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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
Case no: A301/2024
Regional Court case no: RCB 70/16
In the matter between:
C[...] W[...] APPELLANT
and
THE STATE RESPONDENT
Neutral citation:
Coram: Allie J and Bhoopchand AJ
Heard : 2 May 2 025
Delivered : 13 May 2025
Summary: Criminal Law -appeal - 65-year-old male convicted and sentenced to life
imprisonment for rape of 7-year-old step grand daughter -appeal on conviction and
sentence dismissed - on conviction: assessment of minor’s competency to testify on
appeal if record is missing, on s entencing : whether it is time to elevate
consequences to victim on par with triad of factors usually considered , victim impact
statements, grooming, missing parts of record on appeal.
ORDER
1 The Respondent’s application for condonation of the late filing of its heads of
argument is granted,
2 The appeal against conviction and sentence is dismissed.
JUDGMENT
Bhoopchand AJ (Allie J concurring) :
[1] The Appellant appeals his conviction and sentence arising from the rape of
his seven -year-old step granddaughter on 8 March 2016. The Regional Magistrate of
the Mitchells Plain Court (‘the Regional Magistrate’) convicted the Appellant o n one
count of rape and sentenced him to the prescribed minimum life imprisonment under
section 3 of the Criminal Law Amendment (Sexual Offences and Related Matters)
Act 32 of 2007. The Appellant invoked his automatic right of appeal under section
309(1)(a) of the Criminal Pr ocedure Act 51 of 1977 (‘CPA’) and augmented his
grounds of appeal.
[2] The Appellant ’s complaint against conviction related to the reliability of the
testimony of the Complainant, a single minor witness (‘the minor’) , the reliance on
the statement of the minor’s grandmother , who had died before the trial commenced,
and the State’s failure to call the social worker who received the first report of the
rape. The Appellant’s complaint against the sentence is that the Reg ional Magistrate
did not cumulatively assess the substantial and compelling circumstances , and the
effect of the punishment on him , while overemphasising the severity of the crime and
the interest s of society . The Regional Magistrate declined to deviate fr om the
prescribed minimum sentence in circumstances where he could .
CONVICTION
[3] The minor ’s evidence was led through an intermediary. She testified that she
accompanied the Appellant on her birthday in 2016 to Mitchells Plain by train. The
Appellant told her he wanted to buy her a birthday cake. He assured her that her
grandmother, with whom she lived, had permitted him to take her along. He
purchas ed the cake. He also bought food and drinks for them to consume. The
Appellant then led the mi nor to a secluded bush where he raped her. Seven years
had elapsed before the minor testified.
[4] The Appellant told the minor not to disclose the rape to her grandmother or
anyone else. On her return home, her grandmother punished the minor for
accompanying the Appellant without her permission. The grandmother asked the
Appellant to leave her home as he had taken the minor away on a false pretext. The
minor did not tell her grandmother or her aunt about the incident in the bush as she
feared a further beating.
[5] Shortly after the Appellant had left, news of the minor’s rape filtered to the
grandmother, but the minor’s father was implicated. The minor denied that the father
would commit an act of that nature and divulged that the Appellant was responsible.
She was taken to a social worker and subsequently to the clinic for an examination.
Her grandmother punished her for not disclosing the rape.
[6] Dr Matanda , a medical practitioner , testified on the findings of a colleague
who examined and completed the J88 medicolegal report . His testimony included
information recorded in the minor’s clinic file. The doctor who conducted the minor’s
examination on 18 April 2016 had passed away before the trial commenced. The
medical assessment occurred about a month and a half after the rape. The
grandmother accompanied the minor to the examination. The history provided by the
minor , as reflected in the clinical notes , was that she accompanied her
grandmother’s second husband, C[...] , to Mitchells Plain on 7 March 2016 . She
returned the same night and ‘admitted ’ to C[...] touching her genitals and inserting
his p hallus there. The note records that ‘ he gave her money to keep quiet ’. A further
note in the file referred to repeated vaginal penetration . Another note stated that ‘he
raped her many times’ . The note does not identify who the ‘he’ is , although the
context suggests it was the Appellant . It was also accepted that C[...] was the
Appellant.
[7] During the 2016 assessment, the minor cried and was uncooperative,
aggressive, and stubborn . Dr Matanda explained that this type of behaviour is
common in children who have been abused. Dr Matanda concluded that the clinical
findings , as recorded, were old injuries consistent with forcible attempted vaginal
penetration . They accorded with the history obtained and the time elapsed since the
incident. There was scarring in the posterior aspect of the vagina, and the hymen
was ir regular with a ‘bump’ on it. The minor had evidence of an ongoing genital
infection. The redness in the genital area arose from an infection.
[8] The J88 also recorded that the skin around the anal orifice was
hypopigmented with deep scarring at various parts. There was a thickening of the
rectal mucosa. Dr Matanda read from the notes that there was forcible attempted
anal penetration as well . The clinical signs around the minor’ s anal orifice were
indicative of anal penetration. The doctor was referred to the minor’s testimony which
indicated vaginal penetration alone . He explained that children can confuse the
vagin a with the whole recto -urogenital area.
[9] The minor’s grandmother died of natural causes on 19 December 2020. The
Regional Magistrate allowed the grandmother’s hearsay statement under the
provisions of Act 45 of 1988 after hearing the application by the State . The
grandmother stated that the minor was last se en at about 10h00 on her birthday and
returned at about 17h00. The grandmother ’s statement confirmed the minor’s
testimony in that she admitted to punish ing the minor for accompan ying t he
Appellant to Mitchells Plain. The grandmother did not want the minor to be alone with
the Appellant due to his inappropriate interest in women. The minor did not disclose
what the Appellant did. The grandmother’s statement was certified on 18 April 2016 ,
the day she and the minor reported to the social worker. The grandmother stated in
her statement that she had ‘recently ’ heard that the Appellant had sexually assaulted
her. On the timeline of this case, the grandmother’s statement was certified two days
before the minor underwent the medical examination. The State closed its case.
[10] The Appellant testified. He was married to the minor’s grandmother under
Islamic law. His wife allowed the minor to accompany him to Mitchells Plain. She
gave him the money to buy the cake. On arrival at Lentegeur station, they went to
the cake shop and bo ught cake and drinks for her party. He also bought her a pie
and a drink , which they ate. He denied that there were any bushes in the vicinity of
the cake shop. They returned home to celebrate the minor’s birthday. He estimated
that they were away for an hour. It was put to the Appellant that he had corroborated
the minor’s version from home to the cake shop and back. He h ad left out what
happened in the bushes. The Appellant denied that he had raped the minor. The
Appellant could not explain why the m inor would lie about the rape.
[11] The Appellant provided various versions of why he left his wife’s home on the
minor’s birthday in 2016 . He alleged that his wife and her son were abusing him on
an ongoing basis . He took his things that night and went to his sister , who lived in
Mitchells Plain. He was asked why he had suddenly left. He changed his earlier
testimony about the abuse he suffered at his wife's and her son’s hands and said
that he was watching television with her when he told her h e would visit his sister . He
testified under cross -examination that he left because he was missing his sister. The
Appellant did finally admit that he was suspected of wrongdoing on the day the rape
occurred.
[12] After departing the grandmother’s home, the Appellant took residence with
another woman until he was arrested. During his testimony, the Regional Magistrate
warned the Appellant that his story did not make sense, and he was not creating a
good impression w ith the Court.
[13] The Court found that the minor’s evidence was clear , satisfactory, and
consistent with the probabilities. Her evidence was supported by the grandmother’s
statement and the medical evidence. Her story was not something that she could
readily make up. The minor’s testimony that her grandmother beat her was
corroborated in the latter 's statement. The Appellant had lured the minor from home
with the promise of a birthday cake. The minor was excit ed about her birthday and
had pie and drinks with the Appellant. There was no reason for her to implicate the
Appellant for raping her. The Appellant’s version was so far removed from the
probabilities that it c ould not reasonably possibly have been true a nd was rejected by
the Regional Magistrate.
[14] The Appellant provided written argument that raised the issue of the minor’s
credibility . The Appellant submitted that a child’s evidence must be scrutinised
carefully.1 The Appellant cited the absent record of the competence inquiry , the
State’s failure to call the social worker who first heard the report of the rape , the
medical evidence suggesting repeated violations, and the minor’s description of how
the rape occurred . The Appellant ’s argument included a broad review of the
principles of assessing a child’s credibility. The danger in children's evidence can be
attributed to several factors, including their imaginativeness, memory limitations,
emotional distress, and consistency of their statements. Factors such as
susceptibility to suggestion can affect how much weight th eir testimony carries. The
danger of suggestibility can be ruled out by asking the person to whom the incident
was reported to describe how the child related the incident. The State did not call the
social worker to testify, nor could the grandmother testi fy. The Appellant argued that
the mere fact that a child sticks to a version should not be the only measure of
truthfulness. The J88 suggested other incidents, and the possibility exist ed that the
minor could not comprehend the action.
[15] The Appellant submitted that the Court a quo misdirected itself in finding that
the minor’s evidence musters the bar set by section 208 of the CPA.2 The
contradictions are of such a nature that they raise concerns about the truthfulness of
the minor. Th e Appellant is entitled to the benefit of the doubt and should be
acquitted. Appellant’s Counsel could not identify the contradictions in the minor’s
testimony. Her instructions were to highlight the contradictions between the
grandmother’s statement, the doctor’s report, the act involving the rape, and the
minor’s testimony.
1 R v Manda 1951 (3) SA 158 (A) at 163
2 An accused may be convicted of any offence on the single evidence of any competent witness
[16] The Appellant invoked the cautionary rules relating to child testimony to
support his contention that the Regional Magistrate misdirected. The first concerned
the minor’s mental competen ce to testify. The competency test for child witnesses is
primarily governed by Sections 162, 164, and 170A of the Criminal Procedure Act 51
of 1977 , which includes, among others , the appointment of an intermediary to assist
the child. The rationale for the test is to ensure that a child can understand the
importance of telling the truth and provide reliable testimony in court.3 The
competency test also assesses the child’s cognitive and communicative ability . The
Appellant was constrained about addressing the minor’s competence to testify as the
record of the test performed by the Regional Magistrate was missing .
[17] The absence of the record relati ng to the child's competence test can pose
challenges for the Appeal Court, but it does not necessarily impair the Court in
deciding the appeal. If the Appeal Court has access to the transcript of the child's
evidence, it can assess the credibility and reliability of the testimony. Courts
generally consider whether the trial court properly evaluated the child's ability to
testify and whether the absence of the co mpetency test record materially affects the
trial's fairness . In some cases, appellate courts have overturned convictions where
procedural irregularities in assessing a child's competency were found to be
significant.4 Courts must assess the credibility o f a child's testimony based on its
reliability and consistency rather than applying rigid cautionary rules. The
corroboration of the minor’s testimony , her ability to understand and recall details ,
and her demeanour ( the assessment of which is within the Court a quo’s exclusive
capacity), is ascertainable from the evidence and the assessment thereof by the
Regional Magistrate. Each child's testimony should be evaluated on its merits.5
[18] The assessment of the minor’s testimony from the record in dicated that she
could distinguish right from wrong. She asked to be take n home when the Appellant
began molesting her. She was even able to distinguish right from wrong when she
3 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development &
others 2009 (4) SA 222 (CC) paras 165 –167, S v Raghubar 2013 (1) SACR 398 (SCA) paras 4 –5,
Rammbuda v S (156/14) [2014] ZASCA 146 (26 September 2014) at paras 5 -8
4 S v Rammbuda supra , S v Mokoena, S v Phaswane 2008 2 SACR 216 (T)
5 Woji v Santam Insurance Co Ltd. 1981 (1) SA 1020 (A) at 1027 H -1028A
withheld information about the r ape from her grandmother fearing that she would be
punished for telling the truth whilst knowing that a wrong was perp etrated upon her.
The Regional Magistrate lauded the minor’s recall of an incident that occurred seven
years before her testimony . She remembered the events of that morning, the trip to
Mitchells Plain, the Appellant’s assurance that her grandmother approv ed her
accompanying him, the details of the visit to the cake shop, the rape and the trip
back home. The minor declared that she could not remember or did not know , when
the nature of the questions necessitated this response. Her evidence was reliable.
The Appellant corroborated her version in every respect bar the excursion into the
bushes and the rape. The grandmother’s statement and the medical evidence
served as further corroboration.
[19] The State’s failure to lead evidence from a witness who received the minor’s
first report of the sexual incident is less significant when it presented other evidence
to corroborate the minor’s rape. An assessment of the evidence does not reveal the
identity of the recipient of that first report . It could have been the doctor who
performed the medicolegal examination, the social worker with whom the minor
consulted, or the person who reported an alleged sexual incident affecting the minor
to the autho rities. The first report, which is hearsay, is admitted into evidence to
show consistency in the complainant’s testimony and reject a defence of consent;
the latter being inapplicable in the circumstances of this case. It is not proof of its
contents or co rroboration of the complainant. It serves to rebut any suspicion that the
complainant has lied about being raped.6 The Regional Magistrate indicated that the
absence of a first report witness testimony is insignificant in determining whether the
Court a quo should accept or reject the minor’s evidence.
[20] The Appellant then asserted that there was a contradiction between the
minor’s testimony and the medical evidence. The medical evidence suggested
repeated sexual penetrations, whereas the minor testified to just one incident. Whilst
the Appellant is correc t about the medical testimony, nothing turns on this aspect as
the State preferred one charge of rape against the Appellant and proved this charge
through the minor’s testimony.
6 Milton, South African Criminal Law and Procedure, volume 111, 1997, Juta
[21] The Appellant further asserted that there were contradictions in how the rap e
occurred. The Appellant suggested that the perpetration of the rape whil st the minor
remained seated was improbable. This was a theme that the Court pursued. The
minor’s testimony was that the Appellant lay on top of her whilst she remained
seated. The A ppellant’s legal representative did not sufficiently question the minor to
clarify this. A failure to adequately interrogate an aspect of testimony cannot be
ascribed as a contradiction or reflect on the minor’s credibility.
[22] In oral argument, Appellant’ s Counsel accepted that the Regional Magistrate
had thoroughly assessed the child’s competence to testify.
[23] The Court cannot fault the Regional Magistrate ’s judgment on conviction . The
Magistrate applied the necessary caution s to single witnesses and children’s
testimony .7 The minor’s evidence was trustworthy and of a high standard , and she
did not shy away from answering questions, no matter whether they were easy or
hard. The minor remembered what happened when she and the Appellant ar rived in
Mitchells Plain . The medicolegal evidence corroborated her allegation that she was
raped. The Appellant’s version correlated with the minors' except for the act of
sexual penetration. The Appellant’s version was removed from the general
probabilities to the extent that it could not reasonably possibly be true. The minor,
the grandmother, and the medical evidence contradicted him . His testimony, viewed
holistically, was improbable and ha d to be rejected. This Court agrees. The Appellant
has not persuaded this Court to uphold his appeal on conviction.
SENTENCE
[24] The Appellant was 57 years old at the time of the rape and a 65-year-old
pensioner at sentencing. He left school in grade 4. He was employed at a bakery
and later as a painter for the City of Cape Town. He was married for ten years and in
a relationship before the trial. He has one adult daughter and three grandchildren.
7 Y v S (537/2018) [2020] ZASCA 42 (21 April 2020), section 208 of the Criminal Procedure Act 51
of 1977 , Woji supra
The A ppellant suffers from high blood pressure, diabetes and Parkinson’s disease.
He was a first offender.
[25] During sentence proceedings in the Regional Court, the Appellant’s attorney
argued that the Appellant’s deteriorating health, the fourteen months he spent in
custody, and his being a first offender constituted substantial and compelling
circumstances warranting a deviation from the prescribed minimum sentence of life
imprisonment that applied to the offence perpetrated against the minor. The
Appellant did not submit a medical or probation officer ’s report .
[26] The State argued for the minimum sentence. It presented the minor’s victim
impact statement , compris ing a simple hand-drawn image of two people on grass in
a jagged circle with the overhead sun . The expressions captured on the faces of the
two people and the sun are conspicuous. The older male is smiling while the
younger female is sad, as the smiling sun looks away. The Regional Magistrate
described the image as haunting in the circumstances.
[27] The State argued that the minor was seven years old when the Appellant, her
grandfather, committed the offence . The Appellant’s demeanour during the trial was
devoid of remorse . The Appellant did not divulge the reason for committing the
offence against t he minor. The minor sustained injuries to her genital area . She was
too afraid to disclose what happened to her as she feared her grandmother would
punish her . The invasive violation of females continues unabated. The Appellant was
placed in custody as he did not comply with his bail conditions.
[28] The Regional Magistrate regretted the absence of a probation officer’s report
but noted that the Appellant agreed to proceed without it. The Court a quo
considered all submissions by the Appellant in mitigation and the State in
aggravation of sentence . The Regional Magistrate considered the Appellant’s
betrayal of the minor’s trust, the medical evidence of multiple rapes and injuries to
the minor’s anus, as aggravating factors. The minor’s parents did not live with her,
entrusting her upbringing to her g randmother and the Appellant. He held a position of
trust with his step -granddaughter , and even though he had an adult daughter and
grandchildren , he betrayed th e minor’s trust in a reprehensible manner . Instead of
showering the minor with love , affection, and protection, he raped her and left her
with injuries and a genital infection. The latter led the Regional Magistrate to
conclude that the Appellant did not use a condom.
[29] The Regional Magistrate considered each of the factors presented on behalf
of the Appellant , particularly his age and medical conditions . He concluded that on
the probabilities, the Appellant perpetrated the multiple rapes on the minor. Society
is revulsed and outraged by the rape of young children . The crime should be
punished in the interests of justice. The Regional Magistrate considered the crime,
the personal circumstances of the accused, and the community's interests and
reminded himself that each factor should be proportionally balanced in sentencing.
[30] The Regional Magistrate then focused on whether this case had substantial
and compelling circumstances for deviation from the minimum sentence. He
considered the Appellant’s legal representative's emphasis on the Appellant’s
personal circumstances , but fou nd nothing that stood out as substantial or
compelling, singularly or cumulatively . The Appellant’s advanced age and seemingly
poor health did not detract from the abhorrence of the crime. The Appellant
maintained his innocence and did not display remorse or regret for what he did. He
put the minor through the secondary trauma of reliving her experiences with him in a
deserted field. He reasoned that f or the rape of a young, defenceless, and vulnerable
child, the minimum sentence is not disproportionate to the crime. The Regional
Magistrate pondered the impact of the scars on the minor and stated that t he sexual
abuse of the minor will scar her for the rest of her life.
[31] The Regional Magistrate cited suff icient authority to inform his conclusions.
There were no cogent reasons to deviate from the prescribed sentence. The
Magistrate considered the Appellant’s period of incarceration and , as a measure of
mercy, antedated the sentence of life imprisonment to 23 December 2022. Sentence
was imposed on 19 March 2024. The Magistrate ordered that the Appellant’s
particulars be included in the Na tional Register for sex offenders, that he was found
to be unsuitable to wo rk with children, and that he was declared unfit to possess a
firearm.
[32] Appellant’s Counsel tried valiantly to persuade th is Court to find that the
Regional Magistrate misdirected on the grounds alluded to in sentencing. Given the
exemplary judgment on conviction and sentence handed down by the Court a quo,
this was a mammoth task . To her credit, Appellant’s Counsel acknowledged the
futility of her endeavour even though she would no t concede that there was no
discernible fault with the lower Court’s judgment on conviction and sentence , as her
instructions forbade her from doing so. A ppellant’s Counsel argued that the
imposition of a sentence of life imprisonment meant that the Appellant would only be
eligible for parole after 25 years, at the age of 90. Even if he is considered for parole
after 15 years, he will be 80. Given his health, this could equate to the Appellant
never leaving prison .
[33] Appellant’s Counsel submitted that this Court should reduce the sentence
from life imprisonment to a sentence between 15 and 18 years. The State reminded
us that the Appellant did not provide medical evidence to prove his chronic medical
ailments . The Stat e resisted any change in the sentence imposed by the Regional
Court. The State argued that the appeal stood to be dismissed.
[34] Sentencing is a balancing act between the aggravating factors placed on one
end of a scale and the mitigating factors on the other. The more the scale tips
towards the aggravating factors, the harsher the sentence should be, or the lesser
should be the inc lination to deviate from a prescribed minimum sentence. The more
the scale tips toward the mitigating factors, the milder a sentence should be, or the
greater the inclination to interfere and deviate from a prescribed minimum sentence.
Where the analysis l eaves the scale equipoised, the Court should exercise its
discretion and impose a sentence that considers the quartet of factors of the crime,
the criminal, the community, and the consequences for the victim with the requisite
mercy the peculiar circumstan ces require . Where a minimum sentence applies, it
should be imposed. In the latter context , an Appeal Court should refrain from
interfering with the sentence imposed.
[35] This Court has given the requisite attention to the sentence imposed by the
Regional Ma gistrate. He approached sentencing holistically , having had recourse to
the crime, the community's interests and the Appellant's circumstances . The
principles of prevention, retribution, reformation and deterrence are evident in his
analysis. He applied his mind to whether the prescribed minimum sentence was
proportionate to the crime committed and added a tinge of mercy in the
circumstances.8 All relevant factors were evaluated, and established legal principles
and consistency with precedent were followed . The Regional Magistrate provided
clear justification for imposing the prescribed minimum sentence. Life imprisonment
should not evoke a sense of shock in this case. This Court finds no irregularity or
misdirection in the sentence imposed by the Court a quo .
MISCELLANEOUS MATTERS
[36] This appeal on sentence lends itself to a further consideration of t hree issues
that have surfaced in this case. They are the victim impact statement , the effect that
a sexual crime has on a minor , and awareness of the signs of grooming behaviour.
Victims are persons who individually or collectively have suffered harm or substantial
impairment of their fundamental rights through acts or omissions that violate criminal
laws. The term includes direct and indirect victims , the person directly affected by the
commission of the crime , and indirect victims , like the closest family .
[37] The minor ’s victim impact statement was made when she was eight and in
grade 2 . The Court described it as a haunting image and pondered about the long-
term effects that the rape would have on the minor . Art, in its quiet simplicity ,
screams truths louder than words do . A defenceless child trapped in an unbroken
ring, her face etched in sad sorrow , used and discarded like some inanimate thing,
his, a shameless smirk, a serpent’s sting . A child lost beneath a smiling sun , trust
betrayed, and innocence undone. The unfathomable emotional and psychological
sequelae and the developmental and learning impediments cannot be
underestimated . The consequences for a rape victim are severe and permanent.9 A
child victim has to endure the stigma and the trauma over a longer period.
8 S v Rabie 1975 (4) SA 855 (A
9 S v Matyityi (695/09) [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) ; [2010] 2 All SA 424 (SCA) (30
September 2010) , Stephen Bryan de Beer v The State (121/04) (Delivered on 12 November 2004)
(Unreported judgment of the Supreme Court of Appeal) para 18
[38] In contrast, the Court a quo devoted a lengthy analysis to the crime, the
Appellant’s personal circumstances and what the community expects. The Court
followed the triad of factors established in S v Zinn in imposing a sentence that it
thought suitable in the circumstances. The Zinn triad came into existence with just
two sentences in the seminal case:
‘It then becomes the task of this Court to impose the sentence which it thinks
suitable in the circumstances . What has to be considered is the triad con sisting of
the crime, the offender , and the interests of society .’10
[39] Society and some of our Courts have agitated about the omission of the
consequences for the victim in the triad that devolved into the three c’s: the crime,
the criminal and the community. The constitutional imperative demands that the
impact of crime on the victim is not brushed off lightly in the sentencing regime . Is it
not time to replace the triad with a quartet of factors : the crime, the crim inal, the
community, and the consequences, the latter being the consequences for the victim,
both directly and indirectly? As an aide-memoire , the four C’s are those that a Court
must consider and apply in unison without emphasising one over the other.
[40] The Regional Magistrate remarked that the Appellant ‘lured’ the minor away
from her home ‘with the promise of a birthday cake ’. This Court interpreted that
statement and the evidence relating to the minor’s rape to suggest that the Appellant
had manipulated the minor before sexually exploiting her.
[41] Grooming in the context of child sexual molestation refers to the deceptive
process used by perpetrators to gain a child's trust , manipulate and sexual ly abuse
them whilst avoiding detection . It involves the selection of a vulnerable child, building
trust by befriending the child and their family, isolating the child by creating
opportunities for private interactions, desensitising the child by gradually introducing
physical or sexual content, and maintaining secrecy by using threats, guilt, or
manipulation to prevent disclosure. Grooming is often subtle, making it difficult to
10 S v Zinn 1969(2) SA 537 (A), at 540G
detect before abuse occurs. Understanding grooming beha viour is crucial for
prevention and intervention.11
[42] The State was not convinced that the facts of this case indicated grooming of
the child by the Appellant. Apart from raising awareness of this scourge amongst
practitioners and society, this Court can take this aspect in this appeal no further.
[43] The State asked this Court to pronounce on the parts of the record that were
missing. The Appellant had referred to parts of the record that had not been
transcribed , namely the procedure under sections 156 , 162 -164, and 170A of the
Criminal Procedure Act relating to the presence of the accused, un sworn and
unaffirmed evidence , and evidence led through an intermediary. The transcript
indicated that the competency test performed on the minor and the initial part of the
minor’s testimony had been omitted due to a mechanical break in the recording. A
record must be adequate for the proper consideration of the appeal. The defects in a
record must be determined based on the nature of the issues to be decided on
appeal.12 The Appellant volunteered that none of the sections omitted form part of
the material relevant to this appeal , and the record is sufficient to enable the Court to
find that the proceedings were just. The Court finds that the missing parts of the
record did not render it inadequate to decide this appeal.
[44] Respondent’s Counsel cited her heavy workload for failing to file the
Respondent’s heads of argument in time . Infractions of this kind have become
increasingly prevalent . Whilst the Court accepts the explanation and condones the
infringement on this occasion, it should not be construed by the National Directorate
of Public Prosecutions that this will be tolerated inconsequentially . let alone the
disrespect it shows to the Court and its rules , the Appellant and the Court are
hindered in preparing adequately and timeously for the appeal.
[45] Finally, a word needs to be said about the delays that ensued before this
case came to trial. The rape occurred on 8 March 2016. The trial in this matter
11 Australian Government: National Office for Child Safety: Grooming.
https://www.chi ldsafety.gov.au/about -child-sexual -abuse/grooming
12 S v Chabedi 2005 (1 ) SACR 415 (SCA) at paras 5-6
commenced in 2023. Seven years had elapsed before the minor gave evidence even
though the Appellant wa s arrested about two months after the rape. The minor was
expected to remember the minutiae of an incident which would find more mature
brains wanting. This undue delay is completely unsatisfactory and is deprecated .
[46] The Court has considered the Appellan t’s appeal on his conviction for the
rape of his 7-year-old step granddaughter on 8 March 2016. The Court cannot find
fault in the Regional Magistrate’s judgment on conviction. The Appellant’s appeal on
his sentence of life imprisonment must suffer the sam e fate as his appeal on
conviction . The Court is not persuaded that the grounds raised by the Appellant
warrant any interference in the sentence imposed. The appeal must therefore fail.
[47] In the circumstances, I propose the order that follows.
ORDER
1. The Respondent’s application for condonation of the late filing of its heads of
argument is granted,
2. The appeal against conviction and sentence is dismissed .
_____ _____________ _____
BHOOPCHAND AJ
I agree , and it is so ordered .
_____________________ __
ALLIE J
Judgment was handed down and delivered to the parties by e -mail on 13 May 2025
Appellant’s Counsel: S Kuun
Instructed by Legal Aid, South Africa
Respondent’s Counsel: P A Thaiteng
Instructed by the National Prosecuting Authority, Directorate of Public Prosecutions,
Cape Town