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)
Case number: A21/2025
In the matter between:
V[...] N[...] First Appellant
ANDILE NDUNGA Second Appellant
And
THE STATE
Coram : MANTAME J et PANGARKER J
Hearing date: 30 May 2025
Judgment delivered: 23 June 2025
___________________________________________________________________
ORDER
___________________________________________________________________
a. The appeal against convic tion of both appellants on Count 1 succeeds to the
following extent and the order of the Court a quo is substituted as follows:
Accused 1 : Guilty – Theft
Accused 3: Guilty – Theft
b. The second appellant’s appeal against conviction on Count 6 succeeds to the
following extent and the order of the Court a quo is substituted as follows:
Accused 3 : Guilty – Housebreaking with intent to rob and robbery
c. The first appellant’s appeal against conviction on Counts 2, 4, 5 and 8 , is
dismissed. The conv ictions of the first appellant are confirmed.
d. The second appellant’s appeal against conviction on Counts 3, 4, 5 and 8 , is
dismissed. The convictions of the second appellant are confirmed.
e. The appeal against sentence of both appellants on C ount 1 succeed s to the
extent that the sentence of 15 years’ direct imprisonment imposed by the
Court a quo in respect of each appellant is set aside and substituted with the
follow ing sentences :
Accused 1 : Theft – Six (6) years’ imprisonment
Accused 3: Theft – Six (6) years’ imprisonment
The above sentences , as substituted , are backdated to 27 June 2024 . In
terms of section 280(2) of the Criminal Procedure Act 51 of 1977 (CPA), these
sentences shall run concurrently with life imprisonment imposed on each
appellant on Count 2 ( accused 1/ first appellant) and Count 3 ( accused
3/second appellant) .
f. The second appellant’s appeal against sentence on Count 6 succeeds to the
extent that the sentence of 15 years’ direct imprisonment imposed by the
Court a quo is set aside and substituted with the following sentences :
Accused 3 : Housebreaking with intent to rob and robbery – Ten (10) years’
imprisonment.
The above sentence , as substituted , is backdated to 27 June 2024 , and shall
run concurrently with life im prisonment imposed on him on Count 3 .
g. The first appellant ’s appeal against the sentences imposed by the Court a quo
on Counts 2, 4, 5 and 8, is dismissed . The sentences are confirmed.
h. The second appellant’s appeal against the sentences imposed by the Court a
quo on Counts 3, 4, 5 and 8 , is dismissed. The sentences are confirmed.
___________________________________________________________________
JUDGMENT
______________________________________________ _____________________
PANGARKER J (MANTAME J concurring)
The charges and convictions
[1] The first appellant was accused 1 and the second appellant was accused 3 in
the Wynberg Regional Court and were charged with the following serious offences:
Both appellants
Count 1 – robbery with aggravated circumstances as intended by section 1 of the
Criminal Procedure Act 51 of 1977 (CPA) read with section 51(2) of the
Criminal Law Amendment Act 105 of 1997 (CLA A)
Count 4 – compelling or causing children to witness sexual offences as referred
to in section 21(1) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (SORMA) as amended (child
complainant I[...] C[...] )
Count 5 – same as Count 4 (child complainant E[...] C[...] )
Count 8 – housebreaking with intent to commit a crime unknown to the State
Count 9 – robbery with aggravated circumstances as intended by section 1 of the
CPA read with section 51(2) of the CLA A
First a ppellant only
Count 2 – rape as defined in section 3 and as read with various sections of the
SORMA and section 51(1) of the CLA A
Second appellant only
Count 3 - rape as defined in section 3 and as read with various sections of the
SORMA and section 51(1) of the CLA A
Count 6 – housebreaking with intent to commit a crime unknown to the State
Count 7 - robbery with aggravated circumstances as intended by section 1 o f the
CPA read with section 51(2) of the CLA A.
[2] Accused 2, Thembelani Matolengwe (Thembelan i), was the appellants’ co-
accused and convicted of certain counts on the basis of common purpose. T he first
appellant was convicted on counts 1, 2, 4, 5 and 8, a nd acquitted on count 9. T he
second appellant was convicted on counts 1, 3, 4, 5, 6 and 8 , and acquitted on
counts 7 and 9 respectively . In respect of count 8, the Court a quo found that there
was a duplication of charges with count 9 and thus convicted both appellants of the
offence of housebreaking with intent to rob and robbery with aggravated
circumstances.
[3] As for the rape charges, on counts 2 (first appellant) and 3 (second appellant) ,
each of the appellants was sentenced to life imprisonment in te rms of section 51 (1)
of the C LAA. On counts 1, 6 and 8, the Regional Court imposed the minimum
sentences of 15 years’ imprisonment, and all the sentences imposed on the other
counts were ordered to run concurrently with the life imprisonment .
[4] The appell ants exercise the ir automatic rights of appeal in respect of the life
imprisonment on the rape counts. In respect of the remaining counts and the
sentences imposed by the Regional Court in respect thereof, the appeals against
convictions and sentence are w ith leave of the Court a quo.
Trial in the Regional Court
[5] The appellants were legally represented in the Regional Court and the
magistrate explained the application of the minimum sentence legislation to the m as
well as the provisions of section 50(1) of the SORMA, section 120(4) of the
Children's Act 8 of 2005 and the applicable competen t verdicts . The appellants
pleaded not guilty to all the charges and offered no plea explanations . The State
called five witnesses, and the appellants testified in their own defence. As the
appellants appeal all their convictions, the evidence in the trial court is summarised
below.
B[...] C[...]
[6] Ms C[...] is the complainant in respect of counts 1 to 3. During 2021 , she was
living with her husband and two minor children, aged 3 and 6 respectively in a one -
roomed shack in the informal settlement, Marikana . On 25 May 2021, at
approximately 20h00, she was at home with her children while her husband was
working nightshif t duty. She heard a knock at the door and heard a familiar voice of
accused 2, T hembelan i, call out for her . She enquired as to what he wanted, but he
did not respond.
[7] Another male voice, unknown to her , stated the following:
“Open the door. This is a shack. If I want to, I can open it .”1
[8] Ms C[...] went to the door and opened it . She testified that the first appellant,
known as Vovo, and the second appellant, known to her as Blacks, along with an
unknown short ma le, entered the shac k. They re moved two cell phones and
sneakers from the cupboard, and food from the refrigerator . At the time the men
entered the complainant’s shack, the children were on the bed . The complainant
explained that she did n ot scream because T hembelan i, who was outside the shack ,
was with the appellants and she was in shock .
[9] After they removed the items, the men departed from Ms C[...] ’s premises and
proceeded to her next-door neighbour , Ms Yoliswa Payi. Ms C[...] heard the m kick at
the door to Ms Payi’s shack and she waited until they left before she decided to
1 Record, p58
leave her shack . Ms C[...] and Ms Payi later met up and discussed th e incidents but
due to the lateness of the hour, they did not report the incidents to the police . Ms
C[...] returned to her shack and the c hildren and fell asleep. I refer to these events,
which relate to count 1, as the first incident .
[10] Shortly after midnight , Ms C[...] heard a knock at her shack door again. She
did not open and asked the person(s) at the door , what they wanted . An unknown
male voice demanded that she must open the door, or they w ould kill her if she
refused . At that, she again asked what they wanted. The response from the male (s)
at her door was to ask her whether they should open the door themselves or was
she going to open it? She then replied that she would open the door . At the time, she
did not have her cell phone.
[11] Ms C[...] switched on the light in the shack and opened the door and with that,
the appellants entered. The first appellant instructed her to sw itch off the light and
she refused , and the second appellant then switched off the light. She testified that
her children were on her bed and crying .
[12] The second appellant pushed Ms C[...] toward s the bed, and she fell
backward onto the bed . He then lifted her dress, moved her panty aside, took out his
penis which he inserted in her and raped her vaginally. During the rape, the first
appellant stood at the door and used something to provide light in the shack.
[13] After the second appellant was done, he moved to the door and the first
appellant moved to ward s the complainant and took out his penis , inserted it into her
vagina and raped her on the bed . The rape occurred in the presence of her children.
Thereafter, the second appellant put water in a large tub and the first appellant
ordered Ms C[...] to wash herself and she complied . She testified that the first
appellant threatened her that should she inform anyone of the rapes , they would kill
her and her family. This is refer red to as the second incident.
[14] The appellants then left the shack and Ms C[...] switched on the light. They
had left the door open, and she went to her neighbour Portia , whereafter Ms Payi
arrived. Ms C[...] , who was crying and traumatised at the time, reported the rapes to
her neighbours and c alled her husband from Portia’s phone . She testified that she
reported the rapes to h er husband and identified the perpetrators to him . One of her
neighbours spoke to her husband, who arrived with his manager, and they
transported her to the police station where she made a statement. She also
underwent a medical examination which included an HIV test later on after the rape
incident .
[15] Ms C[...] explained that she felt scared at the time of the incidents and even
during the trial. She was offered c ounse lling but was not ready at th at stage to
receive help but indicated during her testimony that she would like to receive
counselling. Her children had also not received counselling, and she did not know
how their witnessing of the rapes had affected them. S he explained that testifying at
the trial, took her back to the time and occurrence of the incident s.
[16] Ms C[...] confirmed that the items removed from her shack were never
recovered and that she had not given any one permission to take them. Insofar as
how s he knew the appellants, she stated that they lived in the area for a year prior to
the incidents occurring and she saw them in the community .
[17] She had never spoken to the appellants prior to the incidents and explained
that she had heard them being called Vovo and Blacks by community members.
Vovo (first appellant) lived opposite her and Blacks (second appellant) lived further
up the road. It was put to her that the appellants deny ever being on the scene at her
shack, deny the rapes and had no knowledge of the two incidents.
[18] The complainant was steadfast in her version of events which occurred at
20h00 in her shack and that the appellants returned later to rape her. Insofar as the
lighting in the room during the second incident, she testified that approximately two
minutes had passed from the time she switched on the l ight t o the time she was
ordered to switch off the light. Furthermore, the streetlight illuminated the shack
during both incidents and the appellants had also not changed their clothes from
entering the shack duri ng the first incident to the later commission of the rapes , nor
had they covered their faces or identities.
Yoliswa Payi
[19] Ms Payi is the second complainant and c ounts 6 to 9 relate to her. She
confirmed living in Marikana and that her shack was close t o Ms C[...] ’s. The shacks
were so close that you could easily hear sounds and movement from a next door
neighbour’s shack.
[20] She did not recall the date nor month, but explained that one evening in 2021,
at about 20h00, she heard knocking on Ms C[...] ’s door and male persons ask ing for
a phone and other items; the men then left Ms C[...] ’s house and came to her shack.
In relation to Ms Payi, this is the first incident.
[21] Thembelani and the second appellant whom she refer red to as Black Power,
shoved or ki ck the door to her shack , causing it to open and they thus entered. The
second appellant asked for her Samsung phone , which she gave to him, and they
then left her shack . She explain ed that she was in shock. Her s hack was illuminated
by the inside light an d the very bright streetlight . She testified that the second
appellant lived in the area.
[22] Ms Payi described the second incident as follows: early the next morning, her
door was shoved open again, and the two appellants entered her shack. At the
times, s he was with her husband. The appellants demanded cell phones and an
exchange with her husband ensued , as he refused to hand over t he cell phone . The
first appellant threatened to shoot her and her husband if they did not give him
money .
[23] The first appellant became increasingly angry and continued with the threats.
At that stage, the first appellant had taken the cell phone , food, coins and a jacket ,
and the second appellant also took a jacket and food. Her husband’s phone was
valued at R2500 and one of the jackets also belonged to h im. The second appellant
convinced the first that they should leave because Ms Payi did not have mone y, and
they then left Ms Payi’s shack .
[24] Ms Payi testified that she then hear d the appellants knocking on Ms C[...] ’s
door, demanding that she opens and threatening to shoot if she refused to comply .
Ms C[...] opened the door , and at that time, the first appellant called out to her (Ms
Payi) demanding that she goes to sleep2. She testified that all went quiet until she
heard sounds emanating from Ms C[...] ’s shack which sounded like someone having
sexual intercourse . Not long thereafter she heard Ms C[...] knocking on a neighbour’s
door requesting them to open. Ms Payi left her shack a nd went to the neighbour,
where she found a distraught Ms C[...] , who reported to them that the appellants had
raped her. She confirm ed that Ms C[...] called her husband to report the rapes, and
he arrived to take her to the police station.
[25] She returned to he r shack and later T hembelan i returned with her cell phone
regretful and shocked when informed that his co -accused, the appellants, returned to
Ms C[...] and raped her. Ms Payi concluded her testimony by stating that the
incidents made her fearful of men, she became distant with her husband, and they
relocated subsequently. She was open to receiving counselling or therapy.
[26] The cross -examination of Ms Payi was brief and ineffectual. A s with Ms
C[...] ’s cross examination, a bare denial that the appellant s were at her shack was
put to Ms Payi , but she was steadfast in her version of the events, that the appellants
entered her shack on two occasions: in the first incident, T hembelan i and the second
appellant were involved, and in the second incident, both appellants were involved.
[27] Ms Payi explained that she had asked Ms C[...] about the sounds she had
heard coming from the latter’s shack and was informed by Ms C[...] that the sounds
stemmed from her while she was b eing raped. Ms Payi was firm that the second
appellant was known to her and in the community as Black Power. She had
identified him from a photo identification album presented to her by the police.
P[...] N[...]
2 Ms Payi testified that after the appellants left her shack and went to Ms C[...] , she went to her door to
check if it could still lock and then.
[28] Mr N[...] was married to Ms C[...] at the time of the incidents which are
described above. He confirmed that Ms C[...] called him while he was at work and
reported to him that T hembelan i had knocked on her door, that the appellants had
entered their shack and t aken items from them.
[29] Ms C[...] reported to him that the appellants raped her and instructed her to
bath. He borrowed a vehicle, came home and took her to the police station. Mr N[...]
confirmed that the appellants did not live far from their home, that Vovo and V[...],
the first appellant, was the same person and that the shack was well -lit.
Hubert Noble
[30] Mr Noble was the investigating officer in the Philippi East matter and testified
that the first appellant and T hembelan i were arrested prior to the third appellant ’s
arrest .
Dr Mati Laurie Matanda
[31] The State called Dr Matanda, a medical doctor of 20 years’ experience at the
time of her testimony, employed at Thuthuzela, Heideveld. Her duties included
medical examinations of victims of sexual abuse and the collection of DNA evidence.
[32] She was not the medical practitioner who conducted the examination of Ms
C[...] , nor the author of the J883. The medical examination was conducted by D r
Ahmed Haffejee who was on extended sick leave. Dr Matanda had familiarised
herself with the content of the J88 completed by her colleague and was called to
testify about the information recorded in the report and answer any questions which
required clari ty or an explanation.
[33] According to the observations recorded in the J88, t he gynaecological
examination performed on Ms C[...] indicated a 3mm fresh tear on the fossa
navicularis , part of the vestibule in the vagina . Dr Hafejee found the hymen
3 Exhibit C
configuration to be carunculated, which according to him, meant that it had multiple
clefts and bumps4. Dr Hafejee also noted a whitish discharge in the complainant’s
cervix and vagina.
[34] Dr Matanda clarified that usually “carunculated” refers to a remnant of the
hymen left behind or broken. In her view, she c ould not speak of “clefts and bumps”
on the hymen when the hymen was broken or only remnants were left behind. She
explained that the clefts and bumps referred to by her colleague were the pieces or
remnants of the hymen which were visible at the time of Ms C[...] ’s medical
examination.
[35] Dr Hafejee’s conclusion of the gynaeco logical examination was that the
findings were compatible with an alleged sexual assault or forc ed penetration of the
vagina by a penis o r object. Dr Matanda testified that a forceful penetration could be
one of the causes of a fresh tear, when the patient/victim was resisting.
[36] In cross -examination, the appellants’ legal representative queried whet her Dr
Hafejee had contradi cted himself with reference to his observation that the hymen
was carunculated and that there were clefts and bumps. The witness explained that
with a carunculated hymen, the hymen membrane is destroyed and what is left
behind ar e “pieces here and there ,” which appear as small bumps as Dr Hafejee had
recorded5. On the Court’s questions , the witness expressed that the multiple clefts
and bumps were a pre -existing condition and that it was likely that the hymen was
destroyed during childbirth6.
[37] The forensic biology report7 indicated that not enough male DNA was
obtained from DNA swabs taken from Ms C[...] .
The appellants ’ versions
4 Exhibit C, point 11.
5 Transcript , p200
6 Transcript, p202
7 Exhibit D
[38] The first appellant denied any knowledge of the incidents alleged by the State
and as testified by the two complainants. He could not recall his whereabouts on the
evening and early morning when the robberies, house -breaking and rapes occurred.
He was arre sted at a neighbour’s house. Under cross -examination, the first appellant
admitted that he is referred to as Vovo. He kn ew Thembelani but they were not
friends and d enied knowing the second appellant at all.
[39] The second appellant denied that he was known as Blacks or Black Power.
He stated that his nickname was Adja which was a shortened version of Andile . He
confirmed that he lived in the area. He testified that he would see the first appellant
occasionally and he denied all the allegations related to the offences and testified
that the complainant s were unknown to him.
Judgment s on convictions and sentence
[40] In her judgment on conviction, the Regional Magistrate found that the
identities of the appellants were established and that the complainants cor roborated
each other in this respect. The further main findings were that: the complainants
corroborated each other with regard to the home invasion and robbery; the medical
evidence support ed Ms C[...] ’s version of forced vaginal penetration; in respect of Ms
Payi, on both occasions, the appellants’ i ntention s were t o break into her house and
to rob her with aggravating circumstances; and accused 2 acted in common
purpose with the appellants when he threatened Ms C[...] to open the shack door .
The Regional Magistrate found a duplication of charges in respect of the
housebreaking and aggravated robbery charges8.
[41] The further findings were that the threats uttered and the manner in which the
appellants entered the shack caused Ms C[...] to submit to the request by the men as
she feared being harmed by them . Furthermore, it was found that both appellants
had raped Ms C[...] in the presence of both of her children, allowing or ca using them
to witness such sexual offences .
8 Transcript, p353
[42] In respect of sentencing, the Regional Magistrate found that the re existed no
substantial and compelling factors and that life imprisonment was justified for each
appellant in respect of the rapes.
Grounds of appeal
[43] In respect of conviction , the ground s of appeal are that the Court a quo erred
in finding that the State had proved the appellants’ guilt beyond reasonable doubt ;
that the witnesses were honest and reliable and that the only reasonable inference
from the facts was that the appellants c ommitted the offences.
[44] In the appellants’ written submissions, for the first time, they raise the issue of
duplication of charges in respect of counts 4 and 5 and counts 6 and 8. The
submission is that these counts arise out of the same incidents .
[45] With regard to the appeal against sentence, the appellants’ grounds of appeal
are that the interests of the community and seriousness of the offences were over -
emphasised a t the expense of their personal circumstances , and that the element of
mercy was not considered during sentencing. The further ground is that life
imprisonment would hinder rehabilitation and that the sentences imposed are
startingly inappropriate and induce d a sense of shock.
Issues in the appeal
[46] Having considered the record of proceedings, the findings of the Court a
quo, the grounds of appeal and the parties’ submissions, the issues in the appeal are
as follows:
[46.1] Whether the State proved robbery with aggravated circumstances on
count 1;
[46.2] Whether the Regional Court’s finding of housebreaking with intent to
rob and robbery with aggravated circumstances on count 6 was
correct;
[46.3] The rape convictions on c ounts 2 and 3;
[46.4] Whether counts 4 and 5 should have been one charge and whether
the elements of the offences were satisfied;
[46.5] In respect of the appeals against sentence, whether the Regional
Court erred in not finding substantial and compelling factors to deviate
from the prescribed minimum sentences, and the remaining grounds
of appeal.
Interference on appeal
[47] In S v Monyane and Others [2006] ZASCA 113 at paragraph [15], the
Supreme Court of Appeal stated that: “[15] This court's powers to interfere on
appeal with the findings of fact of a trial court are limited. It has not been suggested
that the trial court misdirected itself in any respect. In the absence of demonstrable
and material misdirection by t he trial court, its findings of fact are presumed to be
correct and will only be disregarded if the recorded evidence shows them to be
clearly wrong (S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e -f). This, in
my view, is certainly not a case in whi ch a thorough reading of the record leaves me
in any doubt as to the correctness of the trial court's factual findings. Bearing in mind
the advantage that a trial court has of seeing, hearing and appraising a witness, it is
only in exceptional cases that this court will be entitled to interfere with a trial court's
evaluation of oral testimony (S v Francis 1991 (1) SACR 198 (A) at 204e). “
Count 1: Robbery with aggravating circumstances
[48] During the appeal, I enquired from both counsel whether the State had
succeeded in proving robbery with aggravating circumstances in respect of the first
incident at Ms C[...] ’s shack at 20h00 and whether the Regional Magistrate was
correct when she convict ed the appellants of robbery with aggravating
circumstances, as charged.
[49] The Regional Magistrate found that one of the men, after accused 2 had
called out to the complainant while at the door, said that she must open the door,
that it is a shack and if he wanted to, he could open the door. She further found that
the threat uttered from outside the door and the manner in which the appellants
entered, caused Ms C[...] to submit to the request out of fear of being harmed by
them and that they ransacked her shac k. It must be remembered that Ms C[...]
opened the door of her shack after the words were uttered from outside and the
appellants and an unknown man entered and removed her property .
[50] Both counsel submitted in response t hat the facts found to be proved did not
support a finding that the State proved robbery with aggravating circumstances .
Instead, c ounsel for the repondent was of the view that the offence committed by the
appellants was robbery and that the State had not proved any agg ravating
circumstance within the definition of section 1 (1) of the C riminal Procedure Act
(CPA). The discussion regarding robbery and its elements which follows below, also
applies to count 6 , which I consider hereafter.
[51] Snyman identifies the elements of robbery as follows: theft of property “by
unlawfully and intentionally using violence to take the property from somebody else,
or threats of violence to induce the possessor of the property to submit to the taking
of the property”9. There must be a causal link between the violence and the taking of
the property , in other words, the theft of the property . The theft element is not
problematic in respect of count 1.
[52] Turning to the violence element in the crime of robbery, it is so that the crime
may be committed or completed if there is use or application of force directed at the
complainant , or threats of violence directed at the complainant. In Moloto v S10,
Rumpff JA discussed the elements of robbery with specific reference to threats of
violence. The Appellate Division in Moloto held that there must be the intention to
render the victim defenceless, albeit temporarily defenceless, by eliminating the
complainant’s resistance so that she submits to the robber so as not to defend her
propert y or she acquiesces in the fact that the robber steals her property11. In such
scenario the threat of violence must lead to the complainant’s acquiescence or
submission to the theft of her property.
9 Snyman’s Criminal Law, Seventh Edition, updated by SV Hoctor, p448.
10 1982 (1) SA 844A at 850B -C
11 Supra, 850B -C
[53] In respect of the threat of violence implicit in the crime of robbery, the
following further factors should be consider ed: (a) the threat should be of such a
nature that it would lead to conviction of the crime of assault; (b) whether the
complainant’s will is overcome or she acquiesces due to the threat of violence must
be determined subjectively, and not according to the reasonable person test12, and
(c) the threat of violence may be expressed or implied.
[54] The subjective test referred to requires a determination of whether, in the
complainant’s mind, she f elt threatened in that she believed that the threats would be
carried out by the robber (s)13. Applying th e above elements and test to the facts
related to the first i ncident at Ms C[...] ’s shack , I accept that by stating to her from
outside the shack that she must open the door and that if he (the speaker) wants to,
he can open the door , a verbal threat was conveyed to her.
[55] The evidence which the Regional Magistrate accepted was that after the
utterance, Ms C[...] opened the door of her shack, the men entered, went to the
cupboard and bed, removed certain items, and then left. Neither of the appellants
(nor the unknown male) verbally or by their conduct prior to or dur ing the action ,
threatened Ms C[...] with grievous bodily harm from the moment of entry into the
shack to the time of the ir exit.
[56] The question arises whether, as the Regional Court found, the verbal threat to
open the door caused Ms C[...] to submit to the taking of her items out of fear of
being harmed? In order to answer the question, I have regard to Ms C[...] ’s testimony
that when she went to open the door , the appellants and the unknown male simply
entered, said nothing to her, took her property and left the shack . Significantly, she
also explained that she was in shock but did not scream because T hembelani, whom
she knew was present outside the door, and because the men did not approach her.
12 LAWSA, Second Edition , Volume 6: Criminal Law, Common Law Crimes: Crimes against property,
par 297 . See also Snyman supra, p449.
13 See R v Sitole 1957 (4) SA 691 (N) 692 -693, S v Pachai 1962 (4) SA 246 (T) 249
[57] This testimony informs my view that the threat to open the door, which was
made before the appellants and unknown male entered and then proceeded to
divest Ms C[...] of her property, cannot be equated with a threat of physical harm or
violence to hand over h er property or to acquiesce in its removal or taking14. Ms C[...]
complied in opening the door. At that stage, the threat to op en the door (should Ms
C[...] not comply with the instruction or demand) was, in my view, at best a threat to
damage Ms C[...] ’s door/ property and not a threat of physical violence or physical
harm directed at her.
[58] To add, i n order for such verbal threat to have been elevated to a threat of
physical violence directed at her, someth ing more was expected or required . For
example, had Ms C[...] perhaps refused to open the door after the threat was issued ,
the situation would or could have escalated to a threat of physical violence and/or
the door could have been forced or kicked open , or a further verbal threat of physical
violence may have followed . None of these actions occurred during the first incident.
[59] Having regard to the elements of robbery and the factors to be considered
when determining whether a threat of violence exists , the verbal threat in this
scenario must have been one of immediate violence and directed at Ms C[...] .
However, as can be seen from the facts presented by the State and accepted by the
Court a quo , they do not support a finding of an immediate threat of violence directed
at the complainant15.
[60] Insofar as the Regional Magistrate’s finding that the verbal threat to open the
door and the manner of entry cause d Ms C[...] to submit to the request out of fear of
being harmed , I must emphasise that the acquiescence to the removal of her
property must be as a r esult of the threat of physical violence or harm directed at
her16. On the facts related to count 1, Ms C[...] opened the door, did not scream nor
do anything as accused 2 whom she was familiar with was outside the door ; she was
not approached, nor physically threatened and the men proceeded directly to
remove items from her house and then leave .
14 Snyman’s Criminal Law, Seventh Edition, updated by SV Hoctor, p449
15 Snyman supra, p449
16 Ex parte Minister of Justice; in re R v Gesa ; R v de Jongh 1959 (1) SA 234 (A) 24
[61] Furthermore, there was also not an implied threat of physical violence and /or
grievous bodily harm directed at Ms C[...] . To elaborate, there was no verbal or
physical interaction in the shack or as the appellants left the shack after taking the
items, to cause me to conclude that a threat of grievous bodily harm was issued or
directed at Ms C[...] at that stage. In view of the above findings, I do not agree that
the State proved that the threat issued to open the door amounted to a threat of
violence, directly or implied ly, and that such threat plus the taking of the it ems
constituted the crime of robbery.
[62] Accordingly, the Regional Magistrate’s finding that Ms C[...] opened the door
because of a fear of being harmed and acquiesced, was incorrect and so too her
finding that the State had proved aggravating circumstances in that a threat to inflict
grievous bodily harm was made towards her. In view of my finding that the State did
not prove robbery, there is no need to discuss the aggravating circumsta nces as
there can be no crime of robbery with aggravating circumstances if robbery was not
proved .
[63] Having regard to the facts related to the first incident, I am satisfied that the
State indeed proved the crime of theft of the items listed in Count 1, and accordingly,
succeeded in proving that the appellants committed the offence of theft, which is a
competent verdict on a charge of robbery. Accordingly , interference in the Court a
quo’s finding on Count 1 is warranted, w ith the result that the appeal against
the convictions on Count 1 succeeds to an extent that the conviction on
robbery with aggravated circumstances will be set aside and be replaced with
a conviction of theft in respect of both appellants.
[64] As a m atter of completeness, I point out that the aggravating circumstance
described in the charge sheet on Count 1 was that the appellants threatened to kill
the complainant. While it is academic in view of the above finding of theft , the
Regional Magistrate convicted the appellants on Count 1 as charged17, which was
also incorrect as there was simply no evidence of a threat to kill Ms C[...] .
17 Transcript, p356 -357
Count 6 and Count 8
[65] Count 6 relates to the second appellant only and the first incident at Ms Payi’s
shack . The Regional Magistrate found that the housebreaking was committed with
the intention to rob and convicted the second appellant and accused 2 of
housebreaking with intent to rob and robbery with aggravated circumstances .
[66] In the appeal, the appellant sought to argue that there was a duplication of
charges in respect of Counts 6 and 8 as they arose out of the same incident. This is
simply incorrect. The action in Count 6, which occurred at 20h00 at Ms Payi’s shack
was comple ted, and the second appellant and accused 2 Themb elani, left the shack.
[67] Some four hours later, both appellants returned to her shack , and committed
a different action, to which Count 8 refers. Thus, it cannot successfully be argued
that the two actions arose from one incident or that there was a duplication of
charges . They were independe nt and unrelated.
Count 6: Housebreaking with intent to commit a crime unknown to the State
[68] The evidence in respect of this incident established the crime of
housebreaking in that the State proved that the second appellant and Themb elani
shoved or kicked the door to the shack, caused the door to open, hence allowing
them access to the shack. Thus, the trial Court’s finding on housebreaking was
correct. The Regi onal Magistrate found that the State had proved the crime of
robbery with aggravating circumstances.
[69] The evidence presented by the State was that the second appellant and
Thembelan i entered Ms Payi’s shack. They asked for her Samsung cell phone and
she, startled and shocked, handed her phone to them. Her version was that the
second appellant took the phone from her18. The men then left the shack with the
phone in their possession. The State did not call Ms Payi’s husband as a witness,
18 Ms Payi’s version indicates that she handed over the phone, and not, for example, that the phone
was grabbed with force from her hand. She makes no reference to any force used.
and while there was no reason to doubt her credibility and version of the incident,
there is no evidence that the second appellant and Themb elani adopted a
threatening demeanour, that they verbally or physically threatened her while in the
shack or threatened to commit violen ce toward her if she did not hand over the cell
phone. The picture painted during her testimony is that there was no force used to
take the phone.
[70] Similarly, to Count 1, I am of the view that questions arise as to whether all
the elements of robbery were present in this incident. The above discussion of the
definition and elements of robbery above when considering Count 1, refers.
[71] It is important to note that in view of the facts and execution of the offence in
this first incident at Ms P ayi’s shack, when considering robbery, one is dealing with
threats of violence and not the actual application of physical violence to the
complainant. I accept that there is no evidence indicating that the second appellant
and Themb elani used violence in order to obtain Ms Payi’s cell phone .
[72] In my view, the act of shoving or kicking the shack’s door, to the extent that it
constituted an act of force causing the door to open , relates to the housebreaking
offence and not to robbery, as the action was completed and it preced ed the taking
of the cell phone . The evidence is that the only words spoken during the incident ,
after they gained entry, came from the second appellant who asked Ms Payi for her
cell phone . She did not testify nor elabo rate on the specific words spoken, and she
also did not testify that the appellant and Themb elani used threatening language
and/or uttered any words or phrases amounting to a verbal threat to her .
[73] Furthermore, n o evidence was led as to the positioning of the men during the
incident or whether they attempted to physically impose themselves upon her and/or
took up a threatening stance near her . Thus, the only evidence was that a request
was made for the cell phone , and she then handed it over, and it was ta ken from her
by the second appellant . In respect of the latter action, she also did not testify that
the cell phone was forcefully grabbed from her hand.
[74] This leads me to ask whether the request for the cell phone may be
considered to be an implied threat of violence? In this regard , I consider the
discussion in S v MacDonald19, where it was held that an assault on a bystander in
a shop amounted to an implied threat of violence of the intended victim of the
robbery. While the facts in that case are similar only to the extent that men entered
premises and made a request for an item which did not belong to them, the
discussion regarding an implied threat of violence is insightful.
[75] To illustrate, Ms Payi testified as follows :
“I cannot describe, Your Worship, how I felt when all – when this is happening
- when they were asking for the phone. The only thing that went through my
mind that I must just give the phone. The only time when I felt something, it
was when the whole or deal was done and when they had left, then I realise d
that I could have gotten hurt.” 20
[76] From the above testimony, it is clear that at the time of the incident, in Ms
Payi’s mind , she had no choice but to hand over her cell phone to the second
appellant and accused 2 . Therefore, it can only be inferred that the request for the
cell phone was calculated to create in her mind a fear that she would be hurt should
she refuse or decline to hand over the phone, and she believed that she would be
hurt were she to refuse to comply .
[77] In such circumstance, I am of the view that the request for the cell phone was
an implied threat of violence directed at her. Stated differently, the result of such
request for the cell phone , having regard to all the evidence presented in respect of
Count 6, leads to an inescapable finding that the second appellant impliedly
threatened Ms Payi with violence with the purpose of inducing her to submit to his
taking and remov al of her cell phone21.
19 1980 (2) AD 939 at 943A -945G
20 Record, p134
21 S v MacDonald supra, at 945E -G
[78] Ms Payi understood the implied threat within the request for the cell phone as
the second appellant intended : that should she fail to hand over the cell phone , she
would be assaulted or hurt. The result of the implied threat of violence was that Ms
Payi acquiesced to the removal of the cell phone from her possession22. The
conclusion is th erefore that the elements of the crime of robbery were all proved, and
that the Regional Magistrate was correct to have found that the intention of the
second appellant and Themb elani, in breaking into the shack, was to rob Ms Payi.
[79] According to the charge sheet, the aggravating circumstance was that the
second appellant and accused 2 threatened Ms Payi “to desist from resisting ”23. In
her judgment, the Regional Magistrate correctly found a duplication of charges in
respect of the housebreaking charges and the aggravated robbery charges.
[80] The difficulty I have with the judgment in relation to Count 6, is that the finding
of aggravated circumstances is bundled together with the second incident related to
Count 8 , when the appellants (without Themb elani) returned to Ms Payi ’s shack . I
have had regard to the judgment in more detail and note that the Regional
Magistrate concludes that the evidence in the matter is clear that the appellants’
intentions were to break in and enter Ms Payi’s premises with the intention to rob
and robbery with aggrava ting circumstances24.
[81] The Regional Magistrate’s finding is that the evidence proved that the
circumstances of the robberies fell within the definition of robbery with aggravating
circumstances and that the appellants uttered threats, and in so doing caused fear to
the complainants, thus causing them to submit to the taking of their property25. I
certainly gain the impression that she include d all th e instances of robbery with
aggravating circumstances related to both complainants in reaching suc h conclusion .
In my view, it is not advisable to have discussed the offences in a collective fashion
particularly as separate actions occurred at different times .
22 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 (1) SA 234 (A) 241
23 Count 7
24 Record, p353
25 Record, p353; see also, pages 344 -345, 348.
[82] Staying with Count 6, I disagree with the Regional Magistrate’s finding that
aggravated c ircumstances were present in the robbery committed toward Ms Payi at
20h00. My discussion and findings above regarding an implied threat of violence and
the subjective test applied to conclude that Ms Payi acquiesced to the request for her
cell phone becau se she feared that she would be hurt should she refuse or resist,
refer.
[83] Robbery with aggravating circumstances is not a separate crime with different
or further requirements as with robbery. In Minister of Justice and Constitutional
Development v Masingili , the Constitutional Court stated as follows regarding
robbery with aggravated circumstances26:
“[33] Robbery with aggravating circumstances is a form of robbery
with more serious consequences for sentencing. This distinctive form of
robbery is not to be confused with a completely different offence, as
courts seem to have done in different contexts. The respondents rely
heavily on the fact that the Supreme Court of Appeal in Legoa found that
the existence of aggravating circumstances should be established at
conviction stage. This, however, does not mean that armed robbery is a
separate crime. The concern in Legoa was that aggravating
circumstances should be proven before conviction to ensure fairness
when the sentence is considered . It would be unfair suddenly to confront
a convicted person with an enhanced penal jurisdiction at the sentencing
stage, if the state did not give sufficient notice of this possibility. This is
consonant with the constitutional principle of the rule of l aw, which
requires clarity and notice to an accused so that he or she can address
the state’s case comprehensively. In this sense it differs from other
circumstances that could aggravate sentence, like previous convictions,
which for obvious reasons may o nly be proven after conviction, when
sentencing is considered.
[34] In spite of the practice of treating armed robbery as what
sometimes appears to be a separate crime, it is not. It is robbery.
26 2014 1 SACR 437 (CC) at para [33] -[34]
Robbery is the theft of property by unlawfully and intentio nally using
violence or threats of violence to take the property from someone else .
The elements of robbery are the theft of property; through violence or
threats of violence; unlawfulness; and intent. The definitional elements of
armed robbery are no di fferent. The aggravating circumstances are
relevant for sentencing. Intent regarding the circumstances is not
required for conviction, exactly because an accused will be convicted of
robbery, given that armed robbery is merely a form of robbery .
(footnotes omitted)
[84] As seen from the above dicta, aggravating circumstances determine the
sentence to be imposed, and the presence or absence of aggravating circumstances
is decided from the objective facts27. From the objective facts in Count 6 , we can
exclude that grievous bodily harm was inflicted on Ms Payi , or that a firearm or other
dangerous weapon was wielded , as mentioned in section 1 of the CPA. I have
already found that the request for the cell phone , given the acquiescence which
followed, constituted an implied threat of violence directed at Ms Payi, but in my
view, more would be required to constitute a t hreat to inflict grievous bodily harm, as
defined in section 1(b)(iii) of the CPA.
[85] Section 1(1) of the CPA defines aggravating circumstances to robbery in the
following manner :
“(1) In this Act, unless the context otherwise indicates – ‘aggravating
circumstances’ , in relation to -
(a) …
(b) Robbery or attempted robbery, means -
i. The wielding of a fire -arm or any other dangerous weapon;
ii. The infliction of grievous bodily harm; or
iii. A threat to inflict grievous bodily harm,
27 See, for example, Davids v S 2019 (1) SACR 257 (WCC) at para [7] -[8]
by the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission of the
offence.”
[86] In the circumstances of Coun t 6, an implied threat to inflict grievous bodily
harm must be capable of establishment from the objective facts, and it cannot be
concluded that a request that Ms Payi hands over her cell phone implies an
immediate threat to inflict upon her grievous bodily harm. As an example, had the
second appellant or Themb elani or both, on request for the cell phone also uttered ,
for example, “or else you will see”, or words along those lines, then it may follow that
a threat to inflict grievous bodily harm was established.
[87] As held in Nakumba v S28, a recent Full Bench decision of this Division, with
reference to robbery, a threat constitutes an aggravating circum stance only if such
threat relates to the infliction of grievous bodily harm. In this matter, Ms Payi was
simply not questioned about the men’s demeanour, their stance nor anything further
and in any event, her testimony was that the cell phone was reques ted and handed
over.
[88] In conclusion on this aspect, I am accordingly not convinced that there was
sufficient evidence placed before the Regional Magistrate to cause her to conclu de
that the second appellant and accused 2 threatened to inflict grievous bo dily harm
upon the complainant. The acquiescence to the request for the cell phone and its
immediate taking from her possession, convinces me that the offence committed
was robbery and that the conviction of the second appellant on housebreaking with
the intention to rob and robbery with aggravating circumstances, was thus wrong29.
[89] Accordingly, the second appellant’s appeal against the conviction on
Count 6 will be upheld to the extent that it will be substituted with a conviction
of housebreaking with the intention to rob and robbery . Such finding would
28 2024 (1) SACR 81 (WCC) par [37]
29 See Mahlahla v S 2023 ZAECGHC 125 (Unreported – Malusi J, delivered 25 January 2023 para
[13]-[14]
thus also affect the sentence imposed on the second appellant in respect of
count 6.
Count 8: Housebreaking with intent to commit a crime unknown to the State
[90] In respect of the s econd housebreaking incident at Ms Payi’s premises
several hours after the first, which involve both appellants, there is no issue with the
Regional Magistrate’s finding and conviction of the appellants on the charge of
housebreaking with the intention to rob and robbery with aggravating circumstances.
The State proved the breaking and entering, and the threats to shoot and kill Ms Payi
constitute d a clear threat to inflict grievous bodily harm.
[91] The objective evidence also indicate d that the appellants took her jackets and
food, unlawfully so, in the execution of one action. I am thus satisfied that the
conviction of both appellants on count 8 leaves no room for interference on appeal.
Accordingly, the appellants’ appeal against conviction on Count 8 falls to be
dismissed.
[92] In my view, th e Regional Magistrate was also correct, given the facts
prevalent in the incidents at Ms Payi’s shack, that counts 7 and 9 were a duplicate of
the charges on counts 6 and 8.30
Counts 2 and 3 : Rape
[93] Count 2 applies to the first appellant and Count 3 to the second appellant.
They were charged with contravening section 3 read with various sections of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act (SORMA)
read wi th section 51(1) of CLA A because it was alleged that the rapes were
committed in circumstances where the victim was raped more than once whether by
the accused or a co -perpetrator or accomplice.
30 See S v Bam [2020] ZAWCHC 68 par [86]
[94] On appeal, it was argued that the State relied on common purpose when it
charged the appellants with rape as read with section 51(1) of the CLA A, and that
there were two counts o f rape arising out of one incident. Firstly, in spite of clearly
showing emotion once during her testimony when recalling her ordeal , Ms C[...] was
clear and firm during her testimony regard ing the incident in the early hours of 26
May 2021. The appellants h ad threatened to kill her if she did not open the door .
[95] The Regional Magistrate’s finding s regarding Ms C[...] reliability of her
evidence and the identity of the two males and sequence of events are unassailable.
Ms C[...] ’s report of the rapes to her neigh bour immediately after the appellants left
her shack is corroborated by Ms Payi who heard her knocking on the other
neighbour’s door , and Mr N[...] , who was telephonically informed by the victim that
she had been rape d by the appellants. As a single witness to the rape, Ms C[...] ’s
version was not attac ked and was barely questioned but for a b are denial by the
appellants that they were not present and have no knowledge of the incidents . She
was reliable, con sistent and her evidence was correctly accepted.
[96] The criticism directed at the Regional Magistrate that she failed to evaluate
the medical and oral testimony correctly , is without merit. I say this as I am of the
view that the Regional Magistrate’s evaluation and assessment of the evidence
presented in support of the rape counts, w as correct. The appellants’ submission
that she erred when she found that the medical evidence corroborated the victim’s
version that she was rap ed is also unconvincing.
[97] Dr Matanda, in my view, did not contradict Dr Hafejee’s findings on the
material respects. If anything, she differed from Dr Hafejee that one could speak of
clefts and bumps when the medical examination showed a carunculated hyme n,
meaning remnants of a hymen. She then equated the clefts and bumps to being the
remnants of the hymen membrane, and what was left were pieces which appeared
as small clefts and bumps. Thus, to submit that Dr Matanda contradicted Dr
Hafejee’s findings in material respects, is an incorrect assessment and consideration
of the medical evidence in the matter .
[98] On the important conclusion that a 3mm tear to the vestibule was a fresh tear
and indicative of forced vaginal penetration, Dr Matanda a greed with her colleague.
The appellants have argued that the witness stated that forceful penetration could be
one of the causes. This is correct but to the extent that they wish to imply that the
fresh tear was not caused by them raping the victim, or that she was raped by other
persons, is opportunistic to say the least when I consider the evidence holistically.
[99] The victim maintained that she knew the appellants in passing and that they
lived close -by and the latter fact was not seriously attacked in cross examin ation .
Furthermore, she explained that they were the same men who earlier, at 20h00
during the first incident, came into her shack and took her items. At midnight, on their
second visit to her shack, they wore the same clothes, there was sufficient light t o
identify them, and she knew th e appellants by their nicknames, Vovo and Blacks.
[100] In my view, the Regional Magistrate correctly found Ms C[...] ’s version
regarding the reporting of the rapes and events after the rapes, w as corroborated by
Ms Payi and Mr N[...] . Thus, the men who demanded entry to Ms C[...] ’s shack , were
the same men who hours earlier, stole from her . Ms C[...] ’s evidence that she was
pushed onto the bed by the second appellant , who forcefully raped her while the first
appellant stood watching at the door was also properly accepted, and similarly her
description of the second rape by the fist appellant.
[101] There is no doubt that each appellant raped the complainant once . To add,
the gynaecological examination w as conducted within hours of the rapes occurring in
the early hours of 26 May 2021 and the doctor’s recordal of a 3mm fresh tea r to the
vestibule was unchallenged . The proximity of time of the gynae cological examination
to the rapes reinforces my view that the tear to the victim’s fossa navicularis was
indeed caused by the appellants’ forceful penetration s of the complainant ’s vagina .
The facts accepted by the Regional Magistrate were consistent with her finding that
the appellants raped Ms C[...] .
[102] It was submitted that the DNA report, Exhibit D, did not support the State’s
case of rape. The finding of the forensic analyst in her section 212 statement was
that not enough male DNA was obtained from the vaginal swabs taken from Ms
C[...] . In my view, the findi ng does not damage the State ’s case due to the strength
of Ms C[...] ’s version, along with the medical evidence in the J88, Dr Matanda’s
confirmation of Dr Haffejee’s finding of forceful vaginal penetration and the
corroborating version of Ms Payi and Mr N[...] that Ms C[...] reported the rapes to
them and was distraught and emotional at the time. Ultimately, the Regional
Magistrate was correct not to have placed much weight on Exhibit D’s finding as it
neither supports, nor was it detrimental to , the strength of the State’s case on counts
2 and 3.
[103] The further argument on appeal is that the State elected to charge the
appellants with rape as read with section 51(1) of the CLA A, in two separate counts
arising out of the same incident. The plea pro ceedings indicate that the Regional
Magistrate queried the State prosecutor who clarified that the complainant was raped
by two accused , at the same time31.
[104] Section 51(1) read with Part 1 of Schedule 2 of the CLA A triggers life
imprisonment as the manda tory sentence for rape when committed in circumstances
where the accused acted in the furtherance of a common purpose or conspiracy and
the evidence at trial proves that the victim was raped by more than one person who
acted in the furtherance or execution of a common purpose or conspiracy to rape the
victim, irrespective of whether or not any other person who so acted in the execution
or furtherance of a common purpose or conspiracy has been convicte d of or charged
with or is standing trial in respect of the offence in question32.
[105] The facts were that the appellants entered the shack together after
threatening the complainant . The first appellant was present while the second
appellant raped Ms C[...] , standing and watching at the door and providing a source
of light while the second appellant sexually penetrated Ms C[...] without her consent .
As correctly found, when the second appellant completed the act , the first appellant
31 Transcript, p45
32 Schedule 2, Part 1 , Rape as contempla ted in section 3 of SORMA , when committed as set out in
(a)(ii)
took his turn and also proceeded to rape her. At this stage, the second appellant
stood and watched his co -accused rape the complainant.
[106] These appellants acted in c oncert with one another , with the intention and
purpose that each would take their turn to rape Ms C[...] while the other stood by and
watched , and in doing so, each appellant achieved the purpose to execute the rape
of Ms C[...]33. She was therefore raped more than once, in two actions by two
accused.
[107] In the circumstances, the Regional Magistrate committed no error in her
findings and section 51( 1) accordingly applies to each appellant . Thus , I find that no
misdirection nor er ror occurred in respect of the conviction of rape read with section
51(1) of the CLAA and Part 1 of Schedule 2 of that Act. The appeal against
conviction on counts 2 (first appellant) and 3 (second appellant) shall be
dismissed.
Counts 4 and 5 : Compelling or causing children to witness sexual offences
[108] The evidence which the Regional Magistrate accepted was that Ms C[...] ’s two
minor children, aged 6 and 3 respectively, were on the bed in the shack, crying,
when she was raped by each appellant. Her version a bout the presence of the crying
children on the bed during the commission of the rapes, was never challenged.
[109] It was presented as a ground of appeal, that counts 4 and 5 arose out of one
incident and represent a splitting of charges. Section 83 of the CPA states as
follows:
“83 Charge where it is doubtful what offence was committed
If by reason of any uncertainty as to the facts which can be proved or if for
any other reason it is doubtful which of several offences is constituted by the
facts which ca n be proved, the accused may be charged with the commission
33 See doctrine of common purpose generally, S v Safatsa 1988 (1) SA 868 (A) 894, 896, 901.
of all or any of such offences, and any number of such charges may be tried
at once, or the accused may be charged in the alternative with the
commission of any number of such offences ."
[110] Section 83 allows the State, as the prosecuting authority, a discretion to put
as many charges as possible as may be justified by the facts, either as main or
alternative charges34. In S v Dlamini35, Majiedt JA made the following caution about
section 83 and the duplication of convictions:
“[55] A brief consideration of the principles regarding duplication of
convictions is apposite. Section 83 of the Criminal Procedure Act 51 of 1977
enables the State to d raft charges as widely as it may deem necessary, to the
extent that it may technically amount to a duplication of charges. That the law
permits. But what is not permitted is duplication of convictions in order to
safeguard an accused against being convicte d twice in the same case for the
same offence. As stated by Cachalia JA, where the application of the two
tests to determine whether there has been a duplication of convictions yields
no clear result, a court is called upon to apply its common sense, wisdo m,
experience and sense of fairness to reach a decision.36 As demonstrated
above, on the evidence and in applying the two tests, three separate offences
were committed. To hold otherwise would be to distort a fundamental legal
principle, leading to anomalo us results. As Wessels JA said in S v Grobler en
‘n ander:37
‘The test or combination of tests to be applied are those which are on a
common -sense view best calculated to achieve the object of the rule.’
The rule is primarily aimed at fairness. This, however, embodies fairness to
both the accused and the State. Harms DP put it thus in the context of the
Constitution’s fair trial provisions in s 35:
34 S v Prins 11144/2003, Moosa J , Erasmus J concurring, delivered 29 August 2003 , par 6
35 2012 (2) SACR 1 (SCA)
36 S v Whitehead & others 2008 (1) SACR 431 (SCA) para 35; S v Dos Santos & another 2010 (2)
SACR 382 (SCA) para 44.
37 S v Grobler en ‘n ander 1966 (1) SA 507 (A) at 523F.
‘Fairness is not a one -way street conferring an unlimited right on an accused
to demand the most favourable possible treatment but also requires fairness
to the public as represented by the State’.38
The rule cannot be applied where it would lead to manife st unfairness to the
State, as would be the case, in my view, were Cachalia JA’s views to be
upheld. To borrow again from Wessels JA in S v Grobler en ‘n ander:39
‘ The main purpose and social function of criminal proceedings are to establish
the guilt of an accused person in respect of criminal conduct so that he may
be punished according to law for that conduct.’
The practice of the DPP, referred to by Cachalia JA in para 26, is ill conceived
as s 83 of the Act specifically permits a broader approach to be followed in the
formulation of charges. But once evidence is heard a court should be mindful
of the rules regarding the duplication of convictions. The manner in which
charges had been formulated in the present matter constitutes the proper
approach.”
[111] It is important to note from the above dicta in S v Dlamini , and authorities
such as S v Grobler en ‘n Ander40 that the single intent and continuous transaction
test and whether the evidence necessary to establish one offence involves proving
another, involve two tests to determine whether there has been a duplication of
convictions. The tests may be applied individually or collectively41. These tests to
determine whe ther a duplication of charges has occurred should be regarded as
practical guides and are not rules of law, such that if they fail to yield results to the
trier of fact, then common sense /logic , wisdom, experience and fairness to both
sides should dictate the Court’s conclusion42.
[112] In respect of counts 4 and 5 , I cannot agree with the submission regarding a
duplication of charges. There were two minor children who were both present during
their mother’s rapes by the appellants. Count 4 relates to one child complainant and
Count 5 relates to the other child complainant. The se wer e individual complainants
38 See: National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) para 5.
39 At 522F -G.
40 1966 (1) SA 507 523F
41 S v Benjamin en ‘n Ander 1980(1) SA 950 (A) at 956 G, 957 E -H.
42 See National Director of Public Prosecutions v King 2010(2) SACR 146 (SCA) par [5]
who were present on their mother’s bed, on which she was pushed and raped by
each appellant. There can thus be no question of a duplication of charges.
[113] During argument of the appeal, the appellants’ counsel queried how it was
possible for the children to see the sexual offences committed toward their mother .
In my view, the answer is found in the definition of the offence in section 21(1) of the
SORMA Act, which states the following:
21 Compelling or causing children to witness sexual offences, sexual
acts or self -masturbation
(1) A person (‘A’) who unlawfully and intentionally, whether for the sexual
gratification of A or of a third person (‘C’) or not, compels or causes a
child complainant (‘B’), without the consent of B, to be in the presence
of or watch A or C while he, she or they commit a sexual offence, guilty
of the offence of compelling or causing a child to witness a sexual
offence ,”
[114] From the above description of the offence created in section 21(1), it is
apparent that the following jurisdictional facts must be present to establish the
offence of compelling or causing children to witness sexual offences: the
accused must, whether for his own or a third party’s sexual gratification ,
unlawfully and intentionally; compel or cause a child complainant without such
child comp lainant’s consent; to be in his/her presence or in the presence of
the third party , or watch the accused or the third party; while such accused or
third party, commits a sexual offence.
[115] From the above elements , it is clear that the sexual offence need not be
perpetrated against the child and can be perpetrated by the accused , against anyone
(the third party /complainant ). The child complainant is placed in the position where
he/she is either present when the sexual offence is committed or watches the sexual
offence being committed by the accused or third party. With reference to the facts of
this case, and in respect of each of Ms C[...] ’s minor children and each of the
appellants, the finding was that such children were present when the rapes occurred.
The argument or query as to how the children could see what was happening to their
mother in the shack, misses the point .
[116] The evidence, which remained unchallenged, was that although one of the
appellants switched off the shack’s light, the first appella nt provided light while the
second appellant raped Ms C[...] on the bed, while the children were on the bed,
crying. By all accounts , the ineluctable conclusion is that each child saw and was
able to see, by virtue of their position s on the bed, the sexual o ffences pe rpetrated
upon their mother on the same bed .
[117] More importantly, when I have regard to the definition of the crime in section
21(1) of SORMA , it is apparent that the Legislature’s intention in the section was that
the crime is committed (acceptin g that all other jurisdictional facts are present) when
the child is in the presence of the accused or the third party OR watches the
accused or the third party while the sexual offence takes place . Thus, even if, for
arguments’ sake, the children did not watch (and therefore, by implication did not
see) the commission of the appellants’ rapes of their mother , the offence is still
committed as long as the sexual offence occurs in the presence of the child or
children . This is sufficient to find that the elements of the offence are satisfied.
[118] The remaining aspect is whether it was established that each of the
appellants caused or compelled the two children, without their consent, to watch or
be present du ring the commission of the offences. In my view, even though the
evidence indicates that the appellants had no physical interaction with the children
before and during the rapes, I am satisfied that the circumstances prevailing during
the early h ours of 26 May 2021 in Ms C[...] ’s shack, convince me that the children
were compelled to watch or be in the presence of the appellants’ commission of the
rapes, for the following reasons: firstly, the children were present when the
appellants entered the sh ack to rape their mother ; the shack was an open -plan, one -
roomed area, with one bed ’ and, the children were with their mother, asleep on the
bed when the appellants entered after threatening to kill Ms C[...] .
[119] The circumstances of the second incident (the rapes) and the ages of the
children lead me to find that they did not consent to either being present or watching
the sexual offences perpetrated against their mother. F urthermore, the door to the
shack was closed and blocked by each of the appellants while the other committed
the rape thus preventing the children from leaving the shack , and even if the children
had the maturity and foresight to try to leave or protest, they were in a vulnerable
and weakened positio n throu ghout the commission of the rapes due to their ages
and the danger of the situation inside the shack.
[120] Having regard to the above, I am thus satisfied that the children were
compelled to witness and be in the presence of the commission of the sexual
offences perpetrated by the appellants against Ms C[...] , and that the State proved all
the elements of counts 4 and 5. Thus, the Regional Court’s finding on conviction
on counts 4 and 5, cannot be faulted. The appeal against con viction on counts
4 and 5 thus f ail.
Appeal against sentence
[121] During the appeal it was subm itted on behalf of the appellants that there were
substantial and compelling factors which warranted a deviation from the life
imprisonment and minimum senten ces imposed on counts 6 and 8 re spectively
imposed . The Regional Magistrate found no substantial and compelling factors
applicable to either appellant .
[122] The determination of sentence falls within the discretion of the trial Court. In
Director o f Public Prosecutions, Kwa Zulu N atal v P43, the Supreme Court of
Appeal framed the test for interference by an appeal Court in the sentence of a trial
Court , as follows:
“the test f or interference by an appeal court is whether the sentence imposed
by the tr ial court is vitiated by irregularity or misdirection or is disturbingly
inappropriate ”.
43 [2005] ZASCA 127 par [10]
Interfer ence on appeal may also occur where the sentence imposed by the Court a
quo is so disproportionate or shocking that no reasonable Court could have imposed
it44.
[123] The appellants’ personal circumstances were placed on record in a brief and
perfunctory manner. The first appellant was a first offender , 22 years old at the time
of sentencing, unmarried, unemployed and had a three -year old child who received a
SASSA grant. He attained grade 10 at school and had contracted HIV Aids while
awaiting trial in prison.
[124] The second a ppellant had previous convictions, was 39 years old at the time
of his sente ncing, unmarried with an eight -year-old child. He worked as a gardener
prior to his arrest , earning R600 per week and was the sole breadwinner for his child.
His highest progress academically was grade 1 0 and as for his health, he suffered
from asthma and was provided with an as thma pump while in incarcerated. The
second appellant had two convictions in November 2018 for housebreaking with
intent to steal and theft, which were taken together for purposes of sentencing and
for which he received a wholly suspended sentence of three years’ imprisonment
suspended for five years on condition that he does not commit a similar offence .
[125] The legal representative for the appellants submitted that life imprisonment
has no room for reform ation of the appellants, that the sentence should be tempered
with the element of mercy and that the acc used were still young. The respondent
submitted that the offences were very serious and that the maximum sentence
should be imposed for the rape counts and robbery with aggravated circumstances.
The judgment on sentence took into account the triad, as well as mitigating and
aggravating factors , the effect of the crimes on the complainant s, and the aims and
purpose of sentencing . In this regard, I am satisfied that the Regional Magistrate
properly considered all these aspects and that the sentences she imposed were not
tainted by irregularity or misdirection.
44 S v Sadler 2000 (1) SACR 331 (SCA) par [8]
[126] In S v Malgas45 the S CA held that Courts are free to depart from prescribe d
minimum sentence s but may not merely pay lip service to the fact that the legislature
prescribed specific minimum periods of imprisonment which ought to be appropriate
in respect of certain crimes. Similarly, in S v Matyit i46, Courts were firmly reminded
that the departure from prescribed minimum sentences should not be for vague and
ill-founded reasons . In this matter, it has been submitted that life imprisonment does
not allow fo r reformation of the appellants, who are young and that the imposition of
such a sentence is shockingly inappropriate. The first appellant’s HIV status has also
been brandished as a factor warranting a departure from the prescribed minimum
sentences .
[127] As far as the appellants’ personal circumstances are concerned, the
Regional Magistrate was correct to find that there were no special factors for
consideration, and nothing stands out in respect of their circumstances. It has been
submitted that the youth of the first appellant is an important factor , yet the first
appellant actively participated in returning to Ms C[...] ’s shack hours after the first
incident, watched as the second appellant raped her in the presence of her minor
children, provided a light sour ce to his co -accused during the commission of the rape
and then himself, raped her.
[128] Rather than sounding the alarm or changing his mind and helping her, he
thought nothing of raping her and himself committing a most despicable crime,
invading her bodily integrity, preying on her vulnerability and doing so while her
young children looked on. At the time of the commission of the offences in respect
of both complainants, he was 19 years old, ha ving just attained adult status.
[129] The first appellant was not dete rred by his youthfulness when he committed
surely one of the most serious crimes of rape . As a first offender at the time, he
displayed no concern for the victim and her children who witne ssed the commission
of sexual offence s. Insofar as his HIV status is concerned, he would be able to
receive treatment in prison . In my view, the Court a quo was correct not to consider
this to be a substantial and compelling factor warranting a deviation from the
45 [200] ZASCA 30 at par [25]
46 2011 (1) SACR 40 (SCA) at par [23]
prescribed minimum sentence . Thus, the argument regarding the first appellant’s
youthfulness as a substantial and compelling factor is, in my view, unconvincing.
[130] As for the second appellant who was in his late 30s, he had already embarked
on a path of crime. Having read the SAP 69s , it is apparent that he was convicted in
November 2018 on housebreaking charges and sentenced to three year s’
imprisonment wholly su spended for five years, meaning that at the time of the
commission of the offences in this matter in 2021 , the 2018 suspended sentence
was hanging over his head . The suspended sentence clearly did not deter him from
committing housebreaking offences in respect of Ms Payi’s property and I view this
as an aggravating factor. As with the first appellant, I am satisfied that the Regional
Magistrate did not err in finding that there were no substantial and compelling factors
present to justify a deviation from the prescribed minimum sentences.
[131] The question remains whether the sentence of life imprisonment was
disturbingly inappropriate, disproportionate or so shocking that no reasonable Court
would have imposed it. One must have regard to the manner in which the offences
were carried out. The appellants pr eyed on the vulnerability of both complainants,
especially Ms C[...] , and like cowards, struck firstly in the early evening, and then in
the early hours of the morning when she was asleep in her home with her children.
These appellants violated the sanctity of the complainant s’ homes , women who lived
in the same community, within walking distance of them.
[132] The rapes were committed so brazenly, in disregard of Ms C[...] ’s bodily
integrity, the privacy of her home and the presence of her young children. Sexual
offences and rape particularly, is a daily scourge and inundate the Regional Courts ,
and the actions of these appellants infringed Ms C[...] ’s right to her bodily integrity,
privacy , human dignity and equality, as highlighted in S v Mudau47.
[133] Ms C[...] was threatened with her life and raped twice so to submit that life
imprisonment, which is the applicable min imum sentence for rape as referred to in
Part 1 of Schedule 2 , is either inappropriate, disproportionate or shocking , is not only
47 [2014] ZASCA 43 par [6]; see also S v Chapman 1997 (3) SA 341 (SCA) 345A - B.
unconvincing but based on an unsound reasoning or failure to appreciate the seri ous
nature of the offences in the circumstances. The seriousness of the rape offences
were correctly emphasised above the personal circumstances of the appellants in
determining the appropriate sentences to impose , and mercy, in my view, pays no
part in the sentencing of these ap pellants.
[134] It is evident from the victim impact statement that the rapes had a severely
negative impact on Ms C[...] ’s life and marriage. Her life fell apart, she became
distant from her husband, feared men and being touched and eve ntually, her
marriage ended, and she moved to a different area. Her statement clearly sets out
the stark reality of the effect that the sexual violation had on her, and the unfortunate
and in my view, unfair stigma which some people in her community attach to her as
a woman who was raped.
[135] At the time of writing her statement, she was struggling to pay rent , had
started drinking alcohol and was in need of therapy or counselling which she had not
received. The effect on her chi ldren of witnessing the sexual offences is unknown as
they, too, had not been for counselling. I consider it an aggravating factor that as a
result of the rapes, Ms C[...] contracted HIV Aids.
[136] In all the circumstances addressed by the Court a quo and highl ighted above,
including the period spent in custody awaiting trial, the imposition of life
imprisonment for the appellants on Counts 2 and 3 is appropriate, proportionate to
the nature and seriousness of the offences and circumstances and just. Thus, the
sentences of life imprisonment on counts 2 and 3 shall be confirmed.
[137] Ms Payi similarly gave an account of the effect of the housebreaking at her
premises. Her relationship with her husband was fractured and she was fearful of
even leaving her house as a result of her experienc e of these serious crimes. I would
hope that both complainants (and Ms C[...] ’s children ) receive the necessary therapy
or counselling which they have expressed they need.
[138] In conclusion, in view of the interference in the findings on conviction on
counts 1 and 6, it is important to note that the minimum sentences imposed in
respect of both these sentences would not apply. In the circumsta nces, the
sentences of 15 years ; direct imprisonment for each appellant on count 1 ,
which I have found to be theft, will be substituted with 6 (six) years; and, the
sentence of 15 years’ for the second appellant on count 6, which I have found
to be housebreaking with intent to rob and robbery, will be substituted with 10
(ten) years ’ direct imprisonment . These sentences will be backdated to 27
June 2024.
_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT
I agree and is so ordered,
_____________________________
BP MANTAME
JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Adv L N Adams
Instructed by: Legal Aid
For Respondent: Adv Thaiteng
Instructed by: Director of Public Prosecutions