IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.:A228/2021
In the matter between:
SIKHUMBUZO MAGOLOZA Appellant
and
THE STATE Respondent
JUDGMENT DELIVERED ELECTRONICALLY ON 18 JUNE 2024
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] Regrettably, this Court is called upon, once again, to dete rmine a matter
involving the rape of a minor child by a trusted adult person. This is an appeal against
the conviction and sentence of the appellant by the Parow Regional Court, where the
appellant was found guilty of two counts of rape against the same minor child , and
was sentenced to life imprisonment , declared unfit to possess a firearm, and his name
was to be included in the national register for sex offenders.
2
[2] The appellant was charged with contravening section 3 of the Criminal Law
Amendment Act (Sexual Offences and Related Matters) 32 of 2007 ( “the Sexual
Offences Act”), read with certain provisions of the Criminal Procedure Act and section
51, schedule 2 Part I of the Criminal Law Amendment Act 105 of 1997 (“the CLAA”).
It was alleged that during 2016 at Delft in the Western Cape he unlawfully and
intentionally committed an act of sexual penetration with the 10-year old complainant
by firstly, inserting his penis into her vagina, and secondly inserting his fingers into
her vagina on more than one occasion, both whilst she was not of age to give consent.
The two counts were taken together for purposes of sentencing by the Magistrate.
[3] The complainant ’s case was that , during December 2016, whilst visiting her
grandmother who was in a romantic relationship with the appellant, the appellant
raped her on two different occasions. On the first occasion which was on 16
December 2016, he picked her up from the floor where she was sleeping in the same
room as her grandmother, placed her on a chair and penetrated her with his penis .
Thereafter, he warned her , whilst holding a knife , not to tell anyone otherwise he
would kill everyone in the house. On the second occasion, s till during December
2016, the appellant placed her on a chair and inserted his fingers inside her vagina,
and again warned her not to tell anyone about the incident whilst again wielding a
knife at her.
[4] It wa s only during March 2017, whilst the complainant was at school that a
problem was detected by adults . The complainant reported at the s chool’s sick bay,
citing difficulty with her flow of urine which was accompanied by a burning sensation
and abdominal pain. A teacher was called in, and she in turn reported the matter to the
complainant’s father, telephonically. The complainant’s father reported the matter to
the mother, who took the complainant to a day hospital. It was there that the
complainant reluctantly re vealed that a rape had taken place, first to the attendant
nurse whilst her mother was outside the consultation room, and later in the presence of
her mother when the latter returned to the consultation room . When she revealed to
her mother that she had been raped, the complainant stated that it was by the
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appellant. Tests conducted by the nurse confirmed that the minor had been penetrated.
I return to the medical evidence in due course.
B. RELEV ANT LAW ON APPEAL
[5] The law is settled that an appeal court may only interfere with the decision of a
trial court if it is established that there was a material misdirection in respect of facts
and/or law. 1 In the absence of demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct and will only be disregarded if the
recorded evidence shows them to be clearly wrong.
[6] Similarly, an appellate court’s power to interfere with sentences imposed by
courts below is circumscribed. 2 It can only do so where there has been an irregularity
that results in a failure of justice; 3 and the court below misdirected itself to such an
extent that its decision on sentence is vitiated. 4 Ultimately, there must be a material
misdirection by the trial court.5
[7] In S v Malgas6 it was stated that, even in the absence of material misdirection,
an appellate court may yet be justified in interfering with the sentence imposed by the
trial court when the disparity between the sentence of the trial court and the sentence
which the appellate court would have imposed is so marked that it can properly be
described as “shocking”, “startling” or “disturbingly inappropriate”. This standard has
1 S v Francis 1991 (1) SACR 198 (A) at 198J-199A.
2 S v Bogaards [2012] ZACC 23; 2012 BCLR 1261 (CC); 2013 (1) SACR 1 (CC) para 41; R v Dhlumayo and
another 1948 (2) SA 677 (A); S v Pieters 1987 (3) SA 717 (A) at 727; See also S v Salzwedel and Others 1999
(2) SACR 586 (SCA) at para 10.
3 S v Jaipal [2005] ZACC 1; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC) at para 39 and R v
Solomons 1959 (2) SA 352 (AD) at 366C.
4 Anderson above n 37 at 495D and Kruger Hiemstra’ s Criminal Procedure Service Issue 5 (LexisNexis, Cape
Town, 2012) (Hiemstra) at 30-49 to 30-50 for a full discussion on misdirection.
5 See S v Brand 1998 (1) SACR 296 (C) at 303 E-J.
6 S v Malgas [2001] ZASCA 30; [2001] 3 All SA 220 (A) (19 March 2001) para 12.
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been articulated differently in several cases, including the standard of whether the
sentence “creates a sense of shock”. Ultimately, the question is whether the court
could reasonably have imposed the sentence that it did.7
[8] To reach an appropriate sentence, a court is duty -bound to consider the nature
and the seriousness of the offence that the accused has been found guilty of, the
personal circumstances of the accused as well as the interests of society - what is often
referred to as the triad of considerations. 8 Closely allied to these considerations is the
impact of the crime on the victims.
[9] It goes without saying that each case must be adjudicated on its own facts and
that no two cases are the same. 9 It is incumbent upon a court in every case, before it
imposes a prescribed sentence, to assess, upon a consideration of all the circumstances
whether the sentence is proportionate to the particular offence. 10 Punishment imposed
by a court should fit the criminal, as well as the crime and be fair to society and
blended with the measure of mercy11.
[10] A court is also enjoined to take into consideration the main purposes of
punishment, namely retribution, deterrence, prevention and rehabilitation. All these
must be accorded due weight in any sentence. As the SCA has stated in S v RO and
Another12 :
“Sentencing is about achieving the right balance or in more high -
flown terms, proportionality. The elements at play are the crime,
the offender, the interests of society with different nuance,
prevention, retribution, reformation and deterrence. Invariably
7 See for example S v Sadler 2000 (1) SACR 331 (SCA) at para 8, and S v Bolus and Another 1966
(4) SA 575 (AD) at 581E-G.
8 S v Zinn 1969 (2) SA 537 (A) at 540G.
9 Asmal v S para 7.
10 S v Vilakazi 2009 (1) SACR 552 (SCA) para 15. Opperman v S [2010] 4 All SA 267 (SCA) at 278 para 30.
11 S v Rabie 1975 (4) SA 855 (A).
12 S v RO and Another 2000 (2) SACR 248 (SCA) at paragraph 30. See also Opperman v S.
5
there are overlaps that render the process unscientific, even a
proper exercise of the judicial function allows reasonable people
to arrive at different conclusions.”
C. GROUNDS OF APPEAL
[11] The appellant’s main ground of appeal relates to the medical evidence. First, he
complains that the nurse, who testified at the trial, did not submit a detailed report; nor
was there forensic evidence in respect of a swab test that was obtained from the
appellant.
[12] The nurse had completed a J88 report on the day that she examined the
complainant, which was an exhibit at the trial, and certain observations were recorded
therein, but it is correct that no conclusions were recorded in the report. She explained
when she gave e vidence that this was an error , as she thought she had recorded her
conclusions. The J88 report, however, did record the findings of the gynaecological
examinations made by the nurse on that day , which she confirmed were true . In the
first place, she noted a red, bruised spot on the inner aspect of the complainant’s labia
minora. Secondly, she noted that the hymen, which is described as annular in
configuration, was “too wide open”, which was also described as “so wide open that
[she] did not need to touch it during examination ”, and “could see deep inside ”,
which she testified was inconsistent with the complainant’s age and maturity range . In
addition, there was a missing membrane noted in the hymen.
[13] The nurse further testified that the complainant was referred with abdominal
pains, vaginal discharge and a burning sensation when urinat ing. She explained that
when there is vaginal discharge present, indicating an infection, children have a
tendency to scratch themselves because of the itchiness caused by it . Her op inion
therefore was that the bruising was a result of the minor scratching herself. Although
there was no detailed conclusion noted in the J88 , the nurse testified that the findings
she noted in the J88 are consistent with vaginal penetration by a blunt object.
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[14] It was suggested to the nurse during cross examination that, if the child
scratched herself, she may have also penetrated herself. The nurse disputed this
suggestion, stating that the child could not have penetrated herself as deeply as her
examination revealed. She also explained the scratching by reference to a time period,
stating that the bruising appeared to be fresh and not older than 72 hours. The
evidence of the nurse was not disputed during trial.
[15] Much was made in Court before us regarding the relative freshness of the
vaginal bruising and scratching, and it was suggested that this was inconsistent with
the complainant’s version that s he was raped in and during December 2016. It was
suggested that the alleged rape could not have occurred as far back as the complainant
claimed. Apart from the fact that there was no medical evidence to support this
argument, it is important to have regard to the nurse’s evidence that the complainant
suffered from an infection. There is no medical basis to conclude that the complainant
could not have suffered from an infection three months after the rape.
[16] Furthermore, the fact that the scratching and bruising could have been caused
by the complainant, does not mean that a rape was not caused by the appellant. In fact,
that theory was disputed by the nurse, who refuted any suggestion that the penetration
could have been caused by the complainant given the depth of the penetration.
[17] The issue of the timeline of the rape was also relevant to the reporting of the
rape made by the complainant to the nurse and her mother whilst at the day clinic on
17 March 2017. On that occasion the complainant indicated that the appellant had
raped her on 10 March 2017, which was approximately a week earlier. However, she
had later changed it to state that the rape had occurred on 16 December 2016. The
appellant argued that, because of this contradiction, no reliance should be placed on
the evidence of the complainant, who was a single witness.
[18] The complainant , however, was candid about this issue, stating that she had
made an error when she first reported the rape to the nurse. The evidence of the
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complainant’s mother supported the complainant’s version, and she clarified that the
complainant had in fact corrected herself on the same day as the medical examination,
and whilst still at the day hospital. She attributed the error to the emotional state of the
complainant. Again, none of this evidence was disputed on behalf of the appellant.
The error had only been made on the date of reporting the rape to the nurse in March
2017, which was also the same date on which she corrected itself. This cannot be
elevated to a contradiction in the evidence of the complainant. There was otherwise no
irregularity in the manner in which the Magistrate considered and applied the law
relating to single witness evidence.
[19] The appellant also takes issue with the fact that there was no forensic evidence
linking him to the rape. H owever, the rap e was only reported three months after the
incident, and as the State points out, any DNA screening would have been superfluous
by March 2017. Similar considerations apply in respect of the appeal ground that no
forensic evidence in respect of a swab test obtained from him was used i n the trial.
Such evidence would not have assisted in the matter so long after the event.
[20] A further ground of appeal relates to the State’s failure to call the grandmother
of the complainant as a witness. However, as the State points out, the grandmother
would not have taken the matter any further because according to the complainant she
was sleeping during the rape , and accordingly w ould not have been a witness to the
rape. Further, the complainant testified that her grandmother had passed out after
drinking alcohol on that night, and th erefore her observational abilities would most
probably have been compromised.
[21] However, it is possible that the complainant’s grandmother may have assisted
regarding the timeline of events , which was in dispute . The appellant’s version was
that the grandmother of the complainant had left the Western Cape for the Eastern
Cape in or during October 2016, never to return. Accordingly, he denied that he could
have committed the said rape during December 2016 because he no longer visited the
grandmother’s residence by then. It was revealed during the trial that the
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complainant’s grandmother did not consider it worthwhile to travel from the Eastern
Cape to the Western Cape to give evidence in this matter because she considered
herself too old and was said to be in her eighties at the time of the trial.
[22] However, even without the grandmother’s version, the issue of the timeline was
satisfactorily resolved, in my view, through the evidence of not only the complainant,
but also her mother and father, all of whom testified that the complainant went to visit
her grandmother during the December 2016 holidays and that it was thereafter, in
January 2017 that the grandmother was sent back to the Eastern Cape. All three
testified that the complainant never returned to her grandmother's residence after the
December 2 016 holidays . The complainant’s father resided in the same yard as his
mother (the complainant’s grandmother) whilst she resided in the Western Cape, and it
was his decision (supported by the grandmother) to return her to the Eastern Cape in
January 2017. Furthermore, the complainant’s mother testified that, from January
2017 she was responsible for collecting the grandmother's grant which was paid out in
the Western Cape. None of this evidence was challenged.
[23] Furthermore, the complainant’s evidence was that she specifically remembered
that the first rape incident occurred on 16 December 2016 because on that da y, she
was to wear new clothing in line with what she and other children of her age would
normally do on that date. However, because of the state she was in following the rape,
she found herself unable to put on he r new clothes. There was no contradiction in this
evidence relating to the date of the rape assault during trial, and the complainant’s
version was consistent throughout, that she was raped in December 2016. Given all
this evidence, the Magistrate was justified in holding that the rape occurred during
December 2016.
[24] The appellant makes much of the fact that the complainant failed to report the
matter sooner than she did. However, one has to take into account firstly that at the
point of the assault the complainant was threatened with a knife and was told that if
she reported the matter, all the occupants of he r grandmother’s home – her family -
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would be killed by the appellant. She testified that she was very scared as a result of
these threats, which were made on two separate occasions of rape. One must also take
into account that s he was an impressionable child of 10 years when the rape took
place.
[25] Similar considerations have been mentioned on many occasions by the courts,
including in Bothma v Els 13, that “child rape is an especially egregious form of
personal violation…Because it often takes place behind closed doors and is committed
by a person in a position of authority over the child, the result is the silencing of the
victim, coupled with difficulty in obtaining eyewitness corroboration”.
[26] In any event, section 59 of the Sexual Offences Act provides that “in criminal
proceedings involving the alleged commission of a sexual offence, the court may not
draw an inference only from the length of any delay between the alleged commission
of such offence and the reporting thereof ”. I also observe that in the circumstances of
this case, the delay was not substantial, being only three months . And because the
delay was negligible, the complainant’s parents were able to provide reliable evidence,
especially regarding the timeline of events. There is otherwise nothing in the record
which indicates that the quality of the trial was in any way affected by the said delay
of three months, and the appellant has pointed to none.
[27] Apart from what has already been mentioned, the appellant’s defence during
trial was that the complainant must have been influenced by her father to falsely
implicate him because the father was unhappy with the relationship between the
appellant and the grandmother, who is the mother of the complainant’s father.
However, the appellant’s own evidence in this regard did not sustain this allegation
because his evidence was that he had a good relationship with the complainant’s father
13 Bothma v Els 2010 (2) SA 622 (CC) at para 47. See also Maila v S (429/2022) [2023] ZASCA 3 (23 January
2023)
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who never expressed any view regarding the appellant’s relationship with his mother ;
and even after his mother left for the Eastern Cape, they continued to enjoy a good
relationship. Furthermore, he only discovered during the trial that the complainant’s
father did not approve of his romantic relationship with his mother. It therefore makes
no sense why the complainant’s father would fabricate these allegations against him,
even on his own version.
[28] Importantly, it was not disputed that the rape was only discovered as a result of
the difficulties experienced by the complainant to urinate. It was furthermore not
disputed that the parents were not present when that occurred at the complainant’s
school. Further, that the complainant was unwilling to reveal the rape to any adult
person, until the nurse succeeded in the absence of the mother. There was accordingly
no basis to suggest that the parents, especially the father, fabricated the allegations of
rape.
[29] For all these reasons, i t is no wonder that the Magistrate found that the State
had proved its case beyond reasonable doubt.
D. SENTENCE
[30] The charges against the appellant invoked the provisions of section 51(1) of the
CLAA, which provides as follows:
“Notwithstanding any other law, but subject to subsections (3) and (6), a
Regional Court or a High Court shall sentence a person it has convicted of an
offence referred to in Part 1 of Schedule 2 to imprisonment for life”.
[31] In turn, the following offence is included as part of Part 1, Schedule 2:
“Rape as contemplated in section 3 of the Sexual Offences Act where the
victim is a person under the age of 16 years”.
[32] In terms of section 51(3)(a) of the CLAA a lesser sentence may be imposed if
the Court is satisfied that substantial and compelling circumstances justify a departure
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from the prescribed minimum sentence. The Supreme Court of Appeal14 has cautioned
that the “specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion
to imprisoning first offenders, personal doubts as to the efficacy of the policy
underlying the legislation, and marginal differences in personal circumstances or
degrees of participation between co -offenders are to be excluded”. With this
background in mind, I turn to consider the appeal against the sentence.
[33] The appellant relies on his personal circumstances, which may be summarized
as follows: he is now 63 years old, was approximately 57 years old at the time of the
rape assault, and 60 years old at the time of sentencing ; he suffers from migraines;
earned an amount of R4000 at the time of arrest; has a low standard of education and
possesses no work skill and therefore his chances of obtaining employment after
release are minimal; was residing with his niece and her child in an informal structure
at the time of arrest; and has one child whose whereabouts have been unknown to him
for approximately 26 years.
[34] Although the age of the appellant is advanced, i t is difficult to construe his age
as a substantial and compelling circumstance in the context of this case, whether
viewed on its own or cumulatively with other personal circumstances raised by him.
The case law is clear that one has to make out a case for why age constitutes
substantial and compelling circumstances. 15 In the case of S v JA , the appellant was
approximately 56 years old at the time of the rape offences, and 59 when sentencing
procedures commenced, and the age was described by the court as ‘relatively
advanced’. However, the sentencing court concluded that the relatively advanced age
of the appellant was not a mitigating factor in the context of a prescribed sentence of
life imprisonment and in considering whether there were substantial and compelling
circumstances justifying a lesser sentence.16
14 In S v Malgas para 25D.
15S v JA 2017 (2) SACR 143 (NCK) paras 41 - 49.
16 S v JA para 41.
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[35] If anything, the appellant’s age constitutes an aggravating factor in this case,
because the minor child referred to him, even during trial, as ‘Tat’omkhulu’
(grandpa). The minor child trusted him by virtue of his age and his relationship with
her grandmother, and one would never expect a person in his position to inflict the
type of assault that he did upon the complainant, and repeatedly so. He seized upon
the easy access he had to the child by virtue of his romantic relationship with her
grandmother. Further, he wielded a knife and threatened her with murder.
[36] Similarly, n o case has been made out for why the alleged migraines are
substantial and compelling circumstances, and why they could not be seen to within
the correctional services facilit ies. As for the prospect of losing an income, t he
appellant joins thousands of individuals who are said to be earn ing an income, but
nevertheless commit crimes as heinous as the one committed by the appellant. The
fact that he earned an income cannot possibly constitute a substantial and compelling
circumstance, and the loss thereof is instead a consequence of the fact that he is now
to be incarcerated. Furthermore, i t is by now well -known that our correctional
facilities do offer upskilling opportunities for inmates and there is no reason why the
appellant cannot avail himself of such an opportunity if he wished to do so, even at his
advanced age.
[37] As regards h is estranged relationship with his child, it was stated that he last
saw his child when the child was 10 years old , and that the chil d should now be 36
years old. Once again, there was no indication of how this constitutes compelling and
substantial circumstances. Whilst it is not for this Court to draw an inference that the
appellant is not a caring or responsible father, the Court can equally not draw a
positive inference in this regard since no information was provided in this regard at
all. What we do know is that, in the circumstances of this case, where the appellant
was provided with an opportunity to play the role of a responsible, caring
‘Tat’omkhulu’, he abused that opportunity.
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[38] In my view, the circumstances relied upon by the appellant , even when viewed
cumulatively, constitute what the SCA referred to in S v Malgas 17 as flimsy and
insubstantial grounds which do not justify departure from the prescribed minimum
sentence of life imprisonment.
[39] On the other hand, it was not di sputed that the rape incident had a tangible
negative effect upon the complainant. Both her parents report ed that she has
subsequently become socially and emotionally withdrawn, and that her performance at
school has deteriorated such that she now has to be enrolled at what they termed a
‘special school’ where she will receive more care and assistance. The evidence was
that t his new arrangement was about to place a long -term financial strain on the
family.
[40] Taking into account what was placed before the trial court, I agree with the
Magistrate’s assessment that no substantial and compelling circumstances were
presented by the appellant. Rape remains a shocking, despicable scourge which
shames us as a nation. More so the rape of a helpless, minor child by a trusted adult
person in her life. All the more need to carefully and dutifully apply the statutory
prescripts imposed by the CLAA. The words of the SCA in DPP , North Gauteng v
Thabethe18 come to mind:
"Rape of women and young children has become cancerous in our society. It is a crime,
which threatens the very foundation of our nascent democracy, which is founded on
protection and promotion of the values of human dignity, equality and the advancement of
human rights and freedoms. It is such a serious crime that it evokes strong feelings of
revulsion and outrage amongst all right thinking and self -respecting members of society. Our
courts have an obligation in imposing sentences for such a crime, particularly where it
involves young, innocent, defenseless and vulnerable girls, to impose the kind of sentences
which reflect the natural outrage and revulsion felt by the law -abiding members of society. A
failure to do so would regrettably have the effect of eroding the public confidence in the
criminal justice system"
E. ORDER
17 S v Malgas 2001 (1) SACR 469 (SCA). See also S v Cwele & another 2013(1) SACR 478 (SCA) at [29].
18 DPP , North Gauteng v Thabethe 2011 (2) SACR 567 (SCA) 577 G-l.
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[41] In the circumstances the appeal against conviction and sentence is dismissed.
______________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
I agree, and it is so ordered.
______________________
M. I. SAMELA
Judge of the High Court
APPEARANCES
For the appellant : Adv N Kunju
Legal Aid South Africa Cape Town Local Office
For the respondent : Adv P A Thaiteng
Director of Public Prosecutions: Western Cape