REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A37/2024
(1) REPORTABLE: NO
(2) 0 OTHER JUDGES: NO
(3) REVI
-i I(\ z / n ·7 5 ~
In the matter between:
FRANCE MAHLANGO Appellant
and
THE STATE Respondent
JUDGMENT
MOTHA, J
Introduction
[1] Following his conviction on two counts of rape read with the provisions of s
51(1) of the Criminal Law Amendment Act 105 of 1977, the appellant was
sentenced to two life imprisonment terms. The appellant has an automatic right
of appeal against the sentence. However, during the hearing, the appellant's
counsel proffered that the conviction and sentence of the appellant on count 1
is not susceptible to any misdirectio n and cannot be disturbed . Accordingly , this
court is seized with the conviction and sentence on count 2.
Grounds of appeal
On conviction
[2] The appellant's grounds of appeal can be summarised as follows:
• That the learned Magistrate erred in finding that the State had proven its
case beyond reasonable doubt.
• That the learned Magistrate erred in finding that the appellant's version
was not reasonably possibly true.
On sentence:
• That the learned Magistrate 's imposition of the sentence of life
imprisonment is strikingly and shockingly inappropriate in that it is out of
proportion to the accepted mitigating factors.
• That the learned Magistrate disregarded time spent by the appellant
awaiting trial.
• Furthermore , that the court erred in not finding that substantial and
compelling circumstances existed which justified a deviation from the
prescribed minimum sentence.
The versions in brief
[3] In proving count 2, the state called a 10-year-old boy-child to the stand. He
testified that the appellant invited him and a 10-year-old girl-child into his shack.
Once they were inside the shack, he closed the door and switched off the globe.
He undressed the 10-year-old girl-child's trousers and put his penis on her
anus. He said that it was not going through. Under cross-examination , the boy
child testified that the appellant inserted his penis into the girl-child's vagina.
Once the appellant was finished with the girl-child, he testified that the appellant
tried to put his penis inside his anus, but it did not go in. After giving them
money, the appellant allowed them to go.
2
[4] To the stand, the state called the girl-child, who corroborated the boy-child's
testimony . She testified that the appellant inserted his penis into her anus and
did the same to the boy-child's anus.
[5] The appellant testified that he treated the kids as his children, and they used to
help him with cleaning the salon. He denied sexually molesting or raping the
children. He suspected that Mzwandile was behind these lies because
Mzwandile dated the appellant's ex-lover.
Ad count 2
[6] The appellant's appeal against count 2 pivots around the word "sexual
penetration ". Faced with a similar situation, the court in the matter of Matya/a v
S1 held:
"The thrust of the appellant's attack against the conviction before this court
concerned the question of whether the state had proven beyond reasonable
doubt that there had been penetration to constitute the offense of rape. In this
regard, the appellant's counsel relied heavily on Dr Zikalala's inconclus ive
findings. However, section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 provides that "any person ("A") who
unlawfully and intentionally commits an act of sexual penetration with a
complainant ("B''}, without the consent of "B" is guilty of the offence of rape". In
addition "sexual penetration " is defined as "any act which causes penetration
to any extent whatsoever by -(a) the genetical organs of one person into or
beyond the genetical organs, anus, or mouth of another person". Therefore the
fact that there were no visible injuries in the private organs of the two minor
children on its own, does not help the appearance cause any penetration no
matter how slight constitutes sexual penetration , and therefore rape. The
expanded definition in terms of SC3 is applicable to all forms of sexual
penetration without consent."2
' 2015 ZAGPPHC 52 (30 January 2015 ).
2 Supra para 13.
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(7] Relying on the evidence presented in court, the appellant submitted that the
state did not prove its case beyond a reasonable doubt that penetration had
occurred. The evidence relied on reads:
[8] The boy-child testified that
"He tried to put his penis on my anus then I said it is not going through."
(9] The prosecutor asked the following:
"And then what happened ?"
[1 OJ The boy-child answered :
"I also told him that it is not going in or through, so it is not possible"
[11] The prosecutor :
"And what happened then?"
(12] The boy-child said:
"Then, your worship, it did not happen. And then he left us, and we wear our
trousers."
(13] The assertion that there was not any penetration must be measured
against the decided cases on this aspect. In the matter of JCS v The State3, the
court held:
"Dr Van Wyk's testimony to the effect that because the complainant's hymen
was intact, she had never been penetrated was disputed by Dr Sommerv ille. Dr
Sommerville testified that the hymen would not necessarily be torn after
penetration because it will depend on the extent of the penetration . In any
event, Dr Van Wyk did not testify about sexual penetration as defined in our
law. Even under the common law. when rape was narrowly defined as penile
penetration of the vagina without consent, the slightest form of penetration was
sufficient to prove penetration . 'Sexual penetration ' is defined in the Act as, inter
alia, including any act which causes penetration to any extent whatsoever by
any other part of the body of the person into or beyond the genital organs or
3 2022 ZASCA 108 (15 JULY 2022)
4
anus of another person. It is clear from the definition that the slightest form of
penetration is enough to constitute penetration . Penetration certainly does not
mean that the hymen must be torn as Dr Van Wyk testified. Dr Van Wyk's
opinion is clearly untenable and was correctly rejected"
[14] From the case law, it is patent there need not be any injuries to conclude
that there was penetration . Therefore , the fact that the J88 form of the boy-child
reflected no anal injuries is of no moment and, in and of itself, does not prove
that there was no penetration . The reality is that this court is confined to the
papers before it. When examining the aforementioned verbal exchange, can
this court conclude that there was penetration , however, slightly? Penetration
is not understood to mean the touching of any other part of the body of a person
to the genital organ of another. Penetration involves going into or beyond the
genital organ, even in the slightest form. The state must prove beyond a
reasonable doubt that there was penetration.
[15] I am alive to the fact that the state does not need to prove its case
beyond a shadow of all doubt. As it was stated in State v Ntsele 1998 (2) SASV
178 at page 182 b. However, the state bears the onus, not the appellant. In the
matter of S v \I, 4the court stated that:
"It is the right that there is no obligation upon an accused person, where the
State bears the onus, 'to Convince the court'. If his version is reasonably
possibly true, he's entitled to his acquittal even though his explanation is
improbab le. A court is not entitled to convict unless it is satisfied not only that
the explanation is improper but that beyond any reasonable doubt it is false."5
[16] The boy-child testified that it was not going in or through. I am of the view
that the state did not prove the offence of rape beyond a reasonable doubt. In
the result, the court a qou misdirected itself in concluding that the state had
4 2000(1) SACR 453
s Supra para 455 b
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proven its case on count 2 beyond a reasonable doubt. I am in full agreement
with the submission of the appellant's counsel that the court a quo should have
returned a guilty verdict of attempted rape, a competent verdict. Counsel for the
respondent submitted that the evidence accepted by the trial court on count 2
proves attempted rape. Consequently, the verdict of rape is set aside, and the
appellant is found guilty of attempted rape on count 2.
Sentence
[17] In mitigation, the appellant submitted the following factors:
• He is a Mozambican national and was 39 years old at the time of
sentencing .
• He has two younger siblings.
• Both his parents are still alive but divorced.
• He was raised by his mother.
• He dropped out of school in an unspecified grade due to financial
problems .
• He is married and has four children who are aged 18, 15, 13, and 7.
• He is a first-time offender.
• He was kept in custody awaiting trial for 2 years and 6 months.
• He was self-employed as a hairdresser .
[18] Addressing this very issue of personal circumstances in serious cases,
the court in Vilakazi v The State6 held:
'The personal circumstances of the appellant, so far as they are disclosed in
the evidence, have been set out earlier. In cases of serious crime, the personal
circumstances of the offender, by themselves, will necessarily recede into the
background . Once it becomes clear that the crime is deserving of a substantial
period of imprisonmen t the questions whether the accused is married or single,
whether he has two children or three, whether or not he is in employment , are
in themselves largely immaterial to what that period should be, and those seem
8 (576107) (2008] ZASCA 87
6
to me to be the kind of 'flimsy' grounds that Malgas said should be avoided. But
they are nonetheless relevant in another respect."7
[19] To strike a balance, this court must consider the aggravating factors too.
It is not without significance that the appellant's victim was a 10-year-old child.
Being in a position of authority as an adult, a businessman , and a male figure,
he was supposed to help protect, and not harm, the child. The victim impact
report is most worrying because it indicates that the child cries and becomes
very angry when he thinks of the incident. He has turned into an aggressive
and stubborn person. This has affected his academic performance . The
appellant abused the trust that the parents of the child placed in him.
[20] In passing down a sentence, this court is guided by the principles stated
in the well-known and often-quoted case of S v Rabie, 8 where the court said:
"Punishment should fit the criminal as well as the crime be fair to society and
be blended with the measure of mercy according to the circumstances . "9
[21] Little has changed in the 50 years since Rabie, the main purpose of
punishment remains the following: deterrent, preventative , reformative and
retributive . Finally, in imposing a sentence on count 2, I am mindful of what was
said in State v Borgaards 10at para 41 :
"Ordinarily , sentencing is within the discretion of the trial court. An appellate
court's power to interfere with sentences imposed by courts below is
circumscribed . It can only do so where there has been an irregularity that results
in a failure of justice; the court below misdirected itself to such an extent that its
decision on sentence is vitiated, or the sentence is so disproportionate or
shocking that no reasonable court could have imposed it. A court of appeal can
7 Supra para 58
81975 (4) SALR 855 (SCA)
9 862 G-H,
•0 (2012] ZACC 23
7
also impose a different sentence when it sets aside a conviction in relation to
one charge and convicts the accused of another.Ii
(221 naving set asIae tne conviction of rape in count 2, I am of the view that
a sentence of 10 years direct imprisonment for count 2 is appropriate . It is trite
that this sentence of 10 years direct imprisonment will run concurrently with the
life sentence on count 1 .
I CONCUR JUDGE OF THE HIGH COURT
PRETORIA
RILL
JU E OF THE OURT
PRETORIA
For the Appellant:
For the Respondent: Adv. J. L. Kgokane instructed by Legal Aid South Africa
Adv. E. Mafunisa instructed by OPP
Date of appeal: 4 March 2025
Date of judgment: 7 March 2025
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