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  • S.M v S (Appeal) (A14/2025) [2025] ZAWCHC 221 …

S.M v S (Appeal) (A14/2025) [2025] ZAWCHC 221 (27 May 2025)

82 Reportability
Criminal Law
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Brief Summary

Criminal Law — Sexual Offences — Conviction and sentencing for rape and sexual assault — Appellant convicted of two counts of rape and one count of sexual assault against his 13-year-old stepdaughter — Minimum sentence of life imprisonment imposed for rape under the Criminal Law Amendment Act — Appellant's defence based on consent rejected — Complainant's consistent testimony and corroboration by her mother deemed credible — Appeal against conviction and sentence dismissed as no substantial and compelling circumstances found to deviate from minimum sentence.

Comprehensive Summary

Case Note


Case Name: In the High Court of South Africa (Western Cape Division, Cape Town) – A14/2025

Citation: High Court, Western Cape Division, Case No: A14/2025

Date: Heard on 23 May 2025; Delivered electronically on 27 May 2025


Reportability


This case is reportable due to the significant public interest arising from the grievous sexual offences committed against a minor and the involvement of a stepfather. The judgment addresses both statutory and evidentiary aspects of sexual offence cases and reinforces the legal framework that protects vulnerable individuals. Its significance spans both criminal procedure and child protection principles, highlighting the judiciary’s stance on consent, credibility of testimonies, and the strict application of mandatory sentencing provisions.


The report also underscores the critical importance of ensuring that procedural safeguards and legal principles are upheld in cases involving sexual offences with minors. The decision illustrates the court’s careful examination of conflicting narratives, particularly where the accused’s version changes during testimony. This promotes clarity in legal standards related to sexual offences under South African law.


Furthermore, the case emphasizes the weight of statutory admissions against conflicting evidence, thereby strengthening the jurisprudence related to sexual abuse and the interpretation of consent, especially when the complainant is a minor. The judgment serves as an important precedent for similar cases in the future.


Cases Cited


There are no key cases explicitly referenced in the judgment text. The judgment primarily relies on statutory provisions and the evidentiary record presented during the trial.


Legislation Cited


The judgment cites several key pieces of legislation which include:

Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007,

Criminal Law Amendment Act No 105 of 1997,

Correctional Services Act No 111 of 1998, and

Criminal Procedure Act No 51 of 1977.


Rules of Court Cited


No specific rules of court are cited in the judgment text beyond referencing statutory provisions under the relevant Criminal Procedure Act and related amendments.


HEADNOTE


Summary


The judgment involves an appeal by an appellant convicted on two counts of rape and one count of sexual assault against a 13-year-old complainant, who later gave birth to his child at age 14. The appellant’s formal admissions, recorded under section 220 of the Criminal Procedure Act, are central to the case despite his attempts to later offer an alternative narrative. His defence of consent was ultimately undermined by the complainant’s consistent testimony and corroborative evidence provided by her mother and the examining medical professional.


In the judgment, the court scrutinized the chronology and consistency of events. It examined whether the offences occurred on separate occasions or as a single continuous event, and whether the complainant had indeed consented – an issue rendered legally irrelevant by her minor status. The evidence, including documentary medical reports and the complainant’s detailed account, played a pivotal role in the court’s analysis.


The court held that the appellant’s inconsistent and self-serving explanations, in light of his statutory admissions and the independent testimonies, permanently discredited his defence. The conviction and sentencing were thus upheld, reinforcing the strict legal protections afforded to minors and the imperative of an unequivocal judicial response to sexual offences.


Key Issues


One key issue was determining whether the alleged incidents occurred on three separate occasions or as a single continuous event. The court needed to resolve the discrepancy between the appellant’s varying accounts and the consistent version provided by the complainant.


Another significant issue involved the legitimacy of the appellant’s claim of consent. Given that the complainant was a minor, the legal principle that a child under the age of 12 (and by extension, a child far younger than 14 in the context of such offences) cannot consent to sexual activity was critically addressed.


A further issue was the broad implication of statutory admissions made by the appellant at the outset of the trial versus his later attempts to alter his narrative. The credibility of his evidence was examined in the context of the overwhelming contradicting testimonies and the statutory framework governing sexual offences against minors.


Held


The court upheld the appellant’s conviction on the counts of rape and sexual assault. It confirmed that the evidence provided by the complainant, her mother, and the medical examinations was compelling and contradicted the appellant’s inconsistent defenses. The appellant’s attempt to claim consent was rejected under the statutory regime that deems minors incapable of consenting to sexual activities. Consequently, the life sentences for rape and the additional concurrent sentence for sexual assault were maintained.


THE FACTS


The case concerns the appellant, who was convicted of two counts of rape and one count of sexual assault against his 13-year-old stepdaughter. The complainant, whose birthdate is recorded as 3 March 2008, was repeatedly abused by the appellant during a period spanning from August to December 2021. The abuse culminated in a pregnancy, and the child was born on 6 May 2022 when the complainant was just 14 years old.


During the investigation, it was revealed that the complainant had not reported the incidents until her mother observed physical evidence that prompted immediate disclosure. The subsequent police report, supported by medical findings consistent with sexual assault, cemented the chain of evidence against the appellant. The appellant’s initial statutory admissions during the trial further complicated his subsequent inconsistent testimony.


The courtroom proceedings focused extensively on contrasting narratives. While the complainant provided a consistent account of multiple incidences of assault, the appellant’s version varied regarding both the timing of the events and the alleged element of consent. The trial record presented a detailed timeline and set of circumstances that critically undermined the appellant’s credibility.


THE ISSUES


The primary legal question was whether the appellant’s actions constituted separate criminal incidents occurring on different occasions or a single continuous event. This distinction was vital in establishing the nature and extent of the offences committed. The court was tasked with reconciling the conflicting testimonies regarding the chronology of the abuse.


Another critical issue was the validity of the appellant’s defence of consent, especially given that the complainant’s age legally precluded her ability to consent to any sexual activities. The law requires stringent scrutiny in cases involving sexual offences against minors, making any suggestion of consent legally irrelevant and invalid.


The court was also required to assess the weight of the appellant’s formal statutory admissions in contrast with his later altered narrative. This discrepancy raised questions about the reliability of his evidence and the overall credibility of his defense, thereby impacting the final determination of his guilt.


ANALYSIS


The court’s reasoning was centered on the reliability of the testimonies and the statutory framework governing sexual offences against minors. It placed significant weight on the complainant’s consistent and corroborated account of the incidents. The admissions by the appellant at the outset of the trial, under section 220 of the Criminal Procedure Act, were pivotal, as they directly contradicted his later attempts to claim that all events occurred on a single day.


In analyzing the evidence, the court noted the lack of any credible evidence supporting the appellant’s claim of consensual sexual activity. The statutory incapacity of a minor to consent was emphasized, rendering any argument based on the notion of consent immaterial. The court also elucidated that any discrepancies in the appellant’s account served only to highlight the implausibility of his defence.


Furthermore, the court carefully considered the timing and context of the reported incidents. The immediate reporting by the complainant’s mother, the medical evidence, and the clear contradictions in the appellant’s version converged to form an irrefutable basis for upholding the conviction. The analysis was systematic in underlining that the legal protections for minors warranted a strict interpretative approach in favor of the complainant’s account.


REMEDY


The remedy provided by the court was the upholding of the appellant’s conviction for both rape and sexual assault. The sentences imposed by the trial court were confirmed, including life imprisonment on each count of rape and a concurrent sentence of five years for the sexual assault charge under the applicable provisions of the Correctional Services Act. The judgment left no room for ambiguity regarding the application of mandatory minimum sentencing in cases of sexual offences against minors.


In addition to the sentencing, the remedy underscored the necessity of maintaining legal consistency when dealing with statutory admissions and vulnerable complainant testimonies. By affirming the convictions, the court ensured that the protection afforded to minors under the law remained robust and uncompromised.


The court’s order reinforces the overarching principle that any departure from factual consistency, especially in cases involving statutory admissions, cannot be tolerated. The judgment thus serves both a remedial and a deterrent function in similar future cases.


LEGAL PRINCIPLES


The key legal principles established in this judgment include the strict interpretation of statutory admissions made by an accused under section 220 of the Criminal Procedure Act. The decision affirms that any subsequent inconsistent accounts by the appellant cannot mitigate the binding effect of such admissions, especially when dealing with sexual offences against minors.


Another principle is the unequivocal legal stance that a child is incapable of consenting to sexual activities. This reinforces the statutory protection provided to minors under the Criminal Law (Sexual Offences and Related Matters) Amendment Act and emphasizes that any claim of consent is legally irrelevant if the complainant is underage.


Finally, the judgment illustrates the importance of corroborative evidence in cases comprising sensitive and serious allegations. The consistent testimonies of the complainant and her mother, alongside clear medical evidence, form the bedrock for enforcing mandatory sentencing provisions. This case thus sets a precedent for maintaining rigorous evidentiary standards and ensuring that legal protections for vulnerable individuals are rigorously upheld.

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
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: A14/2025

In the matter between:

S[...] M[...] Appellant

and

THE STATE Respondent

Court: Justice J Cloete et Acting Justice De Jager
Heard: 23 May 2025
Delivered electronically : 27 May 2025


JUDGMENT


CLOETE J :

[1] The app ellant was convicted as charged in the Wynberg Regional Court on 29
April 2024 on two counts of contravening s3 of the Criminal Law ( Sexual
Offences and Related Matters ) Amendment Act 1 ( rape) and one count of
contravening s 5(1 ) of the aforementioned Act (sexual assault ). Given that the
complainant was 13 years old at the time of commission of the offences, the
counts of rape attracted the prescribed minimum sentence of life imprisonment
in terms of s 51 (1) read with Part 1 of Schedule 2 of the Criminal Law
Amendment Act 2, commonly referred to as the so -called minimum sentence
legislation .

[2] On 16 May 2024 the appellant was sentenced to life imprisonment on each
count of rape and 5 years imprisonment on the count of sexual assault. These
sentences automatically run concurrently in terms of s 39( 2)(a)(i) of the
Correctional Services Act .3 The appellant has exercised his statutory right of
appeal to this court in terms of s 309 of the Criminal Procedure Act4 in respect
of the convictions and sente nces for the rape counts. He was granted leave to
appeal the conviction and sentence in respect of the sexual assault count by
the trial court on 3 September 2024 .

[3] The following facts became common cause during the trial. The complainant’s
date of birth is 3 March 2008. The appellant is her stepfather, who at the time
of the alleged o ffences was 47 years old and had been married to the
complainant’s mother in terms of customary law since 25 December 2018. The
incidents resulting in the appellant being charged occurred sometime during
August to December 2021. The complainant fell pregnant and gave birth to the
appellant’s son on 6 May 2022 when she was just 14 years old. It is apparent
from the record that the appellant had little choice but to admit paternity given
that DNA results proved that there was a 99.9% probability that he was the
child’s biological father.


1 No 32 of 2007
2 No 105 of 1997
3 No 111 of 1998
4 No 51 of 1977
[4] The complainant did not report the incidents to anyone until on Sunday 17 April
2022 her mother noticed white pre –lactation fluid on the complainant’s black
bra she was wearing as she prepared to take a morning bath in preparation for
church. Her mother asked the complainant directly, and she disclosed the
incidents to her. The complainant’s mother , under the guise of atten ding
church since the appellant was in the house, took the complainant to the
police station where the matter was reported. The appellant was arrested the
same day. The J88, handed in by consent , reflects the complainant’s report to
Dr. Matanda of the Thut huzela Clinic at Heideveld , who conducted her
medical examination two days later on 19 April 2024 , that ‘ ..her stepfather
raped her three times last year …”. Dr. Matanda also recorded the
complainant was approxi mately 27 weeks pregnant (ie 6 to 7 months) but
recommended an ultrasound examination ; and that his clinical findings w ere
consistent with the complainant’s report (which he referred to as evidence) of
sexual assault .

[5] The appellant’s plea explanation and subsequent defence was that of consent.
Importantly, he made formal admissions in terms of s220 of the Criminal
Procedure Act at the outset of the trial. 5 These were that , as alleged in the
charge sheet : (a) on count 1, he had penetrated the complainant’s vagina with
his penis; (b) on count 2 , he had penetrated her vagina with his tongue; and (c)
on count 3, he had touched her breasts . He disputed however that the
incidents occurred on diverse occasions (as als o alleged in the charge sheet )
during the period in question . According to him, all three i ncidents occurred on
the same day, but he could not recall the date. Further details of his version
emerged during the evidenc e led by the state. These were that the
complainant seduced him by showing him photographs of naked individuals
having sexual intercourse , and that she willingly participated in the incidents .
Ultimately , therefore , the only two material issues in dispute were : (a) whether
the incidents occurred on three occasions over the period in question, or all on
the same day; and (b) whether the complainant was a willing partici pant. (In
terms of s 57 (1) of the Criminal Law (Sexual Offences and Related Matters )

5 No 51 of 1977
Amendment Act , a child under the age of 12 years is incapable of consenting
to a sexual act ).

[6] During the trial the complainant and her mother gave evidence on behalf of the
state. The appellant testified in his defence and called no other witnesses. It is
not necessary to deal in detail with the evidence given by the complainant
about precisely what occurred , given the s220 admissions. On the disputed
issues, it is clear from her evidence that she was consistent in her account of
how, on three separate occasions on a Thursday morning after her mother left
for work and only she and the appellant ( apart from her infant brother) were in
the house, the appellant instructed her to remove her clothing, lie on the bed
he shared with her mother, and committed the offences .

[7] She was also consistent in her testimony that she was scared of the appellant
because he had previously assaulted both her and her mother , and felt
threatened into submitti ng. Similarly she was unshaken in her evidence that on
each occasion she had tried to push the appellant away but h e was too strong ;
on the second occasion he warned her not to tell her mother; and on the third
occasion the appellant only desisted after her friend from next door arrived at
the front gate , the complainant shouted out the friend’s name , and the friend
opened the gate to enter the property . Finally, the complainant gave a
consistently clear and cogent explanation why she did not tell her mother
earlier, namely that she was scared of what the appellant might do to both of
them .

[8] The complainant denied having shown the appellant photographs as alleged
(she was cross -examined about mentioning videos rather than photographs
but nothing turns on this because her denial that she showed him anything
was emphatic throughout her evidence.) Questions pu t to her on behalf of the
appellant about the intimate details of each incident were irrelevant , given his
earlier formal admissions in terms of s 220.

[9] The complainant’s mother confirmed the report was made to her after she
questioned the complainant on 17 April 2022. She corroborated the
complainant’s testimony in relation to the report and what occurred thereafter
in all material respects. In particular, she confirmed her observation of the
complainant’s bra; that she took the complainant directly to the police under
the guise of going to church ; and testified that she did so because both she
and the complainant w ere scare d of the appellant , having both been assaulted
by him previously. She also repeated that the complainant feared the appellant
and she was thus not surprised that in the circumstances the complainant had
not made an earlier report to her. In any event, in terms of s 59 of the Criminal
Law ( Sexual Offences and Related Matters) Amendment Act, a court may not
draw any inference solely from the length of a delay between the alleged
commission of an offence and the reporting thereof.

[10] In his testimony the appellant gave what was clearly an embellished version of
how the complainant allegedly seduced him, including a number of salacious
details that were not put to the complainant on his behalf during her evidence.
He even went so far as to claim the compla inant had “craved“ sexual attention
from him. Contrary to his earlier version that all three incidents occurred on the
same day, he testified that they constituted one single continuous event.
Again, contrary to his earlier version that he could not recall when this
occurred, he was suddenly able to remember that it was in August 2021. He
downplayed the evidence of the complainant that he had previously assaulted
her, maintaining it was only a matter of two slaps because she asked him for
money , was insolent , and he had become “a little bit angry”. This too had not
been put to the complainant or indeed her mother, who according to the
appellant was present at the time. He admitted however that the alleged slaps
were given only a month before the com plainant , according to him, could no
longer resist his physical charm and seduced him , and that she was generally
a very obedient child . He had apparently been bemused by the sudden change
in her behaviour .

[11] The falsity of his version is also demonstrated by his belated claim that the
complainant threatened him with the words “ I will get you” if he did not
succumb to her sexual demands. The appellant repe atedly contradicted
himself on what had occurred during the comm ission of the offences ; and
during cross -examination concede d that he had not only previously slapped
the complainant but “might have kicked her“ too. He also admitted smacking
the complainant’s mother and kicking her on the same occasion when the
mother t ried to defend her. Importantly he eventually conceded that both the
complainant and her mother were already afraid of him prior to the rapes and
sexual assault.

[12] The trial court accurately summarised the evidence and the law, including that
pertaining to the evidence of a single witness. She was correct in her finding
that the complainant was a credible and reliable witness ; that the
complainant’s mother corroborat ed her version in all material respects in
relation to the prior assault, the report and what occurred thereafter, and that
the appellant adapted his version whenever the shoe started to pinch . She was
also correct in her conclusion that the state proved i ts case beyond reasonable
doubt and the appellant’s version should be rejected as not reasonably
possibly true. This dispenses with the appellant’s grounds of appeal as
contained in his notice of appeal, and the appeal against conviction fails.

[13] Turning now to sentence. The appellant was a first offender who reached the
age of 47 years without any known brushes with the law. He was in custody
from the date of his arrest (about two years). His personal circumstances are
unremarkable. This was a particular heinous series of offences, and the record
reflects the deva stating impact on the complainant and her mother, both in
their evidence and the complainant’s victim impact report. This is one of those
cases where the appellant’s personal circumstances and clean prior record
must necessarily recede into the background : S v Vil akazi6. In her carefully
reasoned judgment the trial court again referred to the applicable legal
principles and weighed all relevant facts and circumstances. She correctly
concluded that there were no substantial and compelling circumstances to
justify a deviation from the prescribed minimum sentence, or that the
imposition of life imprisonmen t would b e disproportionate to the crimes of

6 2009(1) SACR 552 at para 58
which the appellant was convicted. There is no basis for this court to interfere .
It follows that the appeal against sentence must also fail.

[14] The following order is made:

The appellant’s appeal against both conviction and sentence are
dismissed.


___________
J I CLOETE
Judge of the High Court

I agree

____________
N C DE JAGER
Acting Judge of the High Court

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