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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: A55/2023

In the matter between:

E[...] M[...] Appellant

and

THE STATE Respondent

Coram: Van Leeve, AJ (Ndita, J concurring)
Heard on: 23 May 2025
Delivered on: 18 July 2025


JUDGMENT


Van Leeve, AJ (Ndita, concurring)

INTRODUCTION

[1] The Appellant was charged and convicted in the Caledon Regional Court of the
following charges:

Count 1: Rape
Count 2: Rape

The allegations on the first count were that during 2019, the Appellant unlawfully and
intentionally had sexual intercourse with the first complainant, AGK, a minor girl child
born on 18 February 2019, by inserting his penis inside her vagina without her consent.
Likewise on the second count the State alleged that the Appellant had sexual
intercourse with LD, also a minor girl child born on 6 April 2009, by in serting his penis
inside her vagina without her consent. The complainants would thus have been 12 and
10 years old respectively when the offences were allegedly committed

[2] The appellant pleaded not guilty to both charges, and after evidence was led, he
was convicted on both counts. The convictions brought the matters within the ambit of
Section 5 1 of Act 105 of 1997 , Schedule 2 of Part 1 , prescribing a sentence of life
imprisonment unless the court finds substantial and compelling circumstances justifyi ng
a departure from the aforesaid sentence. The court a quo, having found no substantial
and compelling circumstances justifying a departure from the ordained minimum
sentences, imposed a sentence of life imprisonment on each count and both sentences
were ordered to run concurrently. He now appeals against both conviction and sentence
in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977 (“the CPA”)
(automatic appeal).

The point in limine

[3] The Appellant raised a point in limine to the effect that this matter is not ripe for a
hearing as the record of the proceedings is incomplete, thus no determination can be

made on the merits. It is common cause that several words in the record are indistinct
or unclear. When t he court a quo was requested to assist with the reconstruction of the
record, it simply wrote the missing words into the record, something that is
impermissible. As set out in S v Zenzile 2009 (2) SACR 407 (WCC), the magistrate
should have reconstructed the record in the presence of all the relevant parties. It is a
fact that the presiding officer in this matter has since retired.

[4] Counsel for the Respondent, Advocate N Ajam , contended that the record of
appeal, as it stands is sufficien t for a proper adjudication of the matter as enough has
been transcribed to understand the evidence. Counsel for the Appellant, Advocate de
Jongh argued that the record is inadequate for the determination of this appeal.

[5] In S Chabedi 2005(1) SACR 415 (SCA) Brand JA, restated the principles
applicable to incomplete records of proceedings thus:

“[5] On appeal, the record of the proceedings in the trial court is of cardinal
importance. After all, that record forms the whole basis of the rehearing by the
Court of appeal. If the record in inadequate for a proper consideration of the
appeal, it will, as a rule, lead to the conviction and sentence being set aside.
However, the requirement is that the record must be adequate for proper
consideration of the appeal; not that it must be a perfect recordal of everything
that was said at the trial. As has been pointed out in previous cases, records of
proceedings are often still kept by hand, in which event a verbatim record is
impossible (see, eg, S v Collier 1976(2) SA 378 ( C) at 379A -D and S V S 1995
(2) SACR 420 (T) at 423 b – f).
[6] The question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be answered in the abstract. It
depends, inter alia, on the nature of the defects in the particular record and on
the nature of the issues to be decided on appeal.”

[6] It must be stated from the outset that in the matter at hand, i t is not impossible to
discern the evidence as the summary of the evidence by the magistrate (which has not
been assailed by the Appellant) gives a full unde rstanding of all the issues pertinent to
the determination of this appeal on both the merits and sentence . To this end, the
remarks of the Constitutional Court in S v Schoombee and Another 2017 (2) SACR 1
(CC) at para 29 are apposite.

“Where the record of an appeal on an imperfect record will not prejudice the
Appellants, their convictions need not be set aside solely on the basis of an error
or omission in the record or an improper construction. This principle is practical
and sensible and just.”

[7] It is my judgment that in this matter, the record, although imperfect, is sufficient
for the purposes of a proper adjudication of this appeal on both the conviction and
sentence. Thus, it is not necessary to remit the matter to the magistra te for a proper
construction of the record.

FACTS

[8] The incident s occurred at the home of Ms A[...], the grandmother of the
complainant AGK during 2019. AGK testified about an occasion when she was sleeping
next to her grandmother. Her grandmother was asleep and drunk. The Appellant closed
her mouth, pulled down her tights and panties, pulled down his pants to his knees and
inserted his penis into her vagina. She testified further that he was interrupted when her
aunt knocked at her door. The Appellant got off her and gave her money before opening
the door for her aunt. On another occasion, she and LD were asleep on the couch. She
heard LD calling her for help . At that point, LD was in the Appellant’s bedroom. She
went to the bedroom and found the Appellant on top of LD. When she told him to stop,
he chased her away. LD testified that someone had picked her up while she was asleep
on the couch with AGK. She rea lised it was the Appellant when he took her to his

on the couch with AGK. She rea lised it was the Appellant when he took her to his
bedroom. In his bedroom he pulled down her tights, panties and inserted his penis into

her vagina. She called out to AGK who came to the bedroom who chased her away but
later let LD go. She went back to th e couch to sleep. She told A[...] A[...] what he did to
her.

[9] The two complainants, AGK and LD, were 12 and 10 years old at the time of the
incidents. As a result, they were unable to consent to sexual intercourse. The Appellant
pleaded not guilty and his defence was that of a bare denial.

[10] Both children did not tell anybody about these happenings occurring at the
grandmother’s house.

[11] The story came to light after LD became ill and was diagnosed with syphilis and
tested positive for HIV. After that , she reported what had happened to her to Warrant
Officer Du Toit. Warrant Officer Du Toit had an interview with AGK, who confirmed that
LD had slept over at her house afte r being locked out of her own home. She confirmed
that the accused was the only person who had sexual intercourse with them and that he
had given them R50.00 each.

[12] AGK told the court that her grandmother was drunk on one of the occasions. LD
told the court that the adults were at the tavern and that is why she went to sleep at
AGK’s home.

[13] They were often alone in the house with t he accused. The medical evidence for
sexual assault on both complainants was positive.

[14] Ironically the Appellant tested positive for both syphilis and HIV, which are both
sexually transmitted diseases.

The Grounds of Appeal

[15] As discernible from the notice appeal, the Appellant assails the findings of the
magistrate, more particularly the credibility findings made in favour of the complainants
to the effect that they were honest, reliable and credible witnesses. In a nutshell, they
are the following:

15.1 That the magistrate erred in not taking into proper account the evidence of
Dr Scholtz to the effect that sexual intercourse must have happened
repeatedly, which is contradictory to the evidence of LD to the effect that it
took place only once. Moreover, the evidence of Jacolien Windvogel
indicating that LD was hesitant to talk and just kept quiet should have
been properly considered.
15.2 The magistrate erred in not criticizing the complainants for not immediately
reporting the rape incidents.
15.3 The court erred in finding that it could understand the children’s reluctance
to open up about the incident.
15.4 The magistrate erred in findin g that the version of the accused is highly
improbable and therefore rejected his evidence as not being reasonably
possibly true.

[16] With regard to sentence, the Appellant raises several grounds on the basis of
which it attacks the trail court for not h aving found no substantial and compelling
reasons to depart from the life sentence ordained by the legislature. These are the
following:

16.1 The magistrate paid very little regard to the Appellant’s personal
circumstances or under-emphasised them.
16.2 The fact that the Appellant has no relevant previous convictions should
have counted in his favour.
16.3 The sentence imposed is overly harsh and over-emphasises retribution.
16.4 The Appellant spent two years and eight months in custody awaiting trial
and received no credit from the Department of Correctional Services.

Analysis

[17] It is settled law that in a matter such as the present, this court’ s powers to
interfere on appeal with the findings of fact of the trial court are limited in the absence of
demonstratable and material misdirection. Where there is no misdirection on fact, the
presumption is that its findings are correct, and the appellate court will only interfere
with them if it is convinced that they are wrong. This court is also mindful of the fact that
in R v Dhlumayo and another 1948 (2) SA 677 (A) it was held that a court on appeal
should not anxiously seek to discover reasons advers e to the conclusions of the trial
court.

[18] I deem it expedient to deal with the ground of appeal that states that the
complainants ought to have been criticized for not reporting the rape incidents. This
contention is unfortunate because in Monageng v The State [5900/06) [2008] ZASCA
129 Maya JA (as she then was) aptly remarks as follows on this issue:

“[23] Much was made by the Appellant’s counsel of the complainant’ s ability to
act normally after the rape and her delayed in reporting it. It has been firmly
established in a number of studies on the impact of violence, including rape,
against women that victims display individualised emotional responses to the
assault. Some of the immediate effects are frozen fright or cognitive dissociation,
shock numbness and disbelief. It therefore is not unusual for a victim to display a
façade of normality.
[24] It is further widely accepted that there are many factors which may in hibit
a rape victim from disclosing the assault immediately. Children who have been
sexually abused, especially by a family member, often do not disclose their
abuse and those who ultimately do may wait for long periods and even until
adulthood for fear of retribution, feelings of complicity, embarrassment, guilt,
shame and other social and familial consequences of disclosure. Significantly,
the newly passes Criminal Law (Sexual Offences and Related Matters)

Amendment Act 32 of 2007 provides, in s 59, that ‘in criminal proceedings
involving the commission of a sexual offence, the court may not draw any
inference only from the length of any delay between the alleged commission of
the offence and the reporting thereof’. Raising a hue and cry and collapsing in a
trembling and sobbing heap is not the benchmark for determining whether or not
a woman had been raped. There was thus nothing unusual about the
complainant’s behaviour and her explanation for not immediately reporting the
Appellant is plausible”

Likewise, that Dr Scholts was of the opinion that sexual intercourse happe ned more
than once has no bearing on the determination of whether or the Appellant violated.

[19] With regard to the complainants being single witnesses and child witnesses, a
double cautionary rule must be applied.

[20] In terms of section 208 of the C PA states “an accused can be convicted of any
offence on the single evidence of a competent witness ”. It is however a well-established
judicial principle that the evidence of a single witness should be approached with
caution, his or her merits as a witness being weighed against factors which militate
against his or her credibility.

[21] A double cautionary rule is applicable, because not only are the complainants’
single witnesses, but they are also child witnesses. I refer to the case of Woji v Santam
Insurance Co Ltd 1981 (1) SA 1021 (A) 1028 B-D, “That their 2 children were speaking
of an incident which had happened five years before and the question must be asked
whether their capacity of recollection may not be wholly unreliable. I think not. It is well
known that children often have a vivid memory of an unusual incident. What happened
to these two complainants is most unusual and this court has no doubt that they
remembered the incidents.”

[22] The court a quo correctly valuated the evidence of both complainants bearing in
mind that they are single witnesses and child witnesses.

[23] The details of what took place are completely clear and concise.

[24] Counsel for the Appellant raises contradic tions of what they perceive to be
contradictions in the evidence of the two complainants. With regard to when and if they
had told AGK’s grandmother can hardly be described as a contradiction since “the cat
was let out of the bag” only once LD became ill. Whether or not AGK saw the Appellant
penetrating LD or not is also not considered by this court as important. What she
testified was that the Appellant was on top of LD.

[25] The Appellant’s version is a bare denial. He attempted to blame a Randall and a
Tyrone, thereby saying that the complainants were both sexually active and he is not
responsible for what had happened to the complainants.

[26] The learned Magistrate provided a well -reasoned judgment, taking into account
the cautionary rule applicable. I refer to the well -known decision of S v Sauls 1981(3)
SA 172 (A) at 180G-H where Human J said the following:

“The exercise of caution must not be allowed to displace the exercise of comm on
sense.”

[27] In this regard one complainant tested positive for HIV and syphilis and the other
tested positive for syphilis.

[28] The accused tested positive for both syphilis and HIV, both being sexually
transmitted diseases.

[29] I am satisfied that the trial court did not misdirect itself in any manner in
convicting the Appellant. The findings it made are consistent with the evidence tendered

and for this reason the finding that t he State has proved its case beyond a reasonable
doubt cannot be assailed.

SENTENCE

[30] It is trite that sentencing is a matter pre -eminently in the discretion of the trial
court and a court exercising appellate jurisdiction cannot, in the absence of material
misdirection by the former court, approach the question of sentence as if it were a trial
court and the substitute the sentence arrived at simply because it prefers it. To do so
would be to usurp the sentencing discretion of the trial court. When material
misdirection by the trial court vitiates its exercise of that discretion, an appella te court is
pf course entitled to consider the question of sentence afresh. (See also R v Dhlumayo
and another 1948 (2) SA 677 (A); S v Pieters 1987 (3) SA 717 (A) at 727). A
misdirection is material if the trial court has failed to take cognisance of fact ors that
should have been taken into account or under -emphasises an accused’s personal
circumstances in relation to other relevant to other factors ( See S v Brand 1998 (1)
SACR 296 (C) at 303 e-j).

[31] It will be recalled that a minimum sentence of life imprisonment was imposed on
the appellant. The approach to minimum sentence ordained by the legislature as set out
in S v Malgas 2001 (1) SACR 469 SCA is that the specified sentences are not to be
departed from lightly or for ‘ flimsy reasons’, and that matters such as ‘ undue sympathy’
or ‘aversion to imprisonment of offenders’ are to be excluded. That said, the Supreme
Court of Appeal explained this comment in S v Swart 2004 (2) SACR 370 (SCA) at
paragraph 17 by stating that the court did not intend to suggest that the quality of mercy,
an intrinsic element of civilised justice, should be altogether overlooked , but rather
meant to emphasise that retribution and deterrence will come to the fore in relation t o
such crimes. It of course does not follow that simply because the circumstances

such crimes. It of course does not follow that simply because the circumstances
attending a particular offence result in it falling within one or the other of the categories
delineated in the Act a uniform sentence must or should be imposed. (See S v
Mahomotsa 2002 (2) SACR 435 SCA). The court a quo was enjoined to consider, as it

did, whether substantial and compelling circumstances exist which justify a departure
from the prescribed minimum sentence of life imprisonment.

[32] The accused’s personal circumstances were as follows:

(a) He is 38 years old adult male who is unmarried.
(b) He has no children.
(c) The accused’s highest education is Grade 9.
(d) Prior to his arrest, he was employed as a general labourer for 8 years and
earned a salary of R1500 per week.

[33] The attorney for the accused argued that his personal circumstances should be
considered as substantial and compelling and the fact that he was in custody for 2 years
and 8 months before the matter was finalised. This he argued was sufficient for the
court to deviate from the prescribed minimum sentence.

[34] The Appellant was found guilty of 2 counts of rape. In terms of section 51 of
Act 105 of 1997 life imprisonment is the appropriate sentence. If there are compelling
reasons for the court to deviate from the prescribed minimum sentence, then those
circumstances must be placed on record.

[35] The Appellant’s personal circumstances can hardly be described as substantial
and compelling. There is nothing out of the ordinary about his personal circumstances.

[36] The fact that the Appellant was an awaiting trial prisoner for 2 years and 8
months is to my mind an insufficient reason to deviate from the prescribed minimum
sentence. The period spent in custody by a prisoner is a factor to be taken into account
in determining that circumstances exist such that a minimum sentence may be departed
from. There is no rule as to how to determine what weight is to be given to that period.
Each case must be decided having regard to all circumstances that justify a lesser

sentence. (See DPP v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014). In S v
Hadebe 2013(2) SACR 165 SCA paragraph 14, the court emphasised that:

“Presentenced detention is merely one of the factors to be taken into
consideration to determine whether the effective sentence imposed is pro per to
the crime committed and therefore justified.”

[37] I refer to S v Abrahams 2002(1) SACR 116 (A) para 25 where Cameron JA
stated:

“The prescribed sentence the Act contains plays a dual role in the sentencing …”

[38] Effect was given by the learned Magistrate to the triad of S v Zinn 1969 (2) SA
537 (A) namely, the personal circumstances of the Appellant, the seriousness of the
offence and the interest of society.

[39] Counsel for the Appellant concedes that the facts of this matter are heart
wrenching.

[40] The circumstances under which these two complainants lived can be described
as difficult. The ch ildren were often left without proper adult supervision. They are
certainly children in need of care.

[41] It seems to me that it is only once complainants enter the court system that social
workers become aware of the circumstances and these child complainants may then be
placed in better circumstances for e.g. foster care or children’s institutions, which the n
begs the question, why must our children be traumatised to this extent before being
removed from such shocking conditions.

[42] Children who victims of social ills deserve support and , in my view, it would in
their best interest of children if communit y organisations and social workers investigate

the conditions in which our children live and then ascertain whether or not they are
indeed in need of care (as provided in the Children’s Act) before they are subjected to
such horrific consequences such as rape.

[43] The sentence imposed by the learned Magistrate is appropriate.

CONCLUSION

[44] I have in this judgment found that the conviction of the Appellant in both counts is
justified by the evidence, and therefore the trial court did not misdirect itself. In similar
vein, the sentence imposed is equally justified. In the circumstances, the following order
is issued:

[43.1] The Appeal against both conviction and sentence is dismissed.


___________________________
Van Leeve, AJ
Acting Judge of the High Court

I concur
and it is so ordered

_________________________
Ndita, J
Judge of the High Court


APPEARANCES

For the Appellant: A De Jongh

Instructed by: Legal Aid South Africa
AltheaDJ@legal-aid.co.za

For the Respondent: N Ajam
Instructed by: Director of Public Prosecutions
najam@npa.gov.za