SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION , KIMBERLEY )
CASE NO: CA&R 60/24
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
THE STATE
and
H[...] , K Accused
Neutral citation: The State v K H[...] (Review No. 60/2024 ) (Victoria
West Case No. 01/2024) (06 May 2025)
Coram: Nxumalo, J
Date of Judgment: 06 May 2025
ORDER
THE SENTENCE AND CONVICTION OF THE COURT A QUO HANDED
DOWN ON 13 AUGUST 2024, ON THE OFFENDER IS HEREBY UPHELD.
JUDGMENT
Per: Nxumalo J
INTRODUCTION :
[1] This is an automatic review in terms of Section 302 of the CRIMINAL
PROCEDURE ACT 51 of 1977 .1 On 13 August 2024 the offender , who at
all material times hereto was a 14 years old male child offender,2 was
found guilty by the Victoria West District Magistrate Court of contravening
the provisions of Section 3, read with Section s 1; 56; 56A; 57; 58; 60; and
61 of the Criminal Law (Sexual Offences and Related Matters)
Amendment 32 of 2007.3
[2] The offender was legally represented and his guardian, being his
biological mother, was present throughout the proceedings a quo .
OFFENDER’S STATEMENT IN TERMS OF SECTION 112(2) OF THE CPA
AND VERDICT :
1 Hereinafter referred to as “the CPA ”
2 Hereinafter referred to as “the offender /KH”
3 per CJ Abraham s, Acting Regional Magistrate
[3] Section 112(2)4 expressly stipulates if an accused or his legal adviser
hands over a written statement by the accused into Court , in which the
accused sets out the facts which he admits and on which he has pleaded
guilty, the Court may, in lieu of q uestioning the accused under Section
112(1)(b) ,5 convict the accused on the strength of such a statement and
sentence him as provided in the said sub section , if the Court is satisfied
that the accused is guilty of the offence to which he has pleaded guilty:
Provided that the Court may in its discretion put any question to the
accused in order to clarify any matter raised in the statement.
[4] On 13 August 2024 the offender , his mother and his legal representative
handed up a co -signed written statement into Court in which the accused
set out the facts which he admitted and on which he has pleaded guilty.
The Court a quo thereafter, in lieu of questioning the offender under
Section 112(1)(b),6 convicted him on the strength of the said statement.
[5] Of significance is that the offender declared as follows, in relevant part :
“1 …
2 …
3. … 19 September 2023 and at Kosmos street, Loxton in the district
of Pixley kaSeme, within the Regional Division of the Northern, I did
unlawfully commit an act of sexual penetration with the complainant
Ms B, a 6year old female by inserting my penis into her anus
without her consent.
4. I admit that on the date in question I was playing with the said
complainant and other kids. I took the complainant under the
bridge undress her and I also undress myself (sic). I asked her to
4 ibid
5 ibid
6 ibid.
lay on her stomach and climbe d on top of her back. I then inserted
my pennis (sic) into her anus and had sexual intercourse without
her consent. Whilst I was busy having sex with the complainant
another child caught us and went to call elderly people. I then stop
and ran away.
5. I admit that I had sexual intercourse with the said child who was 6
years old without her consent by inserting my penis into her anus.
6. I admit that my intention was to have sexual intercourse with the
said child without her consent.
7. I admit that my actions were wrongful and punishable in a Court of
law.
8. I had no right or permission to commit this offence.
9. I therefore regret my conduct and plead guilty freely and voluntarily
without undue influence.
This statement was made and signed in the presence of my
guardian who is mother Ms D […] H[...] .”
[6] Regard being had to the foregoing; I am of the opinion that the Court a
quo was correctly satisfied that the accused is guilty of the offence to
which he has pleaded guilty.
SENTENCE :
[7] The offender thereafter was sentenced to compulsory residence in a child
and youth care centre, in terms of Section 76 of the CHILDREN’S ACT 38
of 2005; providing a programme referred to in Section 191(2)(j) of the said
Act;7 until he reaches the age of 21 years. He was therefore admitted to
the De Aar Secure Care Centre, with due regard to the information
obtained by the probation officer referred to in Section 71(3), ibid. The
Court a quo also ordered that the sentence be brought to attention of the
functionaries in the prescribed manner. It also ordered that the offender
was to be immediately admitted to the said Centre and not to be held at
any cell or lock -up. Further, it was ordered that the matter be retained on
the Court a quo’s roll for one month i.e. 13 September 2024, to confirm
whether the child was admitted accordingly.
[8] The offender’s mother is a single unemployed parent with three other
children ranging from 12 to 19 years of age. He is the third born. The
family resides at the offender’s maternal grandparents’ three -room brick
house with a one-room shack. At all material times hereto, the offender
was staying elsewhere with a friend. He is a child support beneficiary.
His mother reported that the offender is a ddicted to dagga and dropped
out of school in 2023.
[9] According to the Presentencing Report on the offender, it was observed
that he did not realise that he was causing pain to the victim because he
was very thrilled when he said: “Ek het lekker gevoel .” When asked if the
cries of the victim did not stop him, he said: “Sy het nie gehuil nie, sy het
ma net gesug.”
[10] It is clear from the foregoing that the offender has a criminal attitude.
People with criminal attitudes think crime is part of life or out of their
control and tend to make excuses for why they commit same. The
offender seems to have been exposed to cir cumstances that forced him
not to develop according to expected or morally acceptable milestones.
7 To wit: (a) Rhythm of Life; (b) Playing through the Forest; (c) Wakeup Call; and (d) In the Mirror.
Disturbingly, neither the offender nor his mother seems to have
apologised to the victim or her family. The offender’s mother is presenting
herself as a vic tim of his transgressions.
VICTIM IMPACT REPORT :
[11] The victim is the second born of three children ranging from 7 months to
12 years. She was interviewed by the Social Worker in the presence of
her biological mother , Ms S […]. According to the victim’s mother, she
described her ordeal as follows: She was walking with a friend to her
mother’s house from town. On their way , they encounte red the offender
and he chased after them shouting that he will show them something.
When he got hold of the victim, he threatened her with a stick with which
he hit her before raping her. The victim struggled to sleep after the
incident and has flashbacks of same and visuals of the offender. She also
struggled to work fast and tires easily. Her sleep has , however , now
improved.
DETERMINATION :
[12] It is so that the offender has committed a very serious Schedule III
offence, which he has admitted committing and pleaded accordingly. The
victim is a 7 -year-old child. Whilst the damage of the offence might not be
fully visible at present, it might resurface later in her development. It is so
that children and young pe ople who have been sexually abused can suffer
a range of psychological and behavioural problems from mild to severe, in
both the short and long term.
[13] The Pre -Sentencing Report , however , states that the offender expresse d
feeling good and enjoying same. That he appears not to have been
considerate of the victim’s feeling or the fact that what he was doing to her
was wrong. The author of the report is of the view that the offender needs
to be redirected from developing a more harmful behaviour that will put
him more at risk and threaten the interests of the innocent members of
society at large.
[14] It is so that the offender is guilty of a Schedule III offence , which damages
cannot be compensated. To this extent, a fine as an option was correctly
out of the question. Similarly, a suspended sentence is not a suitable
alternative in view of the fact it is reported that the offender’s mother has
no control over his behaviour. Correctional supervision was also not
deeme d appropriate in the circumstances.
[15] The objectives of sentencing children to compulsory residence in children
and youth care centres is to encourage them to understand the
implications of , and be accountable for the harm caused. To promote an
individualised response which strikes a balance between the
circumstances of the child; the nature of the offence and the interests of
society. It also ensures that any necessary supervision, guidance ,
treatment or services which form part of the sentence assi st the child in
the process of reintegration.
[16] It is so that the Probation Officer has contacted the centre in question and
has spoken to the responsible Social Worker who has indicated that there
is space available should the offender be sentenced to compulsory
residence. The centre in question also has a range of programmes that
the offender could benefit from for his developmental needs.
[17] After considering the circumstances of the offender; the seriousness of the
offence; the interests of the victim and society the Probation Officer
recommended that the offender be sentenced in terms of Section 76 of the
CHILD JUSTICE ACT 75 of 2008. It was also recommended that the
offender be placed at the De Aar Secure Care Centre for the period that
would be determined by the Court a quo .
[18] All the foregoing has been taken into full consideration by the Court a quo .
The proceeding s in this cas e therefore appear to me to be in accordance
with justice.
ORDER :
[19] In the premise, the following order must issue:
THE SENTENCE AND CONVICTION OF THE COURT A QUO HANDED
DOWN ON 13 AUGUST 2024, ON THE OFFENDER IS HEREBY UPHELD.
________________________ __
JUDGE APS NXUMALO
NORTHERN CAPE DIVISION
KIMBERLEY
I Concur.
________________________ __
JUDGE A STANTON
NORTHERN CAPE DIVISION
KIMBERLEY