for
the court to deviate from the prescribed minimum sentence. I am further of the view that
the imposition of three life sentences in the present case would be startling ly and
disturbingly inappropriate. Moreover, the sentence that the court should impose should
be a sentence that will be deterrent, retributive and, at the same time, reformative.
[85] Lastly, one of the grounds of appeal is that the court a quo did not consider
correctional supervision as a sentencing option. In my view, correctional supervision as
a sentencing option would be improper and disproportionate to the gravity and severity of
35
the offence the appellant was convicted of. 14 It must be stressed that the appellant
invaded the dignity and the privacy of the complainant. As the trial court found, this ordeal
left the complainant with emotional scars that she will live with for the rest of her life. To
this end, we need to remind ourselves that our Constitution, as well as international treaty
obligations, require the government and the courts to take special steps to protect the
public in general and women in particular against violent crime.
15 Hence, section 12(1)(c)
of the Constitution guarantees everyone the right to freedom and security which include
the right to be free from all forms of violence from either public or private sources.
[86] Given all this these considerations, I am of the view that a sentence of
imprisonment of 18 years for each rape count (counts 6, 7, and 8) is appropriate in the
circumstances. To ameliorate the cumulative severity of the sentence, I would propose
that the sentence of 18 years imprisonment in respect of counts 7 and 8 and the prison
sentence imposed by the trial court in respect of the sexual assault counts (counts 1, 2,
3, 4, and 5) be ordered to run concurrently with the sentence in count 6.
Order
[87] In the result, I would propose the following order.
87.1 That the appeal on conviction be dismissed.
87.2 The sentence imposed by the trial court in respect of count s 1, 2, 3, 4 and 5 be
confirmed.
14 S v Mngoma 2009 (1) SACR 435 (E).
15 S v Abrahams 2002 (1) SACR 116 (SCA) para 30.
36
87.3 That the sentence imposed in respect of count s 6, 7, and 8 be set aside and be
replaced with the following sentence:
87.4 The appellant is sentenced to 18 years imprisonment in respect of count 6,
87.5 18 years imprisonment in respect of count 7, and
87.6 18 years imprisonment in respect of count 8. In terms of section 280(2) of the CPA,
the sentence of imprisonment in respect of count 1, 2, 3, 4, 5, 7 and 8 would run
concurrently with the sentence of imprisonment in count 6.
87.7 The appellant is effectively sentenced to serve a term of 18 years imprisonment.
87.8 In terms of section 28 2 of the CPA, the sentence imposed above is antedated to
30 March 2022.
_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
I agree and it so ordered:
___________________________
KUSEVITSKY D
JUDGE OF THE HIGH COURT
37
APPEARANCES
For the Appellant: Mr Scholzel
Instructed by: Mia Attorneys
Suit 1, Saratoga Court
Kenilworth
Cape Town
For the Respondent (State): Mr Koti
Instructed by: Director of Public Prosecutions
115 Buitengracht Street
Cape Town