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[2023] ZAKZPHC 3
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Mhlongo v S (AR 356/21) [2023] ZAKZPHC 3 (20 January 2023)
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
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
Case
No: AR 356/21
In
the matter between
:
SANELE
ROBERT
MHLONGO
Appellant
and
THE
STATE
Respondent
ORDER
On
appeal from:
the
Durban
Regiona
l
Magistrates
'
Court (sitting
as court a
quo)
:
(1)
The appeal
is
dismissed
.
(2)
The
sentence
of
life
imprisonment
by
the
court
a
quo
is
confirmed
.
JUDGMENT
Ngqanda
AJ (Balton J concurring):
Introduction
[1]
On 19
May
2021
,
the appe
ll
ant
was convicted of
one
count of rape
of
a
minor
by
the Durban
Regiona
l
Magistrates
'
Court
.
The
appe
ll
ant
was
found
gui
lt
y
of contravening
the provisions
of s 3,
read
with ss
1
,
56
,
57
,
58
,
59 and 60
of
the
Criminal
Law
(Sexual
Offences and Related
Matters
Act) Amendment
Act 32 of 2007
and
read w
it
h
s 51 of Part 1 and Schedu
l
e
2 of
the
Criminal
Law
Amendment Act
105 of
1997
("the
Act
"
)
.
[2]
The appellant
was subsequently sentenced
to
life imprisonment
on
26
May
2021
and in addition was
declared
unfit to
possess
a
firearm in
terms of s
103
of
the
Firearms
Control Act 60 of 2000
.
[3]
The
appe
ll
ant
'
s
appeal
is
precipitated
by
his
automatic
right
to appeal
that
applies to
sentences of life imprisonment. As a consequence
,
the
appellant
is
appea
l
ing
only
the
sentence
imp
osed
by
the
trial
court
.
Thus
,
this
court
is
called
upon
to
consider whether the sentence
imposed
by
the
trial
court
is
appropriate
or
not.
[4]
The appe
ll
ant
was at all material
times
l
egally
represented
during his trial
and
had pleaded not guilty
to
the
one count
of
rape he
was
charged with.
Factual background
[5]
The
comp
l
ainant
SM
,
was
seven years old at
the
time
of
the
sexual assault
in
2017
and was
in
grade one
.
She was
resident
at
an
informal
sett
l
ement
ca
ll
ed
Mathinini
,
in
Chesterville
,
Durban
,
KwaZulu-Natal
with
her
mother
,
two
sisters and other relatives
.
[6]
According
to SM
,
on
03
April 2017
,
she
was playing with
her
friends in
one
of the passages of
the
info
r
mal
settlement
[1]
when
they
decided
to
go
looking
for
another friend
.
As
she and her friends proceeded
to
look for the
other
fr
i
end
,
she
noticed
that
the
appellant
,
whom
she referred to as
'
Uncle
Sanele
'
was
following
them
.
She
recalled
that
there
was
an
aunt
(whom
subsequently
became
known
to
her)
who
had
enquired
as
to
why
'Uncle Sanele
'
was
following
them
.
The
question posed
by
the aunt was
unanswered
and
the appellant h
im
se
lf
did
not
respond.
[7]
SM
testified
that the
appellant
then
ca
lled
h
er
and
in
structed
her
to
go to his
room
and fetch his cigarettes to which she obliged.
There
was nothing unusual
about
the
appellant
cal
lin
g
and sending SM
to
his room
as he
a
l
so
testified
that
she
would
be
called and sent
to
the
shops by
the woman
he
was staying
with
,
whom SM
identified
as
"au
nt
Maph
i
".
SM, also
testified
that
she
had
known the
appellant for some
time.
What is
clear
and also
admitted by
the
appe
ll
ant
is that
SM
was familiar
w
ith
being called
to
or
going to his house from time
to
time
.
[8]
According
to
SM
,
when
she
entered
the
appellant's room
to
take
the
cigarettes as
instructed
,
he quickly
closed and
locked
the
door
with
her inside
.
At
this
point
,
SM was
separated from her friends and was alone with
the
appe
ll
ant
in the
room
.
As SM
reach
ed
out for the
cigarettes
,
the
appellant
pushed her onto the bed, removed her pants and underwear.
The appellant
made SM to lie facing
upwards
and pressed
hard on
her
chest whilst
tak
i
ng
off
his
pants
.
[9]
SM
testified
that she cried
but
the
appellant
covered
her
mouth
with
his
hand and
proceeded to
undr
ess
himse
lf
,
cl
imb
ed
on top of
her
and
in
se
rted
his
penis into
her
vagina
and sexually assaulted
her
.
When the
ordeal was over
the
appellant gave
a crying SM, money in
the
form a coin
,
whi
c
h
she
de
sc
ribed
as R4 and R5.
SM admitted during her
evide
nce
that at
that
time
she
did
not know the
value
of money
.
Nonetheless
,
the appellant
gave SM
money
in
the
form
of a co
in
after the
assault which she threw away
upon
the
appellant
opening
the
door
.
[10]
As
SM was
lea
v
ing
the
appellant's room,
the
appellant
exited
first
and
she followed
.
At
this
stage
,
she
was seen by Ms
N
[....]
M
[....]
("Ms
M [....]")
[2]
who
lives
in
a
room directly opposite
the
appellant's
,
separated
by a
passage
.
Ms
M [....]
cal
led
SM
and asked
her
what
had
happ
e
ned
at
the
appe
ll
ant
'
s
h
o
us
e
to
which she proceeded
to
inform her
of
what
had
occurred.
M
s
M
[....]
is
the one who
informed
SM
'
s
mother
of
what
had
happened
at
the appellant's
house
.
SM
testified
that
she was
terrified
to inform her mother
of
what
had
happened
because
she was going
to
get
a
hiding
as
a consequence.
[11]
It
is
common cause
that
the
appellant
was
later that
day assaulted
by
community
members
before
being arrested
by members
of
the
South
African Police Service (
"
SAPS
"
)
.
SM was able
to
point
out
the
appellant
to
the
police
and
was
later
taken
to
the
doctor for an
examination.
Issue
for determination
[12]
The appellant
has
elected
to
appeal
only
the
sentence
imposed
,
that
of
life
imprisonment
by the trial court.
What
this
court is
called
to
consider is
whether the sentence imposed
is
just.
The
appellant
whilst
accepting
that
rape is
a
crime of utmost gravity and that it is a repulsive offence
,
he
submits
that
there
are
substantial and compelling circumstances
justifying
the imposition of
a
lesser
sentence
than
life
imprisonment.
[13]
The
factors
that
the
appellant
cites
as
compelling
and
justifying
a
lesser
sentence are
as follows
:
(a)
He was 45
years old at the time of sentence
with
no
children;
(b)
He was
not
married
;
(c)
He
was
a productive member of society
,
selling
plastics
and
earning R60 per day
;
(d)
He
was
a
good candidate
for
rehabilitation
due
to
being
a
first
offender
;
(e)
He
had
no
pending
cases
against
him
;
(f)
He
tendered
admissions
in
court
in
terms of s 220
of the Criminal
Procedure
Act 51 of 1977
(
"
the
CPA
"
)
,
thus
curtailing the
proceedings
;
(g)
That
SM
did
not
sustain
any
extra
genital
injuries
and
the
gynaecological
examination revealed
no
injuries
;
(h)
He co-operated
with
the
police
and
attended to
all
his
court
appearances even when
he
was on
bail
;
and that
(i)
He was
assaulted severely by
the
community
prior
to
being
arrested.
[14]
The appellant subm
i
ts
that the trial court
misdirected
itself
in over
emphasising the seriousness of
th
e
offence and fai
l
ed
to str
i
ke
a judicio
u
s
ba
l
ance
when considering all the sentencing
factors.
It
i
s
for
this
reason that
the
appellant
seeks
this
court
'
s
intervention as the sentence
imposed
is
i
n
disproportionate
to his
personal
circumstances
,
interests of
society and the gravity of
the
offence.
Summary
of evidence led
[15]
What
follows
is a
summary
of
ev
id
ence
of four
witnesses
out
of
the
six witnesses
that were called
to
testify on
beha
lf
of
th
e
State.
Evidence
of Dr Naidoo
[16]
The
State ca
ll
ed
Dr Santhree Sagren Naidoo
,
who
testified
on
the contents of the J88 report
[3]
dated
04 April 2017 wh
i
ch
was comp
l
eted
by Dr S Antoniad
i
s,
who had examined SM a day after the sexual assau
l
t.
Unfortunately
,
Dr
Antoniadis retired
in
2018
and all attempts to contact and serve
him
with
a subpoena proved
futile
.
[17]
The
gynaeco
l
ogical
exam
in
ation
of
SM
revealed
that
there
were
no
extra
genital injuries and no vagina
l
digital
examination was attempted. The
hymeneal
diameter was
found to be seven millimetres transverse and vertical. The
exam
in
at
i
on
was concluded to be normal. On ana
l
examination
,
it was
recorded
that
the rectal and anal examination could not support or refute
allegations of rectal and or anal penetration. When Dr Na
i
doo
was quest
i
oned
on his
understanding
and
interpretation
of the
findings, in particular the examination be
in
g
recorded as
normal
,
he conceded
that a finding that does not refute or support any a
ll
egations
of ge
n
ita
l
and or ana
l
penetration
i
s
normal in a
fair percentage of ch
il
dren
who
have
been
sexua
ll
y
abused.
[18]
When probed
further
on possib
l
e
reasons
why
a ch
il
d
that
had
a
ll
egedly
been sexua
ll
y
abused wou
ld
on examination
be
found to be
normal
,
Dr
Naidoo
conceded that
one of the reasons could be that
the
child
had
been groomed.
H
e
exp
l
ained
the grooming could consist of
i
nitial
non-contact
abuse fo
ll
owed
by contact abuse and in some
instances
with
the
use
of
lu
br
i
cants
to
groom
a
ch
il
d
into
having
sexual
intercourse
.
The result of
grooming
is
that when a
child
is
ultimately
penetrated
,
on
medical examination
,
no injur
i
es
would be visible for one to see.
[19]
When Dr Naidoo
was requested to comment on the findings of the examination despite
SM being examined the following day
,
he remarked
that a normal examination following sexual assault
will
depend on the
nature of
the
abuse and the
nature of the penetration
.
Dr
Naidoo
clarified that
there
is
something called
'
seductive
rape
'
,
where the perpetrator
usually does not want to injure the child and ensures that the child
is not injured
.
Dr
Naidoo
further expounded and held
that
at
times
there
may be
'
intercrural
sex
'
,
which means
that
there
is
rubbing
of
the penis between the thighs and there may be no contact with the
vulva
.
This
kind of assault w
i
ll
leave
no
genital injuries
per
se as the
genital tissues are very vascular and elastic
,
more
particularly the hymeneal tissue
.
Dr Naidoo
concluded his evidence in chief by stating that the hymeneal tissue
in a child of seven years or younger can stretch to
accommodate an
adult erect penis and not show any
injuries.
[20]
On
cross-examination
,
Dr Naidoo was
asked
to
comment on
the
fact that SM
in her evidence stated that the appellant fully penetrated her and
moved up and down and whether that would still result
in no evidence
of penetration on gynaecological examination
,
his response
was that already proffered
in
his evidence
in chief
.
[21]
It
is important that
I
set
out a summary of Dr Naidoo
'
s
evidence because on
e
of
the factors that the appellant wants this court to consider as a
compelling and substantial factor justifying a
lesser
sentence
is that SM did not sustain any genital injuries
.
Counsel
for the appellant attempted to argue the point but hastily retreated
on realisation of th
e
danger
in making
s
uch
a submission
.
In
any event there
is
no
merit to the argument counsel for the appellant was attempting to
make as it was held in
Mon
a
geng
v
S,
[4]
that
physical force
is
not
necessarily
used in
rape
and
that
the
most
common
consequences from such an act are mental health and social well
-
being
issues
.
[22]
In
S
v
Nk
aw
u
,
[5]
Plasket
J
considered
the
provisions
contained
ins
51(3)
(aA)(ii)
of
th
e
Act
insofar
as
the
absence
of
serious
phy
s
ical
injuries to the
complainant
were concerned
.
The
subsection
provides
that
when
a court sentences
for
rape
'
an
apparent lack of physical injury to
the
complainant'
shall not be regarded as a substantial and
c
ompelling
circumstance.
When
taking
into
ac
co
unt
the
explanation
provided by
Dr
Naidoo
there
is
no
reason why
this
court should even consider
the
non
-seve
rity
or lack
of
injury
to
SM as a substantial and compelling
factor.
Whilst Majiedt JA in
S
v
Mudau
,
[6]
agreed
with Plasket
J
,
that
the proper
interpretation
of
the
provision
'
does
not preclude a court sentencing for
rape
to
take into consideration the
fact
that
a rape victim has not suffered serious or
permanent
physica
l
injuries
,
a
l
ong
with other relevant factors
,
to
arrive at a just and
proportionate
sentence
'
,
it
has
become
'se
ttled
law that
such
factors need to be
considered
cumu
l
atively
,
and
not individually
'.
[7]
[23]
The distinguishing
factor
in
the
case
of
Mudau
[8]
and
the
present
one
is
that,
in
Mudau
the
court was faced with a J88 form that suggested that some
p
ene
tration
might
have occurred
,
with
the
conclusion
being there was
'no
obvious
evidence suggestive of sexua
l
assault,
but cannot exclude
it
-
specimen
results still pending
'.
The
court in
Mudau
,
noted
that
the
primary
difficulty it was faced with was that there was no victim impact
report before it and
conseq
uent
ly
,
there
was no evidence of the
chi
ld
'
s
ongoing trauma
.
In
this
case
,
there
is
a
victim impact statement which
clearly
states
how
SM
has
been
affected
by
the
rape.
I
am
satisfied with the evidence of Dr Naidoo
,
explaining
the possible
reasons
for
lack of obvious evidence suggestive of
sexual
assault
[9]
on
SM and
I
see no reason why
a
la
ck
of
physical
injurie
s
should
be
co
nsidered
as
a compelling circumstance
in
favour
of
the
appellant.
In
addition
,
a
DNA sample collected
from
a
duvet
bed
cover belonging to
the
appe
ll
a
nt
had
his DNA
and
the
appellant
confirmed
the
admission of
th
e
exhibits
as evidence in terms of s
220
of
the CPA.
Evidence
of Ms N [....] M [....]
[24]
The State
called
Ms
M [....]
who confirmed
that the
appellant
was
known
to
her
and
that
they
were
neighbours
living
in
dwellings
opposite
each
other.
Ms M [....]
recounted the
eve
n
ts
of 03 Apri
l
2017 and
testified that
on arriving home
around
15h30
,
she
observed that
the
appellant's door was closed
,
which was
easy
for her to
notice
because
their houses
were facing
each
other.
She then heard the
sound
of
the
appellant's door being opened and witnessed the appel
l
ant
coming
o
u
t
and standing
at
the doorpost
followed by SM
.
Ms M [....]
then asked the appellant what SM was doing in his house with the door
c
l
osed
to
wh
i
ch
he responded
"
I
have Just
sent
the child to the
shops
",
to which she
asked
"
do
you
close the door when you send
a
child to
the shop
".
The
appellant
failed to
respond
to
the question
posed
.
[25]
According to
Ms M [....]
,
she
noticed
as
she
was
speaking
with
the appellant
,
that his pants
were unz
i
pped
and be
l
t
unbuckled
.
She
called SM
to
her house
and
enquired
what
happened in
the
appellant
'
s
house.
On
probing
,
SM
recounted
,
whilst in a
state (she
was
shaking)
how
the
appellant
sexually
assaulted
her
.
As
Ms
M [....] was
getting
the
account from
SM
,
the
appellant
came
to her
house
and said
"
neighbour
,
could
you plea
s
e
forgive
me
"
to which
she
replied
"
okay
".
The
appellant left
and
returned
again and said
"
neighbour
,
could
you please
forgive
me
.
I
will
give
you
money to buy
a
drink
"
at which
point
,
he
had a R50 note
in h
i
s
hand to which
Ms M [....] responded that
she
also has girl
children
and
cannot
keep
quiet about the incident.
[26]
The
State
called
Ms
Somakah
l
e
,
who was
called
by Ms M [....]
after getting
an
account
from
SM
.
Ms Somakah
l
e
testif
i
ed
that when the
appe
ll
ant
arr
i
ved
at Ms M
[....]
'
s
house the
second time
,
she hid and
was able to hear the
exchange
of
words
between the
appellant
and
Ms M [....]. Ms Somakahle
collaborated
Ms M [....]
'
s
evidence
in
respect
of the
appellant
offering
to
b
u
y
Ms
M [....]
a
drink
to
which
she
responded
she doesn
'
t
want
a
drink. Ms Somakahle
further
confirmed
that
Ms M [....] told the
appe
ll
ant
that she
also
has gir
l
children and
could
not
be
silent about
what
she
was
to
l
d
by
SM.
Eventua
ll
y
,
a
group
of community
members
apprehended
the
appellant
and assaulted
him
before he was
arrested.
[27]
The
appellant
not
on
l
y
attempted to buy the silence of SM by giving her money in
the
form
of
a
coin
bu
t
he
e
n
deavoured
to
buy
Ms
M
[....]
'
s
silence
as
well
by
offering the buy her a drink in exchange
f
or
her forgiveness
and
s
i
lence.
Had it not been for the vigilance of Ms M [....]
,
SM
'
s
sexua
l
assault
would most probably have gone un-noticed by her mother and she may
not have reported the assault to her mother
.
Indeed
,
the
saying t
h
at
"
it
takes
a
village
to raise a
child
"
[10]
rings
true and Ms M [....]
'
s
watchfulness
ensured that the
crime
committed
on
SM d
i
d
not go unpunished
.
Evidence
of appellant
[28]
The
appellant
during his
testimony denied sexually assau
l
ting
SM but admitted to knowing her. According to the appellan
t,
on
the
day in question he was
called
by Ms M [....]
to her house where he found SM
.
Ms M [....]
then proceeded to
enquire
what he had
done to the child and hit SM with an open
h
and
and to
l
d
SM to
repeat
what she had
told her
,
a
contention refuted by both SM and Ms M [....]
.
The appellant
sought to
explain
that he was
accused
of
sexually
assaulting SM
due to a feud he and Ms M [....] had regarding a house as a reason
why she
called
the
community
on him
,
the submission
was far-fetched and rejected by the tr
i
al
court
.
Under
cross-examination
,
the appellant
conceded that Ms M [....] was his immediate neighbour and therefore
,
the
evidence
of Ms M [....]
of having direct
sight
of the
appellant's
house was
supported. The appe
ll
ant
furt
h
er
confirmed
that
SM
had
been to his room
on
numerous
occasions and was at times sent to the shops
.
This of course
cemented the fact
that
the appellant
was in a position of trust with SM
and
she
would not
have thought that t
h
ere
was anything out of
the
ordinary by
being sent to fetch the appe
ll
ant
'
s
ciga
r
ettes
from his room on the day of the incident.
Discussion
on sentence
[29]
In
S
v
Hewitt
,
[11]
the
court
laid
dow
n
the
app
r
oach
to be adopted by t
h
e
appe
ll
ate
court
when
considering
interference
with
a
sentence
imposed by the t
r
ial
court. The
court
held as
follows
:
'
It
is
a
trite
principle of
our
law
that
the
impo
sition
of
sente
n
ce
is
the prerogative
of
the
trial
court
.
An
appellate court
may
not
interfere
with
this
discretion merely because it
would
have
imposed
a
different
sentence
.
In
other
words
,
it
is
not
enough
to
conclude that
its
own
choice
of penalty
would
have
been
an
appropriate
pena
l
ty
.
Something
more
is
required
;
it
must
conclude
that
its
own
choice of penalty
is
the
appropriate pena
l
ty
and
that
the
penalty chosen by the tria
l
court
is
not.
Thus,
the
appellate
court
must
be
satisfied
that
the trial
court
comm
itt
ed
a
misdirection
of
such a
nature
,
degree
and seriousness that shows that it did not exercise
its
sentencing
discretion
at
all or exercised
i
t
improperly
or
unreasonab
l
y
w
h
en
imposing
it.
So
,
interference
is
justified only where
there
exists
a
"
striking
"
or
"
start
lin
g
"
or
"
disturbing
"
disparity
between
the
trial
court's
sentence and
that
whic
h
the
appellate
court wou
l
d
have
imposed
.
And
in such instances the
trial
court
'
s
discretion
is regarded
as
having
been
unreasonably
exercised
.'
[12]
[30]
I
am
satisfied that
the
trial
court correctly
found
that there
were
no compel
l
ing
circumstances
presented
by
the
appellant
that
would
have
justified
a
deviation
from
the
minimum
sentence
as
prescribed
by Act. The
crime
com
m
itted
by
the
appe
ll
ant
on
SM
is one deserving of the
requisite
punishment
as set
down
by
law. The rape of a child
,
especially
a chi
l
d
under
the
age
of
16
years
is a
heinous
act
that
destroys not
only
the
child
'
s
innocence
but leaves
emotio
n
al
scars
and
the
stigma
of
having
been
humiliated and violated for the rest of his or her
life
.
[13]
[31]
The victim
impact statement completed
by SM
when
she
was
eight years
old and dated 28 March 2018 was
handed
in
as evidence
by
consent
and in that statement
,
SM
drew
two
female
figures
and
in
the
first
p
i
c
tur
e
,
the
girl was
depicted
as
happy and in the second
picture
the
girl
had
tears
rolling
down
her
face
.
SM interpreted
the
drawings
as
herself
,
the first
im
age
of being
,
happy
and
not afraid and playing
with
her
fr
i
ends
prior
to
the
sexua
l
assau
l
t.
The second
drawing
she
exp
l
ained
it as a young girl crying
,
sad
,
hurt
and
did not
want
to play
anymore
.
From
the
victim
impact statement
,
it is
clear
that
SM
suffered immensely
from
the sexual
assau
l
t
and has been
l
eft
scarred forever
.
No
child
s
h
ould
ever be st
rip
ped
of their
innoce
n
ce
and freedom of childhood which involves care-free playing with
friends
.
[32]
When the tria
l
court was
considering all factors relat
i
ng
to sentencing
,
it remarked
that the appellant despite there being overwhelming ev
i
dence
against him
,
showed no
remorse for the wrongful act he committed
.
The court
further commented that instead
,
the appellant
plunged the court into a fu
l
l
tria
l
for
"
him
to say almost anything he wanted
".
[33]
I am of the view that the
r
e
were no circumstances, substantial and compel
l
ing
to justify the departure from the sentence
i
mposed
by t
h
e
t
ria
l
court
.
[14]
I
t
was he
l
d
in
Moyo
v S
[15]
,
that
courts have a duty to protect children younger t
h
an
t
en
yea
r
s
and that it cannot be
'
business
as usual
'
when
it comes to t
h
eir
protection
.
[16]
T
h
e
younger the child and further away from the age of 16 years
,
the
chances of substantia
l
and
compelling circumstances being found become remote and
f
ar
-
fetched
.
Opperman
AJ dismissed the appea
l
against
the sentence of
l
ife
impr
i
sonment
in
Moyo
and
concluded that she was unable to find any misdirection by the trial
court in respect of the sentence and further he
l
d
that
'
specified
sentences are not to be departed from lightly or for flimsy reasons
and that speculative hypothesis favourable to the
offender
,
undue
sympathy
,
aversion
to imp
r
isoning
first offenders are to be excluded
'
.
[17]
[34]
Rape on its own is a bruta
l
crime
but the rape of a child
,
particular
l
y
a child under the age of 16 years
[18]
is
not only humi
li
ating
,
degrad
i
ng
,
traumatic
and confusing to the child but also strips the child of her dignity
and the right to be protected by society and the community
in which
she
l
ives
.
The
appellant was trusted by SM and the appellant was a member of a
communi
t
y
she grew up in
.
The
respect afforded by SM to the appellant is evidenced by her referring
to him as
"
Uncle
Sanele
"
during
the trial. The appe
ll
ant
,
in
turn betrayed the trust and respect afforded to him by SM by se
x
ually
assault
i
ng
her
.
[35)
In
S
v Jansen
,
[19]
the
court held that rape of a child is appalling and a perverse abuse of
male power
.
It
was further held that:
'
It
is utterly
terrifying
that
we live in a
society
where
children
cannot play
in
the
st
r
eets
in
any
safety
;
where
children
a
re
unable to grow up
in
the
kind
of climate which
they
should
be able
to
demand in
any
decent
society
,
namely
in
freedom
and without
fear
.
In
short
,
our
chi
ldr
en
must
be
able
to
deve
l
op
their
liv
es
in an atmosphere
wh
i
ch
behoves
any
society
which
aspires to be an open and democratic one
based
on
freedom
,
dign
it
y
and equality
,
the
very
touchstones
of our
Consti
tution
.'
[20]
[36]
For
all
the
aforgoing
reasons
,
I am not
persuaded that the trial
court
erred
in
finding that there
were
no
substantia
l
and compelling
circumsta
n
ces
that would
have
required
it to deviate
from
the
sentence of
lif
e
imprisonment
for
the
rape of a
chi
ld
under
the
age of
16
.
As a
consequence
,
the appeal
must fail.
Order
[37]
I
accordingly
,
make
the
following
order
:
(1)
The appeal
is
dismissed
.
(2)
The
sentence
of
life
imprisonment
by
the
court
a
quo
is
confirmed
.
Ngqanda
AJ
Balton
J
Appearances
Counsel
for Appellant
:
Mr
P Mkhumbuzi
Instructed
by
:
Durban
Justice
Centre
Counsel
for Respondent
:
Mr
K
.
M
Shah
Instructed
by
:
The
Director
of
Public Prosecutions
Date
of Hearing
:
28
October 2022
Date
of
Judgement
:
20
January
2023
Delivered
electronically:
The
judgment was
handed
down
electronically
by circulation to the parties' legal representatives by emai
l
and
released
to
SAFLII. The
date for hand down is deemed to be 20
January
2023
.
[1]
The
informal settlement comprises of corrugated iron shacks (rooms)
lined up in rows, close to each other, opposite facing and
divided
by passages.
[2]
Ms
N [....] M [....] also known as Lisa's mom was called to testify as
a witness on behalf of the State.
[3]
The
J88 form was admitted as evidence and marked Exhibit 'C'.
[4]
Monageng
v
S
(2009]
1 All SA 237
(SCA) para 25.
[5]
S
v Nkawu
2009
(2) SACR 407
(ECG) para 14.
[6]
S
v Mudau
2013
JDR 0938 (SCA).
[7]
Ibid
para 26.
[8]
Ibid
paras 6, 21 and 25.
[9]
In
S
v MM
2012
(2) SACR 18
(SCA) para 24, the court held, wherever there is an
issue about the fact of the rape, the doctor should be called as a
witness,
certainly whenever the implications of the doctor's
observations are unclear, the doctor should be called to explain
those observations
and to guide the court on the correct inference
to be drawn from them.
[10]
The
quote, "it takes a village to raise a child" is an African
Proverb meaning: an entire community of people must provide
for and
interact positively with children for the children to experience and
grow in a safe healthy environment. See: RC v HC
2022 (4) SA 308
(GJ) para 62
[11]
Sv
Hewitt
2017
(1) SACR 309 (SCA).
[12]
Ibid
para 8.
[13]
Director
of Public Prosecutions, Grahamstown v Peli
2018
(2) SACR 1
(SCA) para 11.
[14]
R
v Ohlumayo and Another
1948
(2) SA 677 (A).
[15]
Moyo
v S
(A435/2013)
[2014] ZAGPJHC 204 (4 April 2014).
[16]
Ibid
para 58.
[17]
Ibid
para 62.
[18]
Director
of Public Prosecutions, Grahamstown v Peli
above
fn 13 para 11.
[19]
S
v Jansen
1999
(2) SACR 368 (C).
[20]
Ibid
at 378i-379a.