SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: A307/2022
DOH: 30 MAY 2024
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
SIGNATURE
DATE: 12/8/2024
In the matter between:
L[...] S[...] M[...] M[...] APPELLANT
and
THE STATE RESPONDENT
This Judgment was handed down electronically and by circulation to the parties’
legal representatives’ by way of email and shall be uploaded on caselines. The date
for hand down is deemed to be on 12 August 2024.
___________________________________________________________________
JUDGMENT
Mali J
[1] “The complainant’s youth, neediness and vulnerability, on the one hand, and
the situation of quasi -familial trust, authority and subordination in which she found
herself, on the other, cast light on the rest of her evidence. The phenomenon of
domestic sexual predation required especial understanding appropriate to its distinct
characteristics, failure to appreciate properly how feelings of guilt, complicity, fear
and shame might in a domestic situation operate to entrap a victim could lead to a
failure of justice.”1
[2] The above findings by Cameron JA as he then was, bear relevance in the
present appeal . The appellant Mr L[...] S[...] M[...] M[...] , who was convicted and
sentenced for raping his two minor daughters as well as sentenced for the sexual
assault of his niece. He is appealing both conviction and sentence.
[3] The appellant was sentenced on 18 March 2022 by the Benoni Regional
Court. On the two counts of rape, he was sentenced to life imprisonment per count,
and 10 years imprisonment for sexual assault. All counts were ordered to run
concurrently for the purposes of serving the sentence. He now appeals in terms of
section 10 of the Judicial Matters Amendment Act 42 of 2013 2. (Automatic right to
appeal).
[4] The facts giving rise to the sentencing of the appellant relate to incidents that
happened over a period of time . From the grounds of appeal the common thread is
that in all the counts, the complainants were single witnesses. This is not true, t he
1 S v M 2006 (1) SACR 135 ( SCA) para 77 – 80.
2 Section 309 of the Criminal Procedure Act, 1977, is hereby amended by the substitution in
subsection (1) for paragraph (a) of the following paragraph: “(a) Subject to section 84 of the Child
Justice Act, 2008 (Act No. 75 of 2008) , Any person convicted of any offence by any lower court
(including a person discharged of conviction) may, subject to leave to appeal being granted in terms
of section 309B or 309C, appeal against such conviction and against any resultant sentence or order
to the High Court having jurisdiction: Provided that if that person was sentenced to imprisonment for
life by a regional court under section 51(1) of the Criminal Law Amendment Act, 1997 (Act No.105 of
1997), he or she may note such an appeal without having to apply for leave in terms of section 309B:
Provided further that the provisions of section 302(1)(b) shall apply in respect of a person who duly
notes an appeal against a conviction, sentence or order a contemplated o section 302(1)(a).”
witnesses were “child witnesses” not single witnesses as will be show n below. In
Woji v Santam Insurance Co Ltd 3 it is held
“The question which the Trial Court must ask itself is whether the young witness’s
evidence is trustworthy. Trustworthiness . . . . depends on factors such as the
child’s power of observation, his power of recollection and his power of narration on
the specific matter to be testifies. In each instance the capacity of the particular child
is to be investigated. His capacity of observation will depend on whether he appears
‘intelligent enough to observe’. Whether he has the capacity of recollection will
depend again on whether he has sufficient years of discretion ‘to remember what
occurs’ while the capacity of narration or communication raises the question whether
the child has the capacity to understand the question put, and to frame and express
intelligent answers . . . there are other factors . . .does he appear honest – is there a
consciousness of the duty to speak the truth?”
[5] In respect of the complainant in count 1, on 25 December 2015 the appellant
summonsed the complainant who was 11 years old at the time to the shack known
as the laundry room. The appellant instructed her to sit on his lap, she obliged and
the appellant touched her buttocks. She felt uncomfortable and decided to run away.
Whilst running she met her aunt Ms A[...] M[...] who was referred to as A[...] T[...] and
reported the incident to her.
[6] The appellant’s argument is that the complainant was a single witness, her
evidence was contradictory therefore there was no basis for conviction. From the
record it is clear that th ree witnesses testified , the complainant, A[...] T[...] and Ms
L[...] M[...].
[7] The appellant decries immaterial contradictions ar ising from the evidence.
There was an issue about whether the appellant was sitting on the bucket or a sofa
when the incident occurred. The complainant conceded that it was possible that the
appellant was sitting on something else other than a sofa. It was clarified during the
3 1981 (1) SA 1020 (A)
trial that the laundry room was later furnished with a sofa and that the complainant
testified 5 years ago, since the incident.
[8] The second witness, A[...] T[...] corroborated the complainant’s evidence, that
she witnessed the appellant’s misdemeanour. Her testimony was that she met the
complainant on her way from the laundry room and she immediately reported to her.
She approached the appellant who dismissed her by telling her she was overreacting
as nothing had happened. A[...] T[...] then reported to her sister Ms L[...] M[...], the
third witness. Ms M[...] confirmed same and she testified that she confronted the
appellant.
[9] It is trite4 that contradictions per se do not lead to the rejection of a witnesses’
evidence, they may be indicative of an error. Not every error made by a witness
affects his credibility. The Appellant’s complaint about whether he was seated on the
bucket or sofa is immaterial. The trial court correctly accepted the evidence of the
complainant.
[10] In respect of counts 2 and 3, that of raping his daughters the appellant
complains that the trial court should not have accepted their evidence because they
were single witnesses. His daughter, the complainant in count 2 testified that the
appellant raped her over time since she was young.
[11] She recalled the incident when her mother was away attending the initiation
school. T he appellant demanded to share a bed with her . The appellant had an
argument with his mother (the grandmother to the complainant) about the
complainant and her sister’s sleeping arrangements. The grandmother had proposed
to sleep with both complainant and her sister in the dining room floor. She resisted
and ultimately gave in.
[12] When they got to the bedroom the appellant instructed the complainant to
take off her under wear and the night dress which she did. He then i nstructed her to
get on top of him and hug him to which she did as she was told. He then opened her
4 S v Mkohle 1990 (1) SACR 95 ( A)
legs and inserted his penis into her vagina and instructed her to make bumpy
movements which she complied.
[13] The following morning, he told her not to go to school. W hen she was about
to tell her grandmother about the incident the appellant appeared from his bedroom
and looked at her in an angry manner as if he was going to hit her. She refrained
from telling her grandmother and went to play outside.
[14] During the same night she refused to share the bed with the appellant as she
was scared of him and she told him as such. The appellant threatened to hit her in
the event she told anyone. She believed him as he used to hit her with a sjambok; as
a result, she joined her father in bed. In this instance the appellant inserted his penis
into her vagina from behind, raping her. She kept on stopping him as she was in
pain, but the appellant refused and continued raping her. She did not tell anyone for
a long time until her sister (the complainant in count 3 ) spoke about her ordea l of
being raped by the appellant. This is after she had attempted suicide and was
hospitalised, at that time the appellant was no longer living with them.
[15] The appellant takes an issue with the fact that no medical report confirmed
that the complainant in count 2 was ever raped. This arises from the evidence of the
complainant’s mother that she was taken to various clinics for painful vagina when
she was between 8 and 11 years old. The medical staff unfortunately did not pick up
that she was raped. The omission cannot be attributed to the child or even the
mother who would not have thought about it. The appellant says since there is no
medical evidence corroborating the second complainant’s evidence the trial court
misdirected itself.
[16] The complainant’s mother corroborated the fact that she was missing school.
This supports the complainant’s version that the appellant would stop her from going
to school, therefore lands credibility to her version. The similar fact evidence by the
complainant’s mother Ms L[...] M[...] backs up the complainant’s evidence in many
ways. Ms M[...] testified that she attended the traditional healing school and left the
children with the appellant and their grandmother, that there was a sjambok in the
house and that the appellant would always discourage the complainant from
attending school. Over and above all Ms M[...] is the one who attended to her when
she complained about vaginal pains. The trial court was correct in convicting the
appellant.
[17] In respect of the complainant in count 3 (the appellant’s daughter ), the trial
court accepted her evidence and the medical evidence pointing to the long-term
sexual assault. The complainant testified that the appellant started raping her when
she was 8 years old. Although she could not remember other incidents very well, she
testified about two occasions.
[18] One incident is when the complainant was 13 years old when she was about
to go to school, the appellant summonsed her to his bedroom. He instructed her not
to attend school. He directed her to get under his blankets and told her to undress.
Having complied he got on top of her and inserted his penis into her vagina.
[19] Another incident she recalled was when her mother was attending the
initiation school. She was watching television at night when the appellant joined her.
He offered her a cigarette whilst telling her that he knew that she smoke d cigarettes.
He suggested that it was better that they smoke together and told her to undress and
sit on top of him. She did as she was told, and whilst she was sitting on top of him
the appellant forced his penis into her vagina, at the same time he was touching her
breasts. The appellant warned her not to tell her mother . The reason being that her
mother was suffering from heart problems, she would die of a heart attack if she
found out.
[20] The straw that broke the camel’s back was the incident of 5 August 2017
when the appellant wanted to rape her again . The appellant called the complainant
to the outside shack telling her that he missed her. She complied, when they got to
the shack he ins tructed her to undress , an instruction she refused. The appellant
went on to aggressively tore the pair of tights she was wearing. She managed to
push him away as he was drunk and she ran away. The following day she drank
poison in an attempt to kill herself because she could not endure being raped again .
She was taken to hospital where she spilled the beans about the mu ltiple rapes she
suffered in the hands of h er father. The appellant was later arrested. The
complainant in count 1 and 2 also got the courage to report the appellant.
[21] The appellant’s grumble is that the trial court did not take into consideration
the complainant’s conduct of past sexual activity and that she once got pregnant. He
further denounces the evidence from the medical evidence. His argument is that i t
could not be concluded that it is associated with him and should not have been relied
on for his conviction.
[22] Section 227 (2) of the Criminal Procedure Act 5 1 of 1977 as amended 5
prohibits the adducing of evidence of sexual experience unless certain provisions are
met. In the present case there is no evidence that the appellant followed the
procedure laid down in section 227(2).
[23] Furthermore, the common factor in the evidence of the complainant in count 2
and 3 is that some of the rapes occurred when their mother attended the initiation
school, something corroborated by their mother, Ms L[...] M[...] . Further that both
complainants would be raped in the morning before going to school or told not to
attend school. There is no evidence that all the complainants discussed what
happened to them amongst them selves. However, from the evidence it is apparent
that the appellant followed a similar modus operandi.
[24] The trial court’s finding that the appellant failed to establish a reason why he
would be falsely implicated is indeed a misdirection. It is trite that the onus rests
upon the state to prove the case against the accused. However, taking into
consideration the evidence in totality this finding does not taint the conviction of the
5 (2) No evidence as to any previous sexual experience or conduct of any person against or in
connection with whom a sexual offence is alleged to have been committed, other than evidence
relating to sexual experience or conduct in respect of the offence which is being tried, shall be
adduced, and no evidence or question in cross examination regarding such sexual experience or
conduct, shall be put to such person, the accused or any other witness at the proceedings pending
before the court unless-
(a) the court has, on application by any party to the proceedings, granted leave to adduce such
evidence or to put such question; or
(b) such evidence has been introduced by the prosecution.
appellant. The trial court did not misdirect itself in convicting the appellant for the
rape of the complainant in count 3.
Sentencing
[25] It is trite law that punishment should fit the criminal as well as the crime, be
fair to society and be blended with a measure of mercy according to the
circumstances. In S v Malgas6 the Court intimated as follows:
“The Courts are required to approach the imposition of sentence conscious that the
legislature has ordained life imprisonment as the sentence that should ordinarily in
the absence of a weighty justification be imposed for listed crimes in the specific
circumstances. Unless there are and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore required to elicit a severe
standardized and consistent approach from the courts. These sentences are not to
be departed from lightly and for flimsy reasons.”
[26] In S v Matyityi7 the court held that:
“There was all too frequently a willingness to on the part of the courts to deviate from
the sentences prescribed by the Legislature for the flimsiest of reasons. Court had a
duty, despite any personal doubts about the efficacy of the policy, or aversions to it,
to implement those sentences, Parliament had ordained minimum sentences for
certain specified offences and they were to be imposed unless there were truly
convincing reasons for departing from them, Court were not free to subvert the will of
the Legislature by resort to vague, ill -defined concepts such a relative youthfulness
or other equally and ill -founded hypotheses that appeared to fit the sentencing
officer’s notion of fairness.”
[27] The appellant’s submission is that the minimum sentence of life im prisonment
is harsh. Furthermore, the court must find th at there are substantial and compelling
6 2001 (1) SACR 469 (SCA)
7 2011 (1) SACR 40 (SCA) at para 41(g),
circumstances. The appellant was 42 years of age at the time of the commission of
the offence. He was married with six children including the two complainants. He
was not formally employed although he is a qualified artisan. The court must also
consider that the appellant spent 4 years in custody awaiting trial.
[28] In my view when someone’s age is thrown to the court without submitting how
it impacts the sentencing, it becomes irrelevant. The appellant’s age militates against
the considerations for deviation from the prescribed minimum sentences. The very
fact that at his mature age he decided to rape his children and sexual assault his
niece in the absence of his wife is the reason for the court to seriously consider the
sentencing.
[29] Although he was married with six children, on his own admission he was not
supporting them as he was not working. Again, the court is left wondering as to what
to do with this information without submissions on the sentencing implications.
[30] With regards to the time he spent in custody awaiting trial in S v Radebe8 it is
held that “the test was not whether on its own that period of detention constituted a
‘substantial and compelling circumstance’, but whether the effective sentence
proposed was proportionate to the crime or crimes committed: whether the sentence
in all circumstances, including the period spent in detention prior to conviction and
sentencing, was a just one.”
[31] From the above it is apparent that the period spent in custody cannot be
substantial and compelling on its own. The test is whether the sentence in all
circumstances taking into consideration the crimes committed is a just one.
[32] What mercy does the merciless father deserve if he is convicted of repeatedly
raping his daughter, worse a minor? If he rapes the second minor daughter in the
same manner as the first , is he entitled to any clemency? Over and above all how is
the court expected to sentence the father of two minors convicted of sexual assault
8 2013 (2) SACR 165 (SCA) at 14
for his niece (a minor too), the cousin of her minor daughters. What is a just
sentence?
[33] The answer to the above is straightforward, “no deviation from the prescribed
minimum sentences.” Almost on daily basis our court s condemn the gender-based
violence against women and children, but it does not look like the perpetrators take
this killer scourge seriously. One does not need to be an expert to understand that
the scourge kills the emotions; it kills the dreams; it kills the future of the victims etc.
[34] In this case there is only one option , that the perpetrator must be sentenced
accordingly. The appellant betrayed the father- daughter and uncle -niece trust in a
family setting. The appellant is an old man who even when his own mother saw
through him contravened the law and defied the morals. His mother made it clear
that the girls would sleep with her on the floor, he forced his way to rape his own
child under the same roof with his mother. Not only did he rape one, but two in the
bed he shared with the complainants’ mother.
[35] He had no mercy towards his children a s he went on to destroy the ir future.
After raping them he instructed them not to attend school for his own selfish reasons.
He feared that he would be reported. He did not care about the education of his
children who were brave enough to desire to go to school even after such a violation.
[36] Having regard to the above it is found that the trial court did not misdirect itself
in convicting and sentencing the appellant. In the result the following order is
granted:
ORDER
1. The appeal is dismissed.
N P MALI
JUDGE OF THE HIGH COURT
I AGREE
BALOYI-MERE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Appellant: H L ALBERTS
hermana@legal-aid.co.za
For the Respondent: ADV. PILLAY
Pepillay@npa.gov.za