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REPUBLIC OF SOUTH AFRICA






IN THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE

CASE NO: A12/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED : NO
SIGNATURE:
DATE: 14/04/ 2025


In the matter between:

BENNY MOHALE APPELLANT

and

THE STATE RESPONDENT

Heard 29 November 2024
Delivered 14 April 2025 by circulation to the parties' legal
representatives
Coram KGANYAGO J et. PILLAY AJ

JUDGMENT

PILLAY AJ:

[1] The Appellant was convicted in the Phalaborwa Regional Court on the 8
October 2020 of contravening Section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act1 (Rape) read with the provisions of Section 51(1)
part 1 of Schedule 2 of The Criminal Law Amendment Act2. The Appellant was
sentenced on the 11 November 2020 to life imprisonment.

[2] The appellant was thirty -seven years old, at the time of his arrest and was
legally represented throughout the proceedings. He was entitled to an automatic
right of appeal flowing from being sentenced to life imprisonment, in terms of the
Criminal Law Amendment Act. Both parties argued the appeal.

[3] The appellant raised various grounds of appeal as contained in the notice of
appeal3,which can be highlighted as follows;

AD CONVICTION

[3.1] The court erred in finding that the state had successfully prove the guilt
of the appellant beyond any reasonable doubt.

[3.2] The court further erred in finding that the child victim identified the
appe llant as the perpetrator of this offence.

[3.3] The court erred in admitting the evidence of DNA test results without
chain of custody been proved by the state and whilst being disputed by the
defence.

1 Act 32 of 2007 as amended
2 Act 105 of 1997 as amended
3 See Vo l 1 pages 1 to 5 of the notice of appeal.

[3.4] the court erred in failing to approach the evidence of the child victim with
the necessary caution applicable to single witness evidence.

[3.5] the court erred in finding t hat the defences version was not reasonably
possibly true.

AD SENTENCE

[4] An effective life term of imprisonment is strikingly inappropriate in that:

[4.1] It is out of proportion to the totality of the accepted facts in mitigation of
sentence.

[4.2] Th e court erred in finding that there existed no compelling and
substantial circumstances for deviation from imposing the prescribed
minimum sentence.

[4.3] The court erred in not finding that given the age of the appellant, he can
still be rehabilitated int o a law -abiding member of society.

[4.4] The court erred in over emphasising the following factors;

[4.4.1] The seriousness and prevalence of offence.
[4.4.2] The interest of society
[4.4.3] The deterrent effect of the sentence.
[4.4.4] The retributive ele ment of sentencing.
[4.4.5] Appellant's record of previous convictions.

[5] It is a trite principle that the findings of fact of the trial court, are presumed to
be correct unless there are demonstrable and material misdirection on its part.
Those findin gs will only be disregarded if the recorded evidence shows them to be
clearly wrong. In the same vein, the credibility findings of the trial court cannot be
disturbed unless the recorded evidence shows them to be clearly wrong4.

[6] Regard was had to t he case of S v Francis5 with specific reference to the
powers of an appeal court when considering the fact findings of the court a quo,

"the powers of the court of appeal to interfere with the findings of fact of a trial
court are limited6 in the absence of any misdirection the trial court's
conclusions including the acceptance of a witness evidence is presumed to be
correct. To succeed on appeal, the appellant must therefore convince the
court of appeal, on adequate grounds that the trial court was wrong in
accepting the witness evidence, a reasonable doubt will not suffice to justify
interference with its findings, bearing in mind the advantage which a trial court
has of seeing, hearing, appraising a witness. It is only in exceptional cases
that the court o f appeal will be entitled to interfere with trial court evaluation of
oral testimony7."

[7] The appellant pleaded not guilty and exercised his right to remain silent. The
respondent led evidence of witnesses who testified under oath with the use of the
language practitioner, and in respect of the child complainant, whose name is being
withheld to protect her identity, through the services of an intermediary via a
separate room in compliance with Section 156, Section 158 and Section 170(A) of
the Criminal Procedure Act8. The evidence briefly summarised was as follows.

[8] The child complainant CM testified under oath, through the CCTV facility, and
was assisted by an intermediary. She informed the court that on 7 December 2017,
she was at Phalaborwa at her Granny's place of residence, asleep with her sibling
SM. The appellant entered the room and carried her to another room. In that room,
he removed her underwear and started licking her on her vagina. He threatened her

4 see S v Hadebe & others 1998 (1) SACR 422 (SCA) p 645E - 6461
5 1991(1)SACR 198(A)
6 R v Dhlumayo and Another 1948(2) SA 677 (A
7 S v Robinson and Others 1968(1) SA 666 (A) at 675 G - H).
8 Act 51 of 1977 as amended
with a knife, that if she screamed, he would stab her. The appellant thereafter took
his penis and inserted it into her vagina.

[9] She requested to go to the toilet, which was in the house, and he
accompanied her to the toilet. It was then, that she was able to recog nise the
appellant as the person by the name of Benny. The reason she was able to see the
appellant was on account of the Apollo light that was outside, shining into the house.
Thereafter, she was taken back to the room, and he again took his penis and
inserted it into her vagina. After he was finished, he gave her a R20,00 and told her
not to tell anyone, and he left. Her mother returned home, and she informed her
mother about the incident and gave her mother the money. Her mother arranged for
them to go t o the police station and hospital. The child complainant identified the
appellant as someone she knew for a long time and was her sister's boyfriend. She
had known him for years, prior to that day and that he lived a few houses away from
her home.

[10] She indicated that he was wearing a hat and that whilst she was in the toilet
he went to the kitchen and left the hat there. She testified that his face was visible,
as the window through which the light shone, did not have a curtain and when she
told the app ellant that it was him, because of seeing his face, he denied it and
thereafter was trying to hide his face. She indicated if she was to meet him again,
she would be able to identify him. The appellant was pointed out as the person who
committed the offe nce. The child complainant conceded during cross -examination
that being carried to another room was not recorded in her statement. She confirmed
that she could not see the person in the room, as the room was dark. She confirmed
that she did not testify tha t that the person had told her, he was Odeas. The
appellant did not question the child complainant concerning his version of events.

[11] KM, the mother of the child testified that she had left the children asleep and
had gone out. On her return she knoc ked to enter and was told by the child about
what had transpired. She contacted the police and went to meet them where the
incident was reported, and the child was taken for treatment to hospital where the
child was admitted for four days. Her evidence was tested under cross examination
and her statement was received as an exhibit "D". she confirmed that when she was
informed that the appellant had touched the child's breast she demanded to check
the child's vagina, and that when the child disclosed everyth ing that had transpired
with the appellant. The appellant did not put his version to the mother of the child
complainant, concerning the incident.

[12] The court a quo held a trial within a trial in respect of the admissibility of the
J88 which did not h ave the details of the patient, who was being treated and further
the discrepancy concerning the copy of the J88, which was disclosed to the
appellant, without the name endorsed, whilst the respondent's copy had the name of
the child complainant written on it. The investigating officer testified that she was
instructed in the diary that the child complainant's details were omitted. She went to
the hospital and spoke to the medical practitioner involved who then corrected the
J88 including the child compla inant's name. She did not have any further information
concerning the matter and no proof of her allegations. The medical practitioner
testified that she compiled the J88 on examining the child complainant. She had by
mistake, omitted to fill in the detail s of the child on the J88 but she had compiled the
Section 212 affidavit in respect of the J88 wherein the child complainant's name was
reflected and verified with the hospital record, confirming the details of the child
complainant. She recalled treating the child complainant and that the injuries
sustained by the child complainant was correctly recorded on the J88.
The court a quo was unable to make a finding of who had written the child's name on
the J88 after the respondent had requested it be corrected , but was satisfied that the
medical practitioner had completed the J88 after examining the child complainant
and that she conceded to the error of not endorsing the name on the J88. The court
a quo ruled that the J88 was admissible and same was received a s exhibit "A". The
S212 affidavit and DNA results were received as exhibit "C" and that was the case
for the respondent.

[13] The appellant testified and indicated that on the date in question he was at the
residence of the complainant. He had gone there to take his girlfriend SM who is the
complainant's aunt, to the Marula festival. On his arrival he found his girlfriend's
sister NM, who informed him that his girlfriend was in Middleburg and that she would
not be returning in time for the Marula festival . NM suggested that he give her
R200,00 and a ticket to the Marula festival and they agreed to have consensual
sexual intercourse. When they were finished, NM informed him she was going to
bath, and he remained in the room. NM returned, told him that his girlfriend had
come back from Middleburg, and he must leave and wait for her on the street. He
was also instructed not to meet up with his girlfriend at the Marula Festival.

[14] He left and waited by the gate of his homestead for about 30 minutes. He
confirmed that his house was just along the main road. Later that night he called NM
who arranged to meet him, as he had the tickets for the Marula festival. Whilst
travelling he received a call from NM's phone, but it was the complainant's mother
who accused him of sleeping with BM, and now NM, and herself. She then asked if
he still had the tickets for the festival, which he confirmed and he said he would give
it to them, once t hey arrived. At midnight he was called by NM again, indicating that
he better have her R200,00 or else he would have a problem.

[15] Between 06h00am and 07h00am he was called by BM his girlfriend, who
enquired from him, what he had done at her homestead, and indicated to him, that
she had warned him, to keep away from her sisters, and since he did not listen, the
police were looking for him. He contacted NM who had no idea about this information,
and suggested he go to the police. He was later called by N M's aunt who informed
him, that there was an allegation, that he committed rape at her house and
suggested, he approached the police, since he denied knowledge of this allegation.
He did approach the police and was subsequently arrested in respect of this offence.

[16] The appellant denied the allegation of sexually penetrating the complainant.
He indicated that on the date in question, the complainant was not present, at the
time he was with NM at the house. He highlighted that he was at the Marula fes tival
the entire night, especially at the time, that he was accused of committing the
offence. He believed the complainant was implicating him falsely, because she hated
him. This was on account of the argument he had with her father, because of his
relati onship with BM. The argument concerned him disturbing BM, who was looking
after the complainant and her sibling SM. He indicated that he was in a love
relationship with the complainant's mother from 2012 to 2014. That he fell in love
with BM in December 20 16, and that relationship ended in 2018 whilst he was in
custody in respect of this offence.

[17] The appellant led the evidence of NM, who denied that on the night in
question, she had sexual intercourse with him, in exchange for a ticket to the Marula
festival. She denied telling him to leave, because his girlfriend had returned, and
having any communication with him, in respect of the R200,00 and the tickets for the
Marula Festival. She did not corroborate his version and denied that he was in a
previo us relationship with her sister KM, the complainant's mother.

[18] The appellant called BM who indicated that the appellant was her ex -
boyfriend. She indicated that the relationship was terminated when she was informed
by the child complainant that the appellant had raped her. She indicated that she did
not know of him being in a relationship with her sister KM and only knew that the
appellant was in a relationship with her and only her. She confirmed that the
witnesses all lived in the same house, whe re this incident occurred.

[19] The appellant called Abednego Mulombo who testified that he was a friend of
the appellant. In 2008 he lived at the appellant's house. He knew that the appellant
had a girlfriend, by the name of K[...]. His girlfriend was f riends with K[...]. He did not
know when the relationship between K[...] and the appellant ended, but they were
together for almost 2 to 3 years. He had no knowledge of the whereabouts of the
appellant on 2 December 2017, and he did not know a child by the name of CM. The
appellant then closed his case.

[20] The court a quo found that the evidence of the child complainant was
supported by the medical evidence, justifying the allegation of being sexually
penetrated on that night in question. The court a quo was satisfied that the only issue
was concerning who sexually penetrated the child complainant. The court a quo was
satisfied that the child witness identified the appellant, who was her neighbour and
someone she had known for years. She identified him w hen she went to the toilet
and saw his face because of the light shining into the toilet. The court a quo further
found that the appellant's version was improbable and rejected it, and based on the
totality of the evidence, convicted the appellant of the o ffence charged.

[21] The appellant was convicted and subsequently sentenced, and the appeal
was directed against both conviction and sentence. This court must determine,
whether in the light of the evidence adduced at trial, the guilt of the appellant was
established beyond reasonable doubt. If it is found that the appellant was properly
convicted, whether the sentence meted out to the appellant was appropriate.

[22] The onus rests on the state to prove its case beyond a reasonable doubt.
There is no onus on the appellant. In the case of S v JACKSON9 the court said:

"the burden is on the state to prove the guilt of an accused beyond a
reasonable doubt, no more or no less."

[23] This court must consider the totality of the evidence led, considering the
probabilities and improbabilities of the respective versions as well as the credibility of
the witnesses.

[24] In evaluating evidence regard was had to the case o f S v Chabalala10, the
Honourable Judge Hefer AJA said:

"to weigh up all the elements which point towards the guilt of the Accused
against all those which are indicative of his innocence, taking proper account
of inherent strengths and weaknesses, probabil ities and improbabilities on
both sides and, having done so, to decide whether the balance weighs so
heavily in favour of the state as to exclude any reasonable doubt about the
accused's guilt."

[25] The appellant admitted that he knew the child complain ant, her mother and
her aunts for some time. He admitted that his house was nearby the child
complainant's residence. He admitted visiting the child complainants house on the
night in question around 20h00pm. He disputed the allegations and raised the
defence of being at the Marula festival around 23h30pm, when the alleged incident
occurred. The appellant indicated that the child's age was not proved nor was her

9 1988[1] SACR 470 at 476 e -f
10 2003(1) SACR 134 (SCA) at paragraph 15
evidence as being a single witness considered. This court had regard to the fact that
the child, was known to the appellant as being a child, the J88 medical evidence,
indicated her age to be 10 years old. The appellant in his evidence, also referred to
the complainant as the child. It is not disputed that the child complainant, was under
the age of sixteen years at the time the alleged offence was committed, and the
appellant charged in terms of the Sexual Offences Act. This court is satisfied that the
child complainant was a child under the age of sixteen years old for the purposes of
determining the appeal.

[26] The child complainant was a single witness, and the provisions of Section 208
of the Criminal Procedure Act was applicable. Regard was had to the case of Maila
v The State11 where the SCA noted the following,

"It has stated that the double cautionary rule should not be used to
disadvantage a child witness on that basis alone. The evidence of a child
witness must be considered as a whole, taking into account all the evidence.
This means that, at the end of the case, the single child witness's evidence,
tested through (in most cases, rigorous) cross­ examination, should be
'trustworthy'. This is dependent on whether the child witness could narrate
their story and commu nicate appropriately, could answer questions posed and
then frame and express intelligent answers. Furthermore, the child witness's
evidence must not have changed dramatically, the essence of their
allegatio ns should still stand. Once this is the case, a court is bound to accept
the evidence as satisfactory in all respects; having considered it against that
of an accused person.... s 60 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 3 2 of 2007, which provides that:
'Notwithstanding any other law, a court may not treat the evidence of a
complainant in criminal proceedings involving the alleged commission of a
sexual offence pending before that court, with caution, on account of the
nature of the offence.'


11 429/2022) [2023] ZASCA 3 (23 January 2023)
[27] The child complainant was clear with details as to how the incident unfolded,
her evidence was honest and reliable in respect of the room where she was sexually
penetrated being in darkness, and only being able to identify the appellant when she
went to the toilet, where she was able to see the appellants face. She said this was
possible, because of the light shining, into the toilet from outside. The court a quo
found that the child witness, was truthful concerning the circumstances in which she
found herself, on the night in question. This court appreciates that the evidence of
the child witness was tested and amidst the discrepancy as to whether it was one or
more penetrations, which she corrected as twice, holistically her evidence was
consistent an d found to be truthful.

[28] The court a quo held a trial within a trial on account of the child's name not
being reflected on the J 88 medical report and who endorsed the respondent's copy
of the J 88. Amidst the author of this endorsement, not being trac ed, this court is of
the view that this does not in any way, tarnish the veracity of the contents of the J 88,
in respect of the physical injuries sustained by the child complainant. The medical
practitioner confirmed having compiled the Section 212 affidav it wherein the child
complainant's details were recorded and examining the child and confirmed the
findings made in the J 88. She recorded that there were fresh tears, abrasions and a
torn hymen. The conclusion reached was that the child had signs of recent
penetration. Based on the child complainant's injuries she was hospitalised for four
days. The appellant did not contest this evidence concerning the child being
physically injured. He disputed being the perpetrator.

[29] It is noteworthy that when the child complainant was cross examined the
version concerning her hatred for the appellant, concerning his dispute with her
father was never canvassed. Nor was it put to the complainant's mother that she was
in a love relationship with the appellant and that she had spoken to him on the night
of the incident, concerning him having a physical relationship with her and her two
sisters. These were important aspects that were not ventilated during cross
examination especially to give strength to the allegation th at this was a false charge
against him, on account of sleeping with NM her sister, whilst being in love with BM
the other sister.

[30] The appellant challenged the Section 212 affidavit in respect of the DNA as
being inadmissible, due to the lack of the chain statements, to prove the said DNA
report. This court accepts that Section 212 allows for prima facie proof by means of
an affidavit, of the contents of the report and results obtained during the examination.
Section 212 facilitates the production of evidence, but does not relieve the
respondent, of proving its case beyond a reasonable doubt. If there is need for
further chain statements, same must be handed in as exhibits.

[31] Section 212(4) reads that:

'(a) Whenever any fact established by any ex amination or process requiring
any skill -

(i) in biology, chemistry, physics, astronomy, geography or geology;

(ii) in mathematics, applied mathematics or mathematical statistics or in
the analysis of statistics;

(iii) in computer science or in any discip line of engineering;

(iv) in anatomy or in human behavioural sciences;

(v) in biochemistry, in metallurgy, in microscopy, in any branch of
pathology or in toxicology; or

(vi) in ballistics, in the identification of fingerprints or body -prints or in the
examination of disputed documents, is or may become relevant to the issue at
criminal proceedings, a document purporting to be an affidavit made by a
person who in that affidavit alleges that he or she is in the service of the State
or of a provincial admin istration or any university in the Republic or any other
body designated by the Minister for the purposes of this subsection ... and
that he or she has established such fact by means of such an examination or
process, shall, upon its mere production at s uch proceedings be prima facie
proof of such fact'.

[32] Exhibit "C" the DNA results amidst complying with Section 212, required chain
evidence to prove the reference buccal sample. It is improper to assume that since
the appellant was the person being a ccused of this offence, that he was the donor of
the DNA used in the comparison, as referred to in the S212 affidavit. The respondent
failed to lead evidence concerning this aspect. Exhibit "C" does not indicate details of
the donor, therefore without more , this evidence does not strengthen the
respondent's case against the appellant. This oversight by the respondent is
regrettable.

[33] This court considered the remaining evidence, to determine if the respondent
proved its case against the appellant without the DNA evidence. This court was
satisfied that in this instance, the DNA report was not the only evidence implicating
the appel lant. The child complainant's testimony identifying him as the perpetrator,
coupled with the medical evidence verifying her physical injuries, gave credence to
her allegation of being sexually penetrated by the appellant who was well known to
her.

[34] When considering the appellant's version, regard was had to the case of
Shackell v S12 Brand AJA stated the following:

"A Court does not have to be convinced that every detail of an accused's
version is true. If the accused's version is reasonably possibly true in
substance the court must decide the matter on the acceptance of that version.
Of course, it is permissible to test the accused's version against the inherent
probabilities. But it cannot be rejected merely because i t is improbable; it can
only be rejected on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly be true.

[35] The appellant unfortunately, was an exceptionally poor witness. His version of
events o f the evening tryst with NM, appeared unrealistic and far -fetched especially
when NM disputed his version in totality. The conspiracy he was hoping to rely upon,

12 2001 (4) ALL SA 279 (SCA)
did not materialise. The defence witnesses did not strengthen his case, nor did they
provide c orroboration for his whereabouts, which appeared to be an alibi, of his
presence at the Marula festival, at the time that the alleged incident occurred.

[36] The appellant's witness Abednego Mulombo failed to connect the appellant's
girlfriend by the nam e of K[...], who he came to know in 2008 to the complainant's
mother KM, who according to the appellant was his girlfriend between 2012 to 2014.
He was of no help to the appellant in respect of providing him with an alibi for the
night of the incident, as he did not know the whereabouts of the appellant. The
appellant version was riddled with improbabilities. The most obvious one being, that
the child complainant's mother, with the help of BM and NM, injured the child
complainant, to repay him for sleeping with NM. This is so farfetched as opposed to
the accepted facts.

[37] He raised the defence of being at the Marula festival but failed to testify about
the festival itself, in support of this allegation. This court accepts that there is no onus
on the ap pellant to prove his alibi, but for the court a quo, to have had an opportunity
to ventilate this version, he was at least required to place aspects peculiar to his
experience, at the festival, if he met anyone who could vouch for his presence there,
and t est the evidence in respect of the phone calls, but this was not forthcoming.

[38] In the case of R v Hlongwane13 the Court stated the following:

"The legal position with regard to an alibi is that there is no onus on an
accused to establish it, and if it might reasonably be true he must be acquitted.
R v Biya 1952 (4) SA 514 (AD). But it is important to point out that in applying
this test, the alibi does not have to be considered in isolation The correct
approach is to consider the alibi in the light of the totality of the evidence in
the case, and the Court's impressions of the witnesses. In the Biya's case
supra, Greenberg JA, said at page 521 …’if on all the evidence there is a
reasonable possibility that his alibi evidence is true it means that the re is the
same possibility that he has not committed the crime'.

13 1959 (3) SA 337 (A)

The Supreme Court of Appeal, in S v Mathebula14,noted that "The vulnerability of
unsupported alibi defences is notorious, depending, as it does, so much upon the
court's assessment of the tru th of the accused's testimony". This is no doubt so
because the appellant's alibis must be assessed holistically and weighed against the
totality of the evidence15.

[39] The respondent assisted the appellant to secure the witnesses NM and BM to
testify on behalf of the appellant, but there was no corro boration of his allegations,
save being in a love relationship with BM, which from the onset was not in dispute.
When considering the totality of the evidence, the appellant's version and alibi
dismally failed to withstand scrutiny under cross -examination. Therefore, when
considering the evidence in totality, the appellant's guilt was proven, beyond
reasonable doubt and, accordingly, the trial court rightly convicted the appellant as
charged.
The appeal on conviction stands to fail.

[40] In respect of se ntence, the appellant was convicted of contravening Section 3
Act 32 of 2007, read with Section 51(1) part 1 of schedule 2 Act 105 of 1997 as
amended. The prescribed sentence was Life Imprisonment, unless the appellant was
able to show the court that subst antial and compelling circumstances existed to
warrant the court imposing a different sentence.

[41] In Kgosimore v the State16, the Court restated that;

"It is trite law that sentence is a matter for the discretion of the Court burdened
with the task o f imposing the sentence. Various tests have been formulated as
to when a Court of appeal may interfere. These include, whether the
reason ing of the trial Court is vitiated by misdirection or whether the sentence
imposed can be said to be startlingly inappropriate or to induce a sense of
shock or whether there is a striking disparity between the sentence imposed

14 2010 (1) SACR 55 (SCA) at para [11].
15 S v Combrinck [2011] ZASCA 116; 2012 (1) SACR 93 (SCA) at para [15].
16 1999 (2) SACR 238 (SCA) at paragraph 10
and the sentence the Court of Appeal would have imposed. All these
formulations, however, are aimed at determining the same thing; viz whether
there was a proper and reasonable exercise of the discretion bestowed upon
the Court imposing sentence. In the ultimate analysis this is the t rue inquiry.
Either the discretion was properly and reasonably exercised or it was not. If it
was, a Court of appeal has no power to interfere; if it was not, it is free to do
so."

[42] Applying the principles set out in S v Zinn17 this court had regard t o the
evidence tendered in mitigation and in aggravation of sentence. The appellant
argued that the court a quo misdirected itself by not attaching sufficient weight to the
mitigating circumstances of the appellant, to deviate from imposing life imprisonme nt.
The appellant was 40 years old at the time of sentence, single with one minor child
of 10 years old. The child was currently staying with his maternal aunt, who is the
child's primary caregiver. The minor child was a recipient of a social grant. The
appellant had his own RDP house and generated income by leasing a room in the
house. The appellant was employed doing construction work prior his arrest. The
appellant was a first offender in respect of this offence but had unrelated previous
convictions. He was detained in custody after being convicted and awaiting sentence.
On appeal it was argued that the sentence was harsh and disproportionate under the
circumstances in this case.

[43] The respondent indicated that the personal circumstances of the appellant
were proper ly ventilated and cumulatively taken into consideration, by the trial court.
In aggravation of sentence the respondent argued that the child complainant was 10
years old at the time of the offence and was sexually penetrated more than once.
The incident ha s impacted the child complainant, especially as no remorse was
shown, as alluded to, by the probation officer indicating that the court should not
deviate, from the prescribed minimum sentence.


17 1969 (2) SA 537 (A) at 540G
[44] The court a quo considered all the applicable legislati on, the principles as laid
out in State v Malgas18 and found no substantial and compelling factors were
present which warranted the court to be merciful. In considering all the relevant
factors, the court a quo was satisfied that the applicable term of lif e imprisonment
rendered the prescribed sentence just, in that it was not disproportionate to the
offence, the appellant and the needs of society. To impose the prescribed term
would not result, in an injustice being done, and as such the sentencing court w as
entitled to impose the prescribed sentence. The court a quo could therefore not be
faulted for imposing the sentence of life imprisonment on the appellant.

[45] This court had regard to the sentiment expressed by the SCA in Maila v The
State where the approach to sentence of a minor was expressed as follows,

"[58]The appellant infringed the right to dignity and the right to bodily and
psychological integrity of the complainant, which any democratic society (such
as South A frica) which espouses these rights, including gender equality,
should not countenance for the future of its children, their safety and physical
and mental health. In S v Jansen19, the court stated it thus:

'Rape of a child is an appalling and perverse abus e of male power. It strikes a
blow at the very core of our claim to be a civilised society. ... The community
is entitled to demand that those who perform such perverse acts of terror be
adequately punished and that the punishment reflect the societal cens ure. It is
utterly terrifying that we live in a society where children cannot play in the
streets in any safety; where children are unable to grow up in the kind of
climate which they should be able to demand in any decent society, namely in
freedom and wi thout fear. In short, our children must be able to develop their
lives in an atmosphere which behoves any society which aspires to be an
open and democratic one based on freedom, dignity and equality, the very
touchstones of our Constitution. '


18 2001 (1) SACR 469 (SCA )
19 S v Jansen 1999 (2) SACR 368 (C) at 378G -379B.
[59]Takin g into account Jansen, Ma lgas, Matyityi, Vilakazi and a plethora of
judgments which follow thereafter as well as regional and international
protocols which bind South Africa to respond effectively to gender -based
violence, courts should not shy away from i mposing the ultimate sentence in
appropriate circumstances, such as in this case. With the onslaught of rape
on children, destroying their lives forever, it cannot be 'business as usual'.
Courts should, through consistent sentencing of offenders who commit
gender -based violence against women and children, not retreat when duty
calls to impose appropriate sentences, including prescribed minimum
sentences.

[46] To impose the prescribed term would not resul t in an injustice being done and
as such the sentencing court was entitled to impose the prescribed sentence. The
court a quo could therefore not be faulted for imposing the sentence of life
imprisonment on the appellant.

The appeal on sentence also stands to fail.

[47] In the result the following order is made

[47.1] The Appeal on both the conviction and sentence is dismissed.



PILLAY AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION POLOKWANE

I AGREE


KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE


APPEARANCES:

Counsel for the appellant : Adv MUTHIVHITHIVHI TE
Instructed by : POLOKWANE JUSTICE CERTRE

Counsel for the respondent : Adv MULAUDZI R
Instructed by : DPP POLOKWANE

Date heard : 29 November 2025
Electronically circulated on : 14 April 2025