2
with the provisions of the criminal law Amendment Act, 105 of 1997. Sentences were
imposed as follows: 7 years imprisonment for the count of assault with intent to cause
grievous bodily harm and life imprisonment in respect of the count of rape. The
appellant has an automatic right of appeal in terms of section 309 of the c riminal
procedure Act, 51 of 1977 read with sections 10 and 11 of the Judicial Matters
Amendment Act 42 of 2013.

Condonation
[2] The appellant failed to prosecute his appeal timeously. He has therefore filed
an application for condonation for the late filing of the appeal accompanied by an
affidavit in support of the application.

[3] The appellant’s Notice to appeal is late by one year and ten months. The
explanation advanced by the appellant for the late prosecution of the appeal is that,
the Notice of appeal was served on the clerk of the Regional Court within 14 days from
the date of sentence. However, the Notice was erroneously not served on the
Registrar of the High Court as well as the Director of Public Prosecutions. This was an
oversight by the Legal Aid office. Four months later when an enquiry was made
regarding the progress o f the appeal, the appellant was informed that the transcripts
of the proceedings were not available yet to enable the hearing of the appeal. In
January 2024 another Legal Aid practitioner was assigned. The Notice of Appeal was
only served in December 2024.

[4] It is trite that condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it to the court’s indulgence. It must show
sufficient cause. This requires a party to give a full explanation for the non -compliance
with the rules or court’s directions. Of great significance, the explanation must be
reasonable enough to excuse the default1.

[5] Factors which are usually considered in an application of this nature include the
degree of non -compliance, the explanation therefore, the importance of the case, the
prospects of success, the respondent’s interest in the finality of the judgment, the

1 Grootboom v National Prosecuting Authority [2013] ZACC 37; 2014(2) SA 68 (CC) par 23.


3
convenience of this court and the avoidance of unnecessary delay in the
administration of justice2.

[6] The application for condonation is not opposed by the respondent. There
seems to be no prejudice to the respondent. The issues raised by the appellant are
important for his rights to have finality in the matter without unnecessary delay. The
appellant ’s explanation is accepted. Good cause has been shown for condonation to
be granted. Accordingly, condonation for the late filing of the appeal is granted.

Factual Background
[7] The evidence for the State was that, the complainant and the appellant were in
a romantic relationship which terminated in March 2018. The complainant entered
another relationship with someone else. On 25 Ma y 2018 the complainant left her
parental house at around 23h00 for an appointment she had with her new boyfriend.
The appellant unceremoniously emerged and asked the complainant where she was
going. An altercation ensued between them. The complainant fell t o the ground and
the appellant climbed on top of her and choked her. Whilst she was screaming and
gasping for air, her tongue was sticking out. The appellant bit the tip of her tongue off.
He then led her to an abandoned house where he choked her again and instructed
her to undress of her clothing and raped her. The appellant instructed her to wash
herself in a stream, where after he forced her to drink a concoction of herbal medicine.
He left with her to his parental home. The appellant dispos sessed her of the cellphone
and a pair of shoes . He ultimatel y accompanied her home.

[8] Upon her arrival home, she went to her mother’s bedroom and switched the
light on. She was trying to explain to her mother of what had transpired but was unable
to speak due to the injury on the tongue. She wrote on a piece of paper indicating that
the injuries were inflicted by the appellant. The complainant’s mother accompanied
the complai nant back to the bush where the assault took place in search of the tip of
the tongue , which they recovered . She was taken to the clinic where she was given a
referral to go to the hospital. When the complain ant’s mother approached the police
station to lay charges, she was informed by the police officers that the complainant

2 Federated Employers Fire and General Insurance Co. Ltd & Another v McKenzie 1969(3) SA 360 (A) at 362F -
G.


4
should personally lay charges. It was therefore, only u pon her discharge from hospital,
that the complainant lay charges and reported for the first time that the appellant also
raped her and dispos sessed her of her cellphone and shoes.

[9] The version of the appellant was that he was still in a relationship with the
complainant when the assault took place. He stated that he found the complainant and
another man having sexual intercourse in public. He confronted them and the man ran
away. A n argument ensued between him and the complainant . He slapped the
complainant with an open hand on the left cheek. When the complainant tried to run
away, he caused her to trip up. The complainant fell to the ground face down. This is
what led to the complai nant biting her tongue off. Thereafter he left. The appellant
denie d ever choking, assaulting or raping the complainant.

Grounds of Appeal

Conviction

[10] The appeal on conviction is founded on the following grounds:

1. The trial Court erred in finding that the State proved its case beyond
reasonable doubt
2. The trail court erred in finding the appellant guilty of rape as defined in
section 51(1) Part I of Schedule 2, that is, rape involving the infliction of
serious bodily harm.
3. The trial court misdirected itself in that it returned a verdict which
constitutes a duplication of convictions and which resulted in a
duplication of punishment, in that, the facts relied on to sustain a
conviction of assault with intent to cause grievous bodily harm, is the
same set of facts relied on to find that the rape involves infliction of
grievous bodily harm.
Evidence of the state witnesses



5
[11] In this appeal, the appellant’s contention is that the Magistrate erred in finding
that the State proved its case beyond reasonable doubt.

[12] A court of appeal should be slow in interfering with the findings of a trial court
unless if the appeal court finds that the trial court's findings of fact and credibility are
vitiated by irregularity, or unless also that an examination of the record revea ls that
those findings are patently wrong. The trial court's finding of fact and credibility are
presumed to be correct because the trial court, and not the court of appeal, has had
the advantage of seeing and hearing the witnesses and it is in the best po sition to
determine where the truth lies3.

[13] The findings of the Regional Court Magistrate were as follows: The complainant
made a good impression to the court; her evidence was related to the court with
sufficient clarity and cogency; her version was thoroughly tested against the
probabilities and i mprobabilities and that it was chronological and detailed. Even
though she testified years after the incident, her recollection of the events was clear.
The Regional Court Magistrate found that the complainant’s version was probable in
respect of the fact that she was no longer in a relationship with the appellant; that she
was going to meet her new boyfriend at around 23h00 and had no reason to be
dishonest about the time. On the othe r hand, t he appellant’s reasons for disputing the
time she encountered the complainant is obvious in that he wanted to keep the
duration of his interaction with the complainant to the bare minimal. The Regional
Magistrate found the appellant’s version that the comp lainant was engaged in sexual
intercourse in public, at around 5 in the morning to be improbable and rejected it. The
discrepancies in the evidence of the State was dealt with and were found to have been
immaterial. Further that, the complainant and her mother did not attempt to exaggerate
their evidence. The complaina nt’s mother was honest enough to admit that the
complainant had not reported the rape to her.


The delayed First Report


3 S v Jackson 1998(1) SACR 470 (SCA).


6
[14] Regard was had by the Regional Magistrate to the trauma the complainant had
been through. She was physically not able to communicate immediately after the
incident. When she consulted with doctor Mnisi he was asking her questions and she
responded by usin g gestures. The focus, from the moment she entered her mother’s
bedroom when she arrived home until she was seen by the doctor, was on the obvious
injuries, which was the severed tongue. The Regional Magistrate found that to expect
a full report under such circumstances would have been unreasonable.

[15] There are two sections of the General Law (Sexual Offences and Related
matters) Amendment Act4 which require scrutiny . They are sections 58 and 59, which
read as follows:

‘58 Evidence of previous consistent statements

Evidence relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the alleged commission of a sexual
offence: Provided that the court may not draw any inference only from the absence of
such previous consistent statement.

59 Evidence of delay in reporting
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.’

[16] The court in S.J v S 5 stated that the failure of a complainant to report a rape as
soon as possible cannot be the benchmark for determining whether the complainant
has been raped. Studies have shown, and common -sense dictates, that people differ
in their responses to traumatic events, and are inclined to display individualised
emotional responses to these, particularly when the experience is an embarrassing
and shameful one which involves an assault on the bodily integrity of the victim. A
report of this nature would ordinarily involve descriptions of private and intimate parts

4 Act 32 of 2007.
5 (CA&R 26/21) [2022] ZAECBHC 34 (6 December 2022 ) par 40 .


7
of the body. Some people are encouraged to be quite at ease doing this. For others,
it is simply taboo.

[17] The fact that the complainant was unable to talk; that she was responding to
what doctor Mnisi was asking her, by using gestures, and that the pain persisted even
when she consulted with Sister Ngubeni almost two weeks after the incident is not in
dispute. Nor, did the appellant challenge her emotional status on appeal. The
complainant’s mother, doctor Mnisi and sister Ngubeni testified about the
complainant’s condition.

[18] There is no time limit for reporting a rape. In Monageng6 the court held that, It
has been firmly established in a number of studies on the impact of violence, including
rape, against women that victims display individualised emotional responses to the
assault7 Some of the immediate effects are frozen fright or cognitive dissociation,
shock, numbness and disbelief8. It is therefore not unusual for a victim to present a
façade of normality.

[19] In S v Cornick and Another9 the convictions were upheld where the
complainant laid charges 19 years after the event. The delay was fully explained, and
the complainant had been found to have been a credible witness.

[20] Reporting of a rape is not an exact science. It is an accepted principle that in
sexual offences cases that the complainant is expected to make a report at the earliest
convenience. However, failure to report ‘timeously’ or even not at all, does not mean
a person was not raped. The circumstances will determine the meaning of ‘timeously’
B C v S 10.


6 [2008] ZASCA 129 (01 October 2008 ) at par 23
7 S Bollen et al ‘ Violence Against Women in Metropolitan South Africa: A study on impact and service delivery ’
Institute for Security Studies (1999) Monograph No 41.
8 S Ullman & R A Knight ‘Women’s Resistance Strategies to Different Rapist Types’ (1995) 22 No 3 Criminal
Justice & Behaviour 263, 280; S Katz & M A Mazur Understanding the Rape Victim: A Synthesis of Research
Findings (1979) 172, 173. M Symonds ‘Victims of Violence: Psychological effects and after -effects’ (1975) 35
(1) American Journal of Psychoanalysis 19 - 726, 22.
9 2007(2) SACR 115 (SCA) .
10 (A8/2020) [2020] ZAFSHC 180 (30 October 2020).


8
[21] From the facts in the present case, clearly, the complainant had been seriously
injured. The Regional Court Magistrate was correct in finding that the focus was on
the obvious injury, that is, the severed tongue. Consequently, no adverse inference
can be d rawn from the delay in reporting the rape.

[22] There is no reason why the Regional Magistrate should be faulted for accepting
the truthfulness and credibility of the evidence by the State witnesses.

Rape Conviction
[23] The appellant does not challenge the conviction on assault with intent to cause
grievous bodily harm. However, he implored this court to revisit the sentence in the
count of rape, should the appeal on conviction fail.

[24] He contends that the Regional Court Magistrate erred in convicting him of rape
as it cannot be found that the assault is linked to the rape which, according to the
complainant took place at a different location, that is, at an abandoned house, some
fifteen minutes away from where the assault took place. This, according to the
appellant, is an indication that a new intention to commit a different offence had been
formed.

[25] Essentially, the appellant contends that there was a duplication of convictions
and therefore a duplication of punishment. Further that, the rape did not involve the
infliction of grievous bodily harm as provided in section 51(1) read with Part I of
Sched ule 2 of the Criminal Law Amendment Act11 Therefore, he should not have been
sentenced to life imprisonment but to 10 years imprisonment, which was the applicable
sentencing regime at the time of the commission of the offence.

[26] In S v BM12 the Court remarked as follows regarding duplication of convictions:
‘It has been a rule of practice in our criminal courts since at least 1887 that ‘where the
accused has committed only one offence in substance, it should not be split up and
charged against him in one and the same trial as several offences”. The test is
whether, taking a common -sense view of matters in the light of fairness to the accused,

11 Act 105 of 1997.
12 [2013] ZASCA 160; 2014 (2) SACR 23 (SCA) para 3


9
a single offence or more than one has been committed. The purpose of the rule is to
prevent a duplication of convictions on what is essentially a single offence and,
consequently, the duplication of punishment. ’

[27] If the evidence which is necessary to establish the one charge also establishes
the other charge, there is only one offence. If one charge does not contain the same
elements as the other, there are two offences. R v Gordon13. If there are two acts,
each of which would constitute an independent offence, but only one intent, and both
acts are necessary to realise this intent, there is only one offence. See R v Sibuyi14.

[28] There must be emphasis on the fact that the Criminal Law Amendment Act does
not create new offences, but a sentencing regime. Where a rape was committed and
there was assault with intent to cause grievous bodily harm, that is aggravating for
sentencing pur poses. It does not, however, create the crime of rape with intent to do
grievous bodily harm. It is for this reason that, sentencing jurisdiction must not be
confused with the elements of a crime. The provisions of the Criminal Law Amendment
Act are theref ore relevant for sentencing.

[29] The facts of this case show that two separate offences were committed. The
Supreme Court of Appeal in Mthanti v S15 pointed out that, Part I of Schedule 2 of the
Criminal Law Amendment Act, which prescribes the minimum sentence of life
imprisonment for rape offences ‘involving the infliction of grievous bodily harm’, must
be understood within the context of the rampant levels of sexual offences in this
country. The purpose is to ensure that appropriate punishment is imposed for violent
conduct that is designed to induce submission to sexual intercourse, given that rape,
on its own, is a violent, degrading act.

[30] In this case, the appellant chocked the complainant and bit her tongue off to
subdue her , so that he could rape her. He had to lead her to an abandoned house
away from the street where he accosted her to avoid being seen by members of the
public.


13 1909 EDC 254 at 268 -269
14 1905 TS 170 (B C v S (A8/2020) [2020] ZAFSHC 180 (30 October 2020).
15 (859/2022) [2024] ZASCA 15; 2024(1) SACR 335 (SCA) (8 February 2024) .


10
[31] Consequently, the finding that the rape involved the infliction of grievous bodily
harm, cannot be faulted. The appellant, therefore, fell to be sentenced as provided in
section 51(1) read with Part I of Schedule 2 of the Criminal Law Amendment Act .

Sentence
[32] The appellant’s grounds of appeal can be crystallized as follows:
1. That the trial court did not have jurisdiction to impose a sentence of life
imprisonment. It misdirected itself and acted ultra vires its penal jurisdiction of 10
years imprisonment.
2. That the trial court erred in that the seriousness of the offence was over -
emphasized at the expense of the personal circumstances of the appellant.

[33] The appellant is not challenging the sentence of 7 years imprisonment in
respect of the count of assault with intent to cause grievous bodily harm.

[34] It is trite that sentencing is within the discretion of the trial court and that a court
of appeal will not lightly interfere with the sentence imposed. The powers of the court
of appeal are relatively limited to those instances where the sentence is viti ated by
irregularity or misdirection or where there is a striking disparity between the sentence
passed and that which this court would have imposed.16 This court on appeal cannot
simply juxtapose its views and opinions on sentence and then conclude that the
sentence of the court a quo is inappropriate if it differs from what this court would have
done. It is only when the trial court has exercised its discretion in an improper manner
or misdirected itself that interference will be warranted.17

[35] The Regional Court Magistrate considered the traditional factors of the triad,
such as the personal circumstance of the appellant, the nature and seriousness of the
offences, the interest of the community; the impact the offences had and continues to
have on the complainant.


16 Grobler v S 2015 (2) SACR 210 (SCA) at para 5.
17 S v Rabie 1975 (4) SA 855 (A). See also S v Pieters 1987 (3) SA 717 (A).


11
[36] The Criminal Law Amendment Act18 was promulgated as a result of the public
outcry and agitation at the prevalence of serious and violent crimes that were ever
increasing and the effect such crimes had on the society as whole. This legislation is
intended to be the firm voice of disapprova l of the society in respect of the continued
increase of these offences. The Act therefore prescribes a variety of mandatory
minimum sentences in respect of a variety of such serious and violent crimes.

[37] Section 51(3) of the Act, confers a limited discretion upon the courts to depart
from the prescribed minimum sentences, as it creates two preconditions namely:
(a) It must determine if substantial and compelling circumstances are present that
justifies a departure from the prescribed sentence.
(b) The substantial and compelling circumstance(s) is to be placed on record.

[38] In S v Malgas19, the Supreme Court of Appeal held:
"… In short, the Legislature aimed at ensuring a severe, standardized, and consistent
response from the courts to the commission of such crimes unless there were, and
could be seen to be, truly convincing reasons for a different response. When
considering sentence, the emphasis was to be shifted to the objective gravity of the
type of crime and the public's need for effec tive sanctions against it. But that did not
mean that all other considerations are to be ignored. The residual discretion to decline
to pass the sentence which the commission of such an offence would ordinarily attract
plainly was given to the courts in re cognition of the easily foreseeable injustices which
could result from obliging them to pass the specified sentences come what may."

[39] The Regional Court Magistrate was apprised of the personal circumstances of
the appellant, which included inter alia that he was a first offender a nd 27 years old ;
he is not married and has two minor children with different mothers; both children
reside with their respective mothers and they are recipients of government social

18 Act 105 of 1997
19 S v Malgas 2001(1) SACR 469 (SCA) at par 8.


12
grant ; the highest level of education is grade 8. At the time of sentencing his partner
was expectant with their child. the time spent in custody before finalisation of the
matter was also considered. However, the appellant was on bail throughout until his
bail was cancelled due to his failure to appear in court .

[40] The complainant had decided to leave the appellant, but he could not bear to
imagine her with someone else. He then resorted to violence. It is a well -known fact
that intimate partner violence is the most common form of violence in this country. It
is incu mbent upon courts to impose appropriate sentences where violence is
perpetrated against women in the context of their relationships.

[41] The appellant showed lack of consideration to the trauma, the emotional
heartache and the permanent physical damage he has caused to the complainant. His
conduct, the nature of offences and the degree of its seriousness should attract a
harsher sentence.

[42] Notwithstanding his personal circumstances the Regional Court Magistrate
correctly found that there are no substantial and compelling circumstances that justify
deviation from the prescribed minimum sentence.

[43] Accordingly, life imprisonment in respect of the count of rape is appropriate .
There was no misdirection in the Regional Magistrate’s sentencing powers. It follows
therefore that, the appeal on sentence stands to fail.

Order

[44] The following order is made:
a. The application for condonation for the late noting and prosecuting the
appeal is granted.
b. The appeal is dismissed.
c. The conviction and sentence on both counts are confirmed.