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)
REPORTABLE
Case no.: A180/2023
In the matter between:
C[...] V[...] D[...] M[...] Appellant
And
THE STATE Respondent
Coram: Saldanha J et Pangarker J
Hearing dates: 1 November and 5 December 2024, 20 March 2025
Judgment delivered (electronically): 22 July 2025
JUDGMENT
PANGARKER J (SALDANHA J concurring)
Introduction
[1] On 13 October 2019 1, in a house in Belhar, Cape Town, Ms. B. v R (the
complainant) became the victim of the most horrific, violent and brutal crimes
perpetrated against her by her husband, Mr. C[...] v[...] d[...] M[...], the appellant. The
house literally became her prison where she endured severe and repeated physical
assaults to various parts of her body by the appellant in an attempt at murdering her,
multiple rapes and sexual assault. She remained in the house for three days, in a
bloodied and injure d state, with medical assistance denied to her by the appellant
and where, on the third day during his temporary absence, she managed to escape
from the house.
[2] The first person she encountered, a female neighbour, dismally refused to
provide her with any assistance despite her bloodied condition and the obvious pain
she was in. The neighbour dismissively claimed that she did not want to involve
herself in what she regarded as no more than a domestic dispute. A second
neighbour called the Belhar SAPS fo r urgent assistance, only to be informed that
they were too busy attending to a shooting in the area. No police officers arrived to
take her to the police station or a hospital. She was eventually assisted by the sister
of the appellant and her own father, Mr v R, who had been contacted for assistance.
He immediately took her to the police station where she waited for two hours without
any police officer paying any attention to her despite her visible battered and
bloodied state. These are but some of the s hocking details that emerged in this
appeal.
Plea and conviction
[3] On 21 September 2022, the appellant pleaded guilty to one count of
attempted murder, and not guilty to three counts of rape and one count of sexual
assault, all of which occurred on 13 October 2019 in Belhar. The Bellville Regional
Court convicted him on 1 November 2022 on all five counts. In respect of the rape
Court convicted him on 1 November 2022 on all five counts. In respect of the rape
1 The charge sheet was amended to reflect the date of the attempted murder, rapes,
and sexual assault.
counts, the appellant faced life imprisonment as the offences fell within the ambit of
section 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA) as the rapes
were listed in Schedule 2 P art 1 of the CLAA. Section 5(1) of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 applied to the
sexual assault.
[4] On 15 November 2022, the Regional Magistrate sentenced the appellant to
15 years' direct imprisonment fo r the attempted murder (Count 1), and life
imprisonment for the rapes and sexual assault (Counts 2 to 5.) The Regional
Magistrate took the convictions together for the purposes of sentencing. The
appellant did not apply for leave to appeal in relation to t he attempted murder but
enjoyed an automatic right of appeal in respect of the sentence of life imprisonment.
During the appeal hearing, the court was informed that the appellant decided to
withdraw the appeal against convictions on the rapes and sexual as sault. A formal
notice of withdrawal was duly filed. The appeal thus proceeded only against the
sentence of life imprisonment imposed in respect of counts 2 to 5.
Factual background
[5] The horrific, shocking sequence of events emerge from the record of the
proceedings in the court a quo and the judgment of the Regional Magistrate. The
appellant and the complainant were married in 2014 of which two minor daughters
were born. By 2017, they were estranged, with each living separate lives but having
intermittent contact with each other. During 2019, the complainant attended a
Christian-based recovery and rehabilitation centre due to her abuse of drugs, more
specifically, "tik". The minor children resided with her father, with whom it appeared
she had a difficult relationship due to his "tough love" approach.
[6] In October 2019, the complainant left the rehabilitation centre and sought
accommodation. Her father was not prepared to accommodate her due to her history
accommodation. Her father was not prepared to accommodate her due to her history
of drug use and she therefore went to the appellant's residence in Belhar and sought
accommodation on a temporary basis. The appellant had attended some sessions at
the rehabilitation centre and claimed to have an interest in re -establishing the family
bond.
[7] By all accounts, despite the details being sketchy, neither the complainant nor
the appellant really wished to rekindle their fractured marital relationship, which
seemed to have been characterised by incidents of domestic violence and mutual
drug abuse. Nonetheless the appellant exp ressed a willingness to assist the
complainant for as long as she wished and/or until she found employment.
[8] The complainant slept at the residence in Belhar for approximately a week
without incident. Their conduct toward each other appeared to be civi l and the
appellant accepted that they were no longer in a loving relationship. Each sought
forgiveness from the other for past events and the complainant's plan was to return
to Ceres to her current partner and to then look for employment.
[9] On 12 October 2019, the appellant, who ran a driving school, left for work and
was to have returned in the afternoon with a pair of sneakers and food for the
complainant. He however only returned the evening, without any food. The
complainant noticed that his mood had changed and that he appeared to be " zoned
out" as she put it and pre-occupied.2 At some stage he sat down on the bed with her.
She became scared and wanted to leave the house as she knew from previous
occasions, that his behaviour and body language lea d to physical abuse of her. He
said to her that they were going to get food but instead turned off the television and
switched on the bedroom light.
[10] Ominously the atmosphere in the room suddenly changed. The appellant
demanded that she inform him how many times over the years she had taken him for
a ''p..s" and proceeded to threaten her by saying that he would " f..k" her up with the
use of a cricket bat which he took from the top of a cupboard. Out of fear, the
complainant desperately grabbed the cricket bat from the appellant, sat on top of it
and that appeared to have diffused the situation. She also beseeched him that they
and that appeared to have diffused the situation. She also beseeched him that they
had promised each other not to fight. The appellant then left to buy food, leaving her
alone in the house. In an attempt at leaving the house she discovered th at the
appellant had locked all the doors from the outside, thus preventing her escape. He
2 Record, p18
returned later with food and appeared to be in a calmer mood. He thereafter went
into a nearby room where he smoked mandrax.
[11] The next morning, 13 October 2019 , the appellant left the house to attend to
his driving school instructions. He again locked her in the house without any food.
On his return at about 18h00, she asked him about food and the sneakers. His
response was that she took him for a '' p..s," had ruined his life and then spat in her
face and slapped her. She fought back. The appellant again took the cricket bat and
while she covered her face with her hands to ward off any blows, he hit her with it,
striking her little finger.
[12] The complainant extended her injured hand to show him the damage to her
finger, but the appellant continued threatening to hit her all night until she told him
everything he demanded to know. She went to the kitchen on the pretext of wanting
to drink water, hoping her cry ing would alert the appellant's brother who lived in a
wendy house on the premises, nothing came of it. The appellant demanded that she
return to the room which she did. When in the room, the appellant hurled a number
of accusations against her. He gave he r another blow with the cricket bat, this time
striking her arm.
[13] In utter desperation the complainant got up from the bed, punched him in the
face and choked him. In retaliation he grabbed by her hair, dragged her to the
ground and holding both side s of her head, banged her head three times on the
carpeted floor, causing her to scream out in pain. The appellant got off from her. She
then managed to drag herself onto the unmade bed, using her elbows to lever
herself up. The appellant hit her again wit h the cricket bat, this time striking against
her ankle. She heard a cracking sound from her ankle because of the impact.
[14] The threats continued while the complainant managed to seek cover and
refuge under the duvet cover and blanket in the desperate hope that it would soften
refuge under the duvet cover and blanket in the desperate hope that it would soften
the impact of the further blows that rained on her body. She explained how the
appellant continued hitting her to the extent that she simply answered " Yes" to all his
questions and false accusations in the desperate and vain hope that he would stop
the attack on her.
[15] While laying on her back on the bed the appellant stood over her with one foot
on either side of her. He brought the cricket bat down on her again and she shifted
her head slightly to avoid the bat striking her forehead. The cricket bat struck the
back of her head. She claimed that she then saw " only pink, looking like pink grains
of rice"3 in front of her. She touched her head and felt a large hole in her head. She
realised that the '' pink grains " had come from this bleeding hole in her head that
splattered blood and pieces of flesh onto the bed linen.
[16] The complainant became dizzy and all the while the appellant persisted in
swearing at her. He accused her of messing on the bed and forced her to pick up the
pieces of flesh from her head wound and eat it. She was thus forced to eat her own
flesh.
[17] She then passed out in excruciating pain. She explained that she " cut
out"from time to time, in reference to losing and then regaining consciousness
because of the devastating blow to her head. The appellant also persisted with
threats to '' f..k her up." He ordered her to lie on top of him, but she lacked the
strength to do so. She tried raising herself on her hands but again lost
consciousness. Upon regaining consciousness, she found herself on her back and
tried to raise herself. The appellant, had at that stage already dropped his pants and
forcefully shoved his penis into her mouth and demanded that she suck it.
[18] The complainant cried out that she was tired, but he simply held her up by her
hair and continued to force his penis into her mo uth. She lost consciousness again.
Upon regaining consciousness, she found the appellant on top of her and that he
had inserted his penis into her vagina. He said to her that he could not ejaculate in
her, whereupon he proceeded to lift her to her side, op ened her legs wider and
inserted his penis into her anus. She was physically helpless and unable to ward him
inserted his penis into her anus. She was physically helpless and unable to ward him
off her. After penetrating her in the anus, the appellant proceeded to place his penis
on her face and ejaculated onto it.
3 Record, p40
[19] He subsequently cleaned himself . She was left with very little strength in both
of her arms to even clean her herself. Fatty tissue hung from an open wound on her
leg caused by the blow. The appellant thereafter left the house to buy food. Every
time she raised her head t o attempt an escape, the complainant lost consciousness.
She realised that it was late in the evening, as she could not hear any people outside
who could come to her assistance.
[20] In excruciating pain, she desperately requested painkillers from the a ppellant
on his return or that he simply drop her off at a local clinic. He refused but promised
to take her to the clinic the following day on his return from work. He claimed that
she would inform people what he had done to her if he took her to the clin ic that
night . He also placed a blanket over the bedroom window so that she was unable to
tell whether it was light or dark outside.
[21] The next morning, the complainant again pleaded for painkillers and to be
taken to a clinic. Again, the appellant d ismissed her request. He claimed that he
would take her to the clinic after dark when the clinic would not be busy. In
desperation, she promised him that she would say that her injuries were sustained
during a motor vehicle accident and would not mention h im nor implicate him in any
way. The appellant nonetheless refused to give her any pain medication or take her
to a clinic for much needed urgent medical attention.
[22] Sometime later, he again threatened to hit her with the cricket bat. Its handle
had even broken during the earlier attack on her. She asked him for water
whereupon he pulled her by her hair into the bathroom and forcefully pushed her
face into the bathtub that contained soiled water and forced her to drink it. He took
her back to the bedr oom and despite her showing him the serious injuries to her
body , he again blatantly refused to take her to a clinic.
[23] As he left for work the next morning, the appellant told her that when
[23] As he left for work the next morning, the appellant told her that when
conducting driving lessons, he would look out for a hole i n which to bury her so that
she would never be found by her family. When he left, she discovered that he had
not locked the bedroom door from the outside. In utter desperation, she realised that
she had to get out of the house. She believed that she would not get out alive upon
the appellant's return. She forced herself up, held onto cupboards and walls, and
managed to get to a window where she called out to an opposite neighbour for help.
She showed the neighbour her injuries and desperately exclaimed that the appellant
was intent on killing her. The neighbour's response was that she did not have a
phone and dismissively stated that she did not want to become involved in what she
regarded as no more than a domestic dispute between the complainant and the
appellant.
[24] The complainant thereupon alerted a young child on her way to school of her
desperate plight. The child called her mother, who called the Belhar SAPS. As
indicated, the police claimed that they were too busy attending to a shooting in the
area. The complainant managed to escape through a back door into the street where
she found the appellant's sister, Ms. E[...] v[...] d[...] M[...] and called out to her for
assistance. She informed, a shocked Ms v[...] d[...] M[...] that the appellant had
beaten her. Ms v[...] d[...] M[...] assisted the complainant into a change of clothes
and wiped the blood from her battered face. She then took the complainant to the
premises of the first neighbour who had initially turned her away. Ms v[...] d[...] M[...]
called the complainant's father, w ho immediately took the complainant to the Belhar
police station.
[25] The complainant waited for almost two hours at the Belhar police station
without any assistance or attention from any of the officers on duty. A nurse, who just
happened to be present at the police station at the time, raised the alarm about the
complainant's medical condition and demanded that the police officers immediately
take her to a hospital for attention. A detective from the Delft police station, Sergeant
Kellerman, readily as sisted the complainant by transporting her to the Karl Bremer
Hospital where she received urgent and lifesaving medical attention immediately
upon arrival.
upon arrival.
[26] Later in the day, the appellant had the audacity to visit the complainant in
hospital and beg ged her not to disclose to anyone that he had assaulted her. She
became agitated and anxious, and screamed out at him. He cowardly fled the
trauma room and the hospital. The complainant's condition was grave and life
threatening. She overheard a doctor inf orm her father that she may not survive the
night, and her survival beyond the Friday would be nothing short of a miracle. She
survived and remained hospitalised for two weeks before her discharge.
[27] The complainant left the hospital in a wheelchair a nd went to live with her
cousin who very helpfully attended to her daily care and needs. She literally had to
learn to speak again and because of the severe injuries to both her leg and hand,
she was required to attend physical therapy. Unfortunately, beca use of the injuries
she sustained, she subsequently lost a job she secured and was left homeless and
resorted to living on the streets. She reverted to her abuse of drugs again and at the
sentencing stage of the trial, the investigating officer traced he r to the Pollsmoor
Correctional Facility, as an awaiting trial detainee. There, he obtained a Victim
Impact Statement from her.
[28] As for the medical evidence, Dr Nondumiso Tukwayo recorded multiple
injuries, bruises and lacerations on the complainant 's body and had to refer her to
other doctors for further medical attention. Dr Tukwayo conducted a gynaecological
examination of the complainant as she had reported the oral, vaginal and anal rapes
by the appellant. She recorded no fresh injuries during t he gynaecological
examination, and some of the gynaecological injuries appeared to be older than 72
hours.
[29] According to Dr Barry Smith, the complainant sustained multiple injuries to her
body including a 7 cm irregular deep laceration on her scalp, with a depth of 3 to 5
cm and with subcutaneous fat tissue protruding. The injury passed beyond the
epidermis. Further injuries recorded were fractures to the complainant's finger on her
right hand, a fracture to the left wrist and a bone fracture of the l eft ankle. She was
tested for "crush syndrome" because of the trauma and shock to her cells that put
her at a very high risk of developing kidney failure. She was immediately put onto an
her at a very high risk of developing kidney failure. She was immediately put onto an
intravenous drip. The complainant's condition was regarded as life th reatening if left
untreated and without the emergency interventions by the medical staff of the Karl
Bremer Hospital, she may tragically have lost her life. She was also admitted for
neuro-observation due to the repeated loss of consciousness caused by the head
injury. The complainant's injuries were consistent with the brutal assault with the use
of a cricket bat.
[30] In his testimony in the court a quo, the appellant admitted that he assaulted
the complainant with a cricket bat all over her body and t hat in the process, its
handle broke. He claimed that he was " blindingly angry" because of what he thought
were the complainant's lies during their marriage and that he only realised after he
beat her, that she had sustained injuries. He claimed that he was ashamed of his
conduct but did not know how to deal with the situation. He would have taken her to
a clinic for medical attention but stated that because they had smoked "tik", therefore
they never managed to go to the clinic. Needless to state, the ap pellant's version
was rejected by the Regional Magistrate.
[31] In respect of the charges of rapes and sexual assault, the appellant denied
the version of the complainant. He claimed that they had consensual sexual
intercourse on all three instances even after having assaulted her. According to the
appellant, she would initiate sex to prevent him from continuing with his assault on
her. In cross examination, he conceded that in her injured state she may well have
felt scared and accepted that in reality she would not have wanted to have sex with
him, more so in her bloodied and injured state. He claimed that the sexual
encounters occurred after he beat her with the cricket bat and denied that he forced
her to eat her own flesh and drink the soiled bath water.
The Regional Court's judgment on sentence
[32] The Regional Magistrate rejected the appellant's version that the complainant
consented to sexual intercourse with him. She found that the complainant was
beaten into submission, repeatedly passed out due to the severity of her injuries and
could not, in such c ircumstances, have consented to sexual intercourse with him.
She found that the State had proved its case beyond reasonable doubt and
convicted the appellant on all counts.
[33] In her judgment on sentence, the Regional Magistrate expressed her shock at
[33] In her judgment on sentence, the Regional Magistrate expressed her shock at
the extent of the injuries inflicted upon the complainant. She went as far as to state
that the injuries remained embellished in her mind, that this instance of gender -
based violence was the worst that she had encountered in her entire career on the
bench. The Regional Magistrate emphasized the prevalence of gender -based
violence and its pernicious and pandemic proportions throughout the country. She
remarked that the appellant could hardly be held up as a role model for the young
men in his community.
[34] The Regional Magistrate took account of the objectives of criminal
punishment and the oft quoted triad of the appellant's personal circumstances, the
interests of the community and the serious nature of the offences. She moreover
highlighted the foll owing: the effect of the severe injuries sustained by the
complainant; the appellant's avowed intention to kill the complainant, his wife; the
humiliation and degradation she suffered at his hands when he forced her to eat her
own flesh and to drink filthy bath water; being raped three times after being
bludgeoned with a cricket bat in the attempt at murdering her, and the grotesque
sexual assault on the complainant.
[35] The Regional Court found no substantial and compelling circumstances had
been establ ished to warrant a deviation from the prescribed minimum sentence of
life imprisonment on each of the rape convictions.
The grounds of appeal against the sentences
[36] The appellant enjoyed an automatic right of appeal in law against the
sentences of life imprisonment. The grounds of appeal raised, amongst others, were
that the Regional Court had overemphasised the seriousness of the crime and the
element of deterrence; that the appellant had anger issues, used drugs and that the
sentence of life impr isonment induced a sense of shock. In addition, the appellant
also claimed that the Regional Magistrate had failed to consider that he had pleaded
guilty to the charge of attempted murder.
[37] I should point out that in February 2024, the Regional Magistrate dismissed
an application for leave to appeal the sentence on the attempted murder conviction.
At the hearing of the appeal, counsel for the appellant confirmed on his behalf that
At the hearing of the appeal, counsel for the appellant confirmed on his behalf that
he would not seek to petition the High Court in respect of the sentence of 15 years'
imprisonment imposed on the attempted murder conviction.
Developments during the appeal proceedings
[38] Due to the serious nature of the physical and sexual assaults inf licted upon
the complainant by the appellant and the abject failure of the police officers on duty
at Belhar police station to respond to both the scene and to subsequently facilitate
timeous and urgent medical attention for the complainant, the court on a ppeal (the
court) held a meeting with counsel for the respective parties in chambers. The court
also noted that the photographs of the victim's injuries and the scene of the
attempted murder and the rapes were not included in the appeal record. The court
was subsequently provided with the photograph album which graphically depicted
the visible extent of the injuries suffered by the complainant.4.
[39] The court raised its concern about the whereabouts of the complainant as it
was apparent from the trial r ecord that she had subsequently lost her employment
due to the trauma and injuries she suffered, appeared to be living on the streets, had
fallen back into drug use and ended up as a detainee in the awaiting trial section of
the Pollsmoor Correctional Faci lity. Furthermore, because of the lack of police
attention and assistance to the complainant at Belhar police station after her ordeal,
the disregard of the first neighbour to provide any assistance to the complainant, the
court therefore requested of the State Advocate to request the investigating officer,
Sgt Kellerman, to make every effort at tracing the complainant and to establish
whether she received any counselling or therapy as a result of the vicious crimes
committed against her.
[40] The Station Commander of Belhar police station as well as the relevant police
officer(s) on duty on 15 October 2019 were directed to attend the appeal hearing to
no more than listen to the court's serious concerns about their conduct and lack of
assistance to the complainant on the aforementioned date. The complainant's father
assistance to the complainant on the aforementioned date. The complainant's father
and the appellant's sister who so kindly assisted the complainant on the day were
also invited to attend the appeal hearing should they be inclined to do so. The court
did not c onsider it necessary for the complainant to attend the appeal proceedings
4 Exhibit 2
lest it reignite the trauma she already suffered. The appeal hearing was postponed
for compliance with the court's requests .
[41] The queries raised by the court were diligently followed up by counsel for the
State. She informed the court in writing that from information received, the
complainant had in fact received a few counselling sessions, was back living on the
street and that the neighbour who had initially refused to assis t her, had in the
meantime suffered a stroke and was unable to recall her interaction with the
complainant in October 2019. The minor children of the appellant and complainant
continued to be cared for and lived with their grandfather, the complainant's fa ther.
Further, the Station Commander of the Belhar police station at the time of the
incident had since retired, was untraceable and the identity of the nurse who so
helpfully alerted the Belhar police officers to the seriousness of complainant's injuries,
was unknown.
[42] On 5 December 2024 the appeal proceedings were attended by Sgt
Kellerman and Ms Petlele, a social worker attached to the office of the provincial
Director of Public Prosecutions (DPP) who was providing support to the complainant.
The complainant's fat her was also in attendance at court . The complainant, at her
own volition, attended the proceedings. Counsel for the State informed the court that
she did so out of her own choice and preference. Sergeant Juca, the Belhar shift
commander on duty on 15 October 2019 was absent due to illness.5 The court noted
those in attendance with appreciation, especially the complainant and her father.
[43] Counsel for the appellant subm itted that her client claimed that he had "anger
issues" which the appellant submitted the Regional Court failed to recognise or take
into account in its sentence judgment. She further contended that the court a quo
should have obtained probation and correctional supervision reports in respect of the
should have obtained probation and correctional supervision reports in respect of the
appellant for the purposes of sentence. She requested the court to simply refer the
matter back to the Regional Court to re -open sentencing proceedings so that the
reports may be obtained.
5 The State had subpoenaed Sgt Juca to attend the proceedings of 5 December 2024
[44] In response, the court pointed out that there was no formal application by the
appellant to this effect before it. Counsel for the State contended that the appeal
record was complete and that a determination of the appeal against sentence could
be made by the court on the record of the proceedings in the court a quo. She further
contended that the Regional Magistrate had dealt extensively with the triad of factors
to be considered during sentencing, so too the objectives of sentencing, the fact that
there were a complete lack of any substantial and compelling circumstances and that
there was no prospect on the facts of the matter, that the Regional Magistrate would
have imposed any lesser sentence if the aforementioned reports were obtained and
placed before her.
[45] In light of the request made by counsel for the appellant, the court requested
that she obtain full instructions directly from the appellant, in particular as to whether
he wished to formally apply to re -open his case on sentence by placing further
evidence before it in the appeal proceedings. The appeal was postponed to 20
March 2025. On resumption, counsel for the appellant informed the court that having
consulted with her client her instructions were that he did not wish to bring a
substantive application to place any further evidence before the court on appeal.
She submitted that the appeal should proceed on the record as provided and that
heads of argument on sentence, punctuated with the relevant case law, had already
been provided to the court.
[46] Sgt Juca and the current Station Commander at the Belhar police station,
were in attendance for the proceedings of 20 March 2025. So too, were the
complainant and her father at their own choice, and Ms. Petlele. In further oral
submissions to the court, d espite having conceded that there were in fact no
substantial and compelling circumstances to warrant a deviation from the prescribed
substantial and compelling circumstances to warrant a deviation from the prescribed
minimum sentence of life imprisonment, counsel for the appellant nonetheless
pressed that cumulatively considered, the app ellant's personal circumstances
amounted to compelling mitigating factors that should have swayed the trial court to
deviate from the sentences of life imprisonment. On appeal, the court was requested
to consider that the appellant's admission that his actions were wrongful as set out in
his plea of guilty on the attempted murder charge was a significant mitigating factor
and therefore a measure of mercy should have favoured him in the sentencing
process.
[47] Counsel for the State referred the court to he r comprehensive heads of
argument on sentence on appeal and reiterated that there were simply no substantial
and compelling circumstances established in any form or substance by the appellant.
She emphasised the brutality and horror of the attack on the co mplainant by her
husband, the father of their minor children. She also pointed to the continued trauma
suffered by the complainant especially on the rape and sexual assault incidents.
[48] Counsel for the State further informed the court that the office of the DPP was
more than amenable to provide training to the police officers at the Belhar police
station on how to deal with victims of gender -based violence and rape, especially so
since the evidence in the court a quo indicated that vulnerable persons s uch as the
complainant were seriously prejudiced and placed at risk by the conduct and lack of
immediate attention and medical assistance by the police officers on duty.
[49] The court was also informed that the complainant had since returned to live
with her father and the children and that they were all undergoing counselling at
FAMSA. Counsel for the State requested of the court to issue out appropriate
directives to the effect that the Belhar police officers receive the appropriate training
as indic ated, that the office of the DPP together with the Commission for Gender
Equality be involved in such training and that an enquiry be conducted into the failure
of the Belhar police officers that resulted in the complainant having to wait for two
hours at the police station without any assistance or medical attention, until the
wholly fortuitous and timely intervention of the unknown nurse and the prompt
assistance of Sgt Kellerman.
Evaluation of the merits of the appeal on sentence
[50] In the recent decision of Kasongo v S 6, Henney J (Cloete J concurring)
stated the following about the extent of an appeal court's interference in a sentence
imposed by a trial court:
“[39] It is trite that in an appeal against sentence that the princ iple that should
guide the appeal court is that punishment is pre -eminently a matter for the
discretion of the trial court, and a court of appeal should be slow to interfere
with such discretion. Furthermore, that a court of appeal can only interfere
with a sentence imposed by the trial court under the following circumstances.
Firstly, where there is a material misdirection by the trial court that vitiates the
exercise of that discretion. Secondly, where there is a disparity between the
sentence that was im posed by the trial court and that which the court of
appeal would have imposed had it been the trial court, to the extent that such
a sentence can be characterized as shocking, startling or disturbingly
inappropriate."
[51] I align myself with these wel l-established principles. In the event that it is
found that the trial court exercised its sentencing discretion properly, there can be no
room for interference - in its decision. The appeal against the sentence of life
imprisonment is considered under the headings indicated below
The appellant's personal circumstances
[52] The appellant's personal circumstances were placed before the court a quo in
an ex parte address by his counsel. At the time of sentence, the appellant was 40
years old, the father of two minor girls whom he had with the complainant and two
adult children from a previous relationship. He was married to the complainant but
separated for two years prior to th e commission of the crimes. His adult children
lived with him prior to his conviction in the matter.
[53] As for his education, the appellant progressed to Grade 11 due to financial
constraints in his family at the time. He was required to seek work at a young age.
constraints in his family at the time. He was required to seek work at a young age.
6 [2025] ZAWCHC 124 - Henney J with Cloete J concurring, Nziweni J dissenting
He was employed as a driving school instructor and earned between R8000 to R10
000 per month. He regularly used drugs such as tik, cannabis and mandrax and had
used drugs at the time that he committed the offences. He had no history of any
physical illnesses or disabilities. He resided permanently in Belhar albeit that he was
not the owner of the property. The appellant had no previous convictions. The
Regional Court was also informed that he was in a romantic relationship with a new
partner though the details of the relationship were not provided during the trial.
[54] From the judgment on sentence, it is apparent that the Regional Magistrate
had fully taken account of the appellant's personal circumstances when weighing up
both the mitigatin g and aggravating factors. So too she took into account the
interests of the community and the seriousness of the offences, in order to have
reached an appropriate and just sentence. It bears mentioning that the sentence
imposed should not be disproportion ate to the offender, the crime and the interests
of society.
The appellant's alleged anger problem
[55] At the trial, the appellant elected for his personal circumstances to be placed
on record through the ex parte address by his legal representative r ather than him
testifying under oath in mitigation. His legal representative also addressed the court
on aspects related to remorse, rehabilitation, the triad of factors in sentencing and
the time he spent in custody awaiting trial. 7 The appellant's drug abuse was also
addressed.
[56] The only reference to the appellant's actions when committing the crimes was
that he believed that his marriage was a lie and that he felt that he had a right to lift
his hands to the complainant. Nowhere in the ex parte address in the co urt a quo
was any reference made to the effect of an "anger problem" on the appellant when
committing the offences. It bears mentioning that the appellant testified that he had
committing the offences. It bears mentioning that the appellant testified that he had
7 According to the record of the court a quo, the charge was previou sly withdrawn.
The appellant was not in custody during the trial proceedings which led to his
conviction and sentence.
become "blindingly angry" and thought that he was entitled to lift his hands ag ainst
his wife. Anger, however, as it manifested itself in a fit of rage could not, in the
circumstances, be any justification for his cruel and calculated attack on the
complainant. Moreover, his anger could certainly not be justification for the repeated
rape of the complainant and then followed by the grotesque sexual assault on her.
His conduct was nothing short of an intentional and wilful abuse of his power over
the complainant.
[57] If indeed the appellant suffered from an anger management problem, it was
incumbent on his legal representative to have placed such information and reports
before the court a quo during the proceedings or to have requested a postponement
to obtain the necessary reports. It was simply not done. On appeal, this court
afforded the appellant the opportunity of applying to re -open his case to obtain a
probation officer's report, but he spurned the opportunity to do so and elected to
proceed with the appeal against his sentence. The apparent reference to anger
management issues by the appellant appeared to be no more than opportunistic and
a detraction from his abhorrent conduct towards the complainant. It was nothing but
a ruse to secure a lesser sentence.
[58] Having considered the judgment on sentence , the blame which the appellant
sought to attribute to the Regional Magistrate for havi ng not investigated his anger
issues and not calling for pre-sentence reports was all together misplaced . The stark
facts of the incidents were squarely placed before the Regional Magistrate and she
properly rejected the appellant's version that because h e allegedly lost his temper,
he believed he was entitled to attack his wife whom he so gratuitously accused of
infidelity by assaulting her in the most gruesome manner. A loss of temper in the
circumstances must be considered to have been an aggravating factor. By no means
circumstances must be considered to have been an aggravating factor. By no means
could it have diminished the appellant's blameworthiness and the unlawfulness of his
conduct. For all the reasons set out above, this ground of appeal must fail.
The appellant's admission of the assault on the complainant
[59] The Reg ional Court was criticized for placing no weight on the appellant's
admission that what he did was wrong. Firstly, it must be emphasized that the
appellant admitted wrongfulness only in respect of Count 1, the attempted murder.
He denied that he raped the complainant and sexually assaulted her. At all times in
the court a quo he maintained that the sexual acts were consensual.
[60] Secondly, the admission of the complainant's grievous assault by the
appellant with the cricket bat must be seen in the conte xt of the overwhelming
evidence of the complainant's account of the attempted murder and the medical
evidence of the injuries she sustained. The level of violence and force with which the
appellant beat the complainant with the cricket bat was reflected in the multiple
injuries she sustained. Perhaps it is appropriate to be reminded of her injuries 8, as
follows:
Multiple small, scabbed wounds all over her body;
Extensive bruising on arms and forearms, left buttock and thigh, right thigh,
left calf, both ankles and face;
10 cm abrasion on left arm;
1.5cm wound on anterior right calf;
Linear bruising on left hand;
Tender left wrist;
2 x 1cm superficial lacerations to right hand (fifth digit);
3cm x 2cm superficial scabbed abrasion posterior right thigh;
6cm x 2cm superficial scabbed abrasion posterior right thigh;
7cm irregular deep laceration on posterior scalp;
Peri-orbital bruising;
Laceration on upper lip; and
Swollen, tender bruised left ankle.
[61] In my view, the appellant had little option but to admit that he caused the
injuries to the complainant. It was telling though, that he stopped s hort of admitting
that he intended to kill her despite his cruel utterances to her after the assaults that
he would keep a look out for a hole to bury her in. Moreover, the appellant was not
charged with assault with intent to do grievous bodily harm but t hat of attempted
8 J88 - note, copy in record does not contain an Exhibit number.
murder, by hitting her all over her body with a cricket bat. The photographs of the
victim in hospital after the attack were graphic evidence of the injuries that she
sustained during the appellant's attempt at murdering her. More so, were the images
of the scene in the Belhar house, depicting blood -stained pillows, bed linen and
clothes in the bathroom.
[62] Thus, with all the evidence stacked against him, the appellant simply had no
place to hide. The Regional Magistrate held the same vi ew in finding in her judgment
on sentence that the appellant had no choice but to admit to his assault of the
complainant because of the overwhelming evidence against him in respect of
Count 1. She found that:
"There was nobody else, it was just him. Y ou cannot lie or you cannot make
up a story if you just look at the pictures. There is no way - there was no way
else but to say, yes, I am the person who assaulted her. "9
[63] With that in mind, I hold the view that the Regional Magistrate saw the
admission regarding the assault for what it really was. I therefore do not agree that
the Regional Magistrate did not attribute any weight to the admission that the
appellant assaulted the complainant with the cricket bat all over her body and
therefore this ground of appeal must also fail.
Seriousness of crimes and the element of deterrence
[64] The actions of the appellant were brutal, cruel, and wholly inhumane. The
complainant came to the home of the appellant, her estranged husband, sought
refuge and a safe haven after leaving the rehabilitation program and where he
agreed to provide her with accommodation and praised her for seeking to improve
her life. He expressed his support for and led her to believe that she was safe with
him and thus lulled her into a false state of security. All that was shattered when he
began with a torrid campai gn of beating her with the cricket bat all over her body,
9 Sentence judgment, p186 (page 11 of the judgment)
tormented her with false accusations, bashed her head against the floor and
repeatedly raped and then sexually assaulted her .
[65] These actions were of itself so serious that it rendered the co mplainant
defenseless and at a demonstrable physical disadvantage. Her ankle was injured,
her finger hung loosely (as she explained), her scalp had a deep laceration which
caused subcutaneous fat tissue to be exposed, causing her to " cut out " or lose
consciousness. The attempt at murdering his wife was not enough for the appellant
in exercising control over the complainant. When she regained consciousness, she
found him half naked and he forced his penis into her mouth. He thereafter raped her
both vaginally, then anally but did not stop there as thereafter, he sexually violated
her by ejaculating all over her face.
[66] I have yet to come across more brutal, callous and grotesque conduct against
a de fenseless woman in any matter. The actions of the appellant displayed no
regard for the life of his wife, her bodily integrity, dignity and privacy. He brought and
used drugs in the house despite the complainant's efforts at rehabilitation, then
proceeded to exert both physical and harsh control over her through repeated
assaults with a cricket bat, forced her to eat her own flesh, drink soiled bath water
and then sexually violated her person multiple times.
[67] These crimes are undoubtedly one of the wo rst kind of physical and sexual
abuse which this court has encountered. So too, the trial court. In fact, in her
judgment on sentence, the Regional Magistrate echoed the sentiment expressed by
the prosecutor in argument on aggravation that the violent cond uct of the appellant,
committed with such brutality, was monstrous. In context, this view expressed by the
Regional Magistrate so forcefully could hardly be construed to be a misdirection as
counsel for the appellant sought to suggest on appeal.
[68] In my view, the Regional Magistrate was correct in emphasizing the
[68] In my view, the Regional Magistrate was correct in emphasizing the
seriousness of the offences. She correctly took account of the fact that this was an
incident of severe gender-based violence perpetrated by a husband against his wife.
She also recognized a nd appreciated that gender -based violence offences had
reached pandemic proportions in South Africa without abating in the least. As
recently as 2023, the Supreme Court of Appeal in Maila v S 10 signalled a reminder
about the seriousness and prevalence of rapes and gender -based violence crimes
when it stated the following:
"[57] Rape of women and children is rampant in South Africa. It has reached
alarming proportions despite the heavy sentences which courts impose. South
Africa has one of the highest rape statistics in the world, even higher than
some countries at war. The country's annual police crime statistics confirms
this: in 2019/2020, there were 42 289 rapes reported as well as 7 749 sexual
assaults. This translates into about 115 rapes per day.11" (footnote included)
[69] In Chapman v S12, Mohamed CJ described rape as " a very serious offence,
constituting as it does, a humiliating, degrading and brutal invasion of the privacy,
dignity, and person of the victim ." Some ten years later, the Constitutional Court in
Ndlovu v S13 commented that rape is "a deeply destructive and dehumanising act."
[70] The appellant's counsel also argued that the Regional Court overemphasized
the element of deterrence. I respectfully disagree. In a matter as serious as this, the
rehabilitation of the offender takes on a less significant role to that of deterrence and
retribution, in the determination of an appropriate sentence. 14 . The Regional
Magistrate gave due regard to these elements and properly found, in view of the
circumstances and the prevalence of gender -based violence offences, that the
sentence imposed would serve to deter the appellant and other like -minded persons
from offending again.
[71] As for rehabilitation, a submission made on appeal on behalf of the appellant
was that he was already attending various programs in the Correctional Facility. That
10 [2023] ZASCA 3
11 Amada Gouws 'Rape is endemic in South Africa. Why the ANC government keeps
missing the mark' 9 August 2022, Mail & Guardian, https:/lmg.co.za/opinion/2022-08-
missing the mark' 9 August 2022, Mail & Guardian, https:/lmg.co.za/opinion/2022-08-
09-rape-is-endemic-in-south-africa why-the-anc-government-keeps-missing-the-
mark/.
12 1997 (2) SACR (SCA) 5b
13 [2017] ZACC 19 para [50]
14 S v Swart 2004 (2) SA 370 (A) para [12]
notwithstanding, his actions and the serious offences he committed, does not
convince us that rehabilitation as an objective of sentencing should be elevated
above the elements of deterrence and retribution.
A lack of remorse
[72] The appellant's crimes have had a horrific effect on the complainant,
physically, emotionally and financially. He deliberately misled the Regional Court in a
vain attempt at convincing that court that the complainant, in her severely injured and
vulnerable state, consented to having sexual intercourse with him on three instances.
He also denied that he sexually assaulted her. His utter dishonesty and attempts at
controlling the complainant persisted even when he eventually found her in hospital,
demanding a guarantee that she would not implicate him in the attempted murder
and sexual offences that he committed against her.
[73] The appellant simply did not express any regret for his conduct. As stated
earlier, he only admitted to assaulting the compla inant because of the overwhelming
evidence against him, and certainly not because he had an attack of conscience at
her abused and injured plight 15. There was simply no regret nor remorse on his part
nor had he taken the court a quo into his confidence regarding the rapes and sexual
offence. He rather sought to make out that the complainant had initiated sexual
relations with him, and this after he had beaten her all over her body with a cricket
bat to the extent that she intermittently lost consciousness d ue to the deep head
wound.
[74] In my view, the Regional Magistrate was correct when she stated that the
appellant showed no remorse for his actions and conduct. The issue of remorse,
therefore, does no t feature in the circumstances of the appellant in this matter, nor
can I find any misdirection in the findings of the Regional Court in this regard.
The claim that the sentence induced shock
15 See S v Matyityi [201OJ ZASCA 127 para [13]
[75] The last ground of appeal is that the sentence of life i mprisonment induced a
sense of shock. It bears mentioning that there were three counts of rape, and in
respect of each, life imprisonment was the prescribed sentence as the complainant
was raped more than once. As mentioned, the Regional Court took the rape offences
together with the sexual assault for the purposes of sentence and imposed life
imprisonment. The sentence of 15 years' imprisonment for the attempted murder
thus runs concurrently with life imprisonment.
[76] I accept that life imprisonment, on the very disturbing facts and brutal nature
of these crimes committed against the complainant, does not induce any sense of
shock. It would rather have been shocking had the Regional Magistrate not imposed
life imprisonment for the offences and deviate d from the prescribed minimum
sentence of life imprisonment. To elaborate, the legislature expect of the courts to
implement the minimum sentence regime for an offender who so brutally and
repeatedly violated his victim sexually and so to send a strong mes sage that such
callous and reprehensible conduct should not be countenanced.
[77] Clearly, the complainant's rights to dignity, equality and privacy were seriously
invaded, and the Regional Magistrate was all too aware of this when she sentenced
the appellant. He left his wife to die and very crudely said to her that he intended to
find a hole to bury her in. His pathetic excuse as to why he failed to take her to
hospital or a clinic, as she begged him to do more than once, was indicative of his
callous disregard for her life and safety. The complainant's desperate pleas for
painkillers fell on deaf ears. Thus, the appellant's failure to assist the complainant by
refusing to take her to a hospital or clinic was both calculated and deliberate, and
meant to protect him from being caught out and identified as the perpetrator of the
crimes. Ultimately, the Regional Magistrate cannot be faulted for her finding that
crimes. Ultimately, the Regional Magistrate cannot be faulted for her finding that
there existed no mitigating factors in the appellant's favour.
[78] The complainant gave a harrowing account of the impact of the appellant's
assaults and treatment of her in the victim impac t statement. She stated that as a
result of the trauma, she now harboured feelings of claustrophobia. She has a fear of
confrontation, she questions her life and death experiences, she is embarrassed
about her scars and nauseated at the thought of having h ad her own flesh in her
mouth. She is afraid of the dark and cannot live a normal life because of her near
death experience and does not want to look at herself in the mirror.
[79] The physical after -effects of the crimes perpetrated against her are the
constant pains in her hands resulting in the inability to hold onto and grasp objects.
She therefore has an inability to attend to daily chores. She falls over herself, has
begun to stutter when anxious and her scars are daily reminders of her experience at
the hands of the appellant. Because of the trauma, she lost her job and ended up on
the street.
[80] The complainant's horrific experience and effects of the rapes are aptly
described with reference to the judgment of S v C16:
"Rape is regarded by society as one of the most heinous of crimes, and rightly
so. A rapist does not murder his victim - he murders her self -respect and
destroys her feeling of physical and mental integrity and security. His
monstrous deeds thereafter after haunts his victim and subjects her to mental
torment for the rest of her life - a fate often worse than loss of life".
[81] When regard is had to the judgment on sentence , I am satisfied that the
Regional Magistrate weighed up all the elements of sentencing, and in her
assessment, found no substantial and compelling reasons to deviate from life
imprisonment. In fact, I would venture to state that she displayed an element of
mercy when sentencing the appellant to life imprisonment, havin g taken the rapes
and sexual assault offences together for the purposes of sentencing.
[82] I am accordingly satisfied that the sentence imposed was indeed just and
balanced and does not induce a sense of shock. In the result, I propose to dismiss
the appeal against sentence and confirm the sentence of life imprisonment. Before
concluding, there are a few aspects that require attention, which I attend to below.
16 1996 (2) SACR 181 at 186 D-E
The post -trial condition of the complainant, the neighbours' assistance and
police officers stationed at Belhar police station
[83] We have, to an extent, stepped beyond the traditional role as the appeal court
because of the horror of the appellant's ac tions and the abject failure of police
assistance when it was so desperately needed when the complainant was initially
brought to the Belhar police station. In our view, the complainant, as the victim of
such heinous crimes, was entitled to prompt assistan ce and the facilitation of urgent
medical attention by the police officers stationed at the Belhar police station on the
day in question. The evidence in the court a quo was to the effect that had the
complainant not been taken to the hospital in time and received intravenous fluids,
she may have lost her life.
[84] In fact, had it not been for the most helpful yet firm intervention of the
unknown nurse who fortuitously raised the alarm at the Belhar police station on the
day, and the swift action of the investigating officer Sgt Kellerman in transporting her
to the Karl Bremer Hospital where she received the emergency treatment, the
appellant may well have faced a charge of murder in the court a quo. Moreover, her
minor children would have tragically lost their mother at the hands of their father.
[85] The court was also concerned as to whether the complainant had received
the necessary counselling for the trauma she suffered. Far too often victims of crime
and women and children in particular, regretful ly fall through the cracks of an
overburdened criminal justice system when it comes to post -trial attention and
ongoing counselling. We were gratified to be informed through the diligence of
counsel for the State, that the complainant had received some cou nselling.
Regretfully, she found herself back on the streets having again succumbed to her
drug addiction. Thankfully the office of the DPP also stepped in to provide assistance
drug addiction. Thankfully the office of the DPP also stepped in to provide assistance
through the helpful social work of Ms Petlele. The court commends all of them for
their considerate assistance to the complainant.
[86] The complainant, of her own volition, expressed to the court that she hoped
that this matter may help other victims of gender -based violence and rape, as she
wished her story and experience to be h eard. To the extent that we have taken this
unusual approach to the matter, we hope that this judgment sends out a strong
message that rape and gratuitous violence of the nature that the complainant faced ,
as do so many other women and children, are not taken lightly by the courts .
[87] This brings me to the surrounding community and neighbours whose conduct
featured in the trial. The first neighbour, who notwithstanding a desperate plea from
a visibly bleeding and bludgeoned complainant who begged her for help, simply
refused to assist her, explaining that she did not wish to become involved in what
she regarded to be no more than a domestic squabble. Such attitudes may not be
isolated and given the high and pervasive levels of violence in the Western C ape,
some community members fear for their lives when aiding injured persons. Needless
to state, the broader fight against gender -based violence is compromised by such
complex realities. Moreover, the real fears harboured by neighbours and other
community members and the realty of violence should not be underestimated nor
ignored.
[88] Had it not been for the second neighbour, Ms v[...] d[...] M[...] and the
complainant's father, the complainant may have had to wait longer or encountered
the appellant again on his return to the house. The court likewise commends their
timeous assistance to the complainant, especially the complainant's father for
attending and displaying a serious interest in the appeal. More so, for his welfare,
care and consideration for his grandchildren and the complainant.
[89] But for the unknown nurse and Sgt Kellerman of the Delft investigation unit,
the complainant may have died, such was the seriousness of the "crush syndrome"
suffered by her and explained by Dr Smith in his tes timony in the trial. Sgt Kellerman
is commended for his efforts, and we acknowledge his dutiful assistance rendered to
the complainant in taking her to the Karl Bremer Hospital. So too, he contributed to
the complainant in taking her to the Karl Bremer Hospital. So too, he contributed to
saving her life. Additionally, Sgt Kellerman also di ligently carried out the court's
requests and directives during the appeal. Likewise, we acknowledge the role and
commend the unidentified nurse who raised the alarm at the police station and saved
the complainant's life. Equally so, the court commends the medical staff at the Karl
Bremer Hospital for having provided lifesaving medical treatment and assistance to
the complainant.
[90] The same, however, could not be said of the Belhar police officers on duty on
the day, who appeared to have been oblivious to the serious, yet clearly visible
injuries sustained by the complainant. She testified in the court a quo that she had
waited for two hours for some attention from the police officers on duty at the police
station. Accordingly, we request that these circumstances be fully investigated and
that appropriate training be provided to members of Belhar police station.
[91] Furthermore, we also extend our appreciation to Ms Petlele for assisting the
complainant and her family on what is hopefully a road to recovery from their
traumatic experience. Our appreciation is also extended to the appellant's counsel,
Ms Kuun, and Legal Aid Sout h Africa for both ably and professionally representing
the appellant for which the court was all too aware, was a difficult brief given the
harrowing facts which unfolded in the matter.
[92] Last but by no means least, this court extends its sincere grat itude to counsel
for the State, Ms Cecil, the way she prosecuted her brief and so willingly and
diligently attended to its directives and requests. The genuine concern which she so
graciously and professionally displayed towards the complainant, did not go
unnoticed. In conclusion, the efforts of both counsel, beyond the call of duty, are
commended in what was one of the most brutal, and indeed, one of so many
instances of gender based violence and sexual offences against women.
Order
[93] In the result, I would grant the following order:
a) The appeal against sentence on counts 2 to 5, is dismissed,
b) The sentence of life imprisonment on counts 2 to 5 (taken together for
sentencing purposes) is confirmed.
c) The current Station Commander of Belha r police station (the police
station) is requested to investigate the circumstances and reasons why
the complainant, Ms. B v R, was not promptly assisted on or about 15
October 2019.
d) The Station Commander is requested to provide a written report on the
outcome of such investigation to the office of the Director of Public
Prosecutions (DPP), Western Cape, for its consideration and records.
e) It is recommended that the DPP, Western Cape, provides training to the
personnel and police officers at Belhar police station on the proper and
expeditious handling of rape, sexual offences and gender -based
violence offences, and the treatment of victims and complainants of such
offences. The DPP may, if it deems necessary, enlist the assistance of
the Commission for Gender Equality in respect of such training.
f) The respondent's counsel is requested to:
i) provide copies of this judgment to the Commission for Gender
Equality (Western Cape), the Station Commander of Belhar police
station, and Sergeant Kellerman of the Delft police investigative unit;
and
ii) to conduct a follow -up with FAMSA regarding tra uma counselling
and therapeutic support rendered to the complainant, her father
and her minor children.
M PANGARKER
JUDGE OF THE HIGH COURT
I agree and it is so ordered,
V C SALDANHA
JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Ms S Kuun
Instructed by: Legal Aid South Africa
For Respondent: Adv E Cecil
Instructed by: Director of Public Prosecutions
Cape Town