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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
GAUTENG DIVISION, JOHANNESBURG

CASE NO: A94/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
14 July 2025

In the matter between:

M[…] B[…] Appellant

And


THE STATE Respondent


JUDGMENT


Mdalana-Mayisela et Moosa JJ

Introduction

[1] This is an appeal against the conviction and effective sentence of life
imprisonment imposed upon the appellant by the Regional Magistrate court,
Randfontein. The appellant enjoys an automatic right to appeal his conviction and
sentence upon issuing a notice of appeal. The appeal is opposed by the respondent.

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[2] The appellant was charged on count 1 with assault to do grievous bodily
harm; count 2 with contravention of section 3 read with sections 1, 56(1), 57, 59 and
61 of the Criminal Law Amendment Act 32 of 2007 (“Sexual Offences and Related
Matters Act”), further read with section 1 of the Criminal Law Amendment Act 1 of
1998, as amended, and further read with section 51(1) and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997, as amended (“the CLAA”); count 3 with
contravention of section 3 read with sec tions 1, 56(1), 57, 59 and 61 of the Sexual
Offences and Related Matters Act, further read with section 1 of the Criminal Law
Amendment Act 1 of 1998, as amended, and further read with section 51( 2) and
Schedule 2 of the CLAA; count 4 with theft; and count 5 with kidnapping.

[3] He was legally represented throughout the proceedings in the lower court. He
pleaded not guilty to all counts and gave no plea explanation. He was convicted as
charged on all counts. He was sentenced on count 1 to 5 years’ imprisonment; count
2 to life imprisonment ; count 3 to 10 years’ imprisonment ; count 4 to 3 years’
imprisonment; and count 5 to 5 years ’ imprisonment. The sentences imposed on
counts 1, 3, 4 and 5 were ordered to run concurrently with the sentence imposed on
count 2. He was declared unfit to possess a firearm in terms of section 103 of Act 60
of 2000.

Factual background

[4] The facts leading to conviction and sentence are from two incidents which
occurred on the 7
th and 20 th of November 2022 and briefly, are as follows. The
complainant, D[…] S[…] and appellant were in a love relationship and lived together
before the incidents in question. According to the complainant, t he relationship
ended, and she moved out of their communal residence and went to stay in a shack
in the same neighbourhood.

[5] On the 7
th of November 2022 at around 5:30 am, the appellant went to the
complainant’s shack. He found her sitting on the bed. He grabbed her on her left arm

complainant’s shack. He found her sitting on the bed. He grabbed her on her left arm
and pulled her out of her shack to his room. On arrival in his room, he locked the
door and played music loud. He interrogated her about her whereabouts during the

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previous night. He assaulted her with open hands and clenched fists and kicked her
all over the body. She sustained injuries. Her face was bruised, swollen and
bleeding. Her jaw was dislocated. Her eyes could not open fully. Her ribs were sore.

[6] After assaulting her, he removed her jeans and underwear. He instructed her
to kneel on the bed and bend forward. He pushed her upper body forward and called
her a prostitute. He then inserted his penis into her anus from behind without her
permission. She could not resist him because he was stronger than her physically
and the door was locked. She was screaming during the penetration and telling him
that it was painful. He did not care. No one came to her rescue during the incident.
When he was finished penetrating her, she left the room. She saw the accused’s
mother in the yard. The accused’s mother noticed the injuries on her face and gave
her a scarf to cover her face. She then went to her shack.

[7] On arrival in her shack, s he took a bath. Her son observed the blood coming
from her anus and asked her if the appellant stabbed her. She told him that he was
still young, and he would not understand. Her friend D[…] M[…] saw her injuries on
the same day , and she informed her that she was assaulted by the appellant . She
went to the clinic two days after the incident.

[8] On the 20
th of November 2022 at around 4:00 am, she arrived at her shack
from an all-night outing. She was drunk. She went to bed without undressing her
clothes and fell asleep. Her son was in the shack. He woke her and asked what was
causing the bed to shake. The appellant answered that he was having sexual
intercourse with the complainant. She then noticed the signs in the bed and on her
lower body which confirmed that the appellant had penetrated her vagina. Her lower
body was naked. She was not aware that the appellant was in her shack before her
son woke her. She asked her son if he opened the door for the appellant and he

son woke her. She asked her son if he opened the door for the appellant and he
denied. She did not consent to have anal intercourse with the appellant.

[9] She noticed that the appellant had taken his phone which was in her
possession. He also took her bank card and identity document without her
permission. On the same day she went to the police station to open a case against
the appellant. She also went to the clinic. She was referred to Leratong hospital. She

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was examined by Dr Leonard John Maringa who completed a J88 form that was
handed in as evidence by the State.

Ad conviction

[10] In his notice of appeal, t he appellant contended that the lower court erred in
convicting him on all counts without the evidence proving his guilt beyond
reasonable doubt. Further, he contended that the lower court erred in rejecting his
version as not being reasonably possibly true.

[11] It was argued on behalf of the appellant that the complainant was not a
credible witness for the following reasons. She did not report the rape which
occurred on 7 November 2022 to Mlambo. She did not report t he incident to the
police immediately. She was drunk during the incident on the 20
th of November 2022
and that might have limited her factual recollection of the incident. Her version of
anal penetration during the second incident was not corroborated by the J88
completed by Dr Kashif on 25 November 2022.

[12] First, I deal with the contention that the complainant was not a credible
witness. The lower court made a credibility finding that she was a credible witness.
There were no improbabilities or material contradictions in her evidence. I concur
with the credibility findings made by the lower court. It had the advantage of
observing and hearing the complainant and other witnesses firsthand. I perused the
record, and I found no misdirection in this regard.

[13] It is common cause that she was drunk during the second incident. However,
that fact does not mean that the rape incident did not take place. Her version on
penetration during the second incident was corroborated by the appellant. The
issues in dispute were consent and whether he penetrated her vagina. She disputed
the appellant’s version that the penetration was consensual. Her version of anal
penetration was corroborated by a medical report. Dr Maringa conducted a clinical
examination and found that there was scaring at 6 o’clock on the orifice, which is a

examination and found that there was scaring at 6 o’clock on the orifice, which is a
slighter inner part of the anus . The orifice was 1 centimetre dilated, meaning you

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could push a finger in without any form of resistance. He concluded that there was
anal penetration.

[14] The appellant’s version on the rape that occurred on the 7
th of November
2022 was a bare denial. The complainant testified that he inserted his penis into her
anus without her consent after assaulting her all over the body. She stated that she
did not inform Mlambo about the rape because the appellant had threatened to kill
her if she told anyone about the incident. She also did not inform the accused’s
mother about the rape when she found her in the yard and the medical nurses at the
clinic when she consul ted two days after the incident because of the death threat.
She reported both incidents to the police on the 20
th of November 2022 because the
appellant’s conduct was affecting her young child and she could no longer tolerate it.

[15] She testified that her anus was injured after the first incident of rape. She had
cuts and she was bleeding. She could not defecate for two days. During her
testimony she stated that she was still struggling to defecate. She went to the clinic
after two days and the nurse gave her painkillers and ointment to apply on her
injuries. Her anal injuries and medication received from the clinic were not disputed
by the appellant. She was cross-examined about the J88 completed by Dr S Kashif
on 25 November 2022, which did not mention anal penetration. Her answer was that
J88 was completed from the clinic records of the first incident. She did not mention
anal penetration to the clinic staff when she consulted two days after the first incident
because of the death threat that was made to her by the appellant.

[16] In his examination in chief, the appellant initially admitted to assaulting the
complainant on the 7
th of November 2022 but later denied it and said it happened in
October. He also denied that it was assault with intent to do grievous bodily harm
and said that he only assaulted her with an open hand because she went to the

and said that he only assaulted her with an open hand because she went to the
tavern and left him with a child. The complainant testified that the appellant went to
her relatives’ house after the assault incident on the 7
th of November 2022 to
apologize for assault ing her. He also came to her shack bribing her with some stuff
and asking her not to report him to the police. Mlambo corroborated the
complainant’s version that she was assaulted on the 7 th of November 2022. She
testified that she called the police, but the complainant refused to speak to them.

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[17] Dr Kashif corroborated the complainant’s version on assault with intent to do
grievous bodily harm. He noted bruises, swelling and tenderness in the zygomatic
area and cheek. He also noted the dislocated jaw. He concluded that there was
physical assault. Dr Maringa also corroborated the complainant on the version of
assault. He found that there were bruises on both cheeks and thigh. He concluded
that there was physical assault. The appellant also corroborated the complainant’s
version that she sustained a dislocation of the jaw, but he said it happened when she
was eating beef stew.

[18] The complainant was a single witness in respect of the rape incidents. Section
208 of the Criminal Procedure Act 51 of 1977 provides that conviction may follow on
the single evidence of any competent witness. It is common cause that the
complainant is a competent witness. The lower court applied a cautionary rule to her
evidence. I also found that her evidence was satisfactory in all material respects.
Furthermore, her version on the rape incidents was corroborated in material respects
by the appellant and Dr Maringa as alluded above. The appellant also admitted that
he took the complainant’s identity document and bank card without her permission. I
find that the state proved all the elements of the offences beyond reasonable doubt.

[19] The lower court found that the appellant was not a credible witness. I agree
that he was a bad witness. He testified repeatedly that he assaulted the complainant
an open hand on the 7
th of November 2022. He later changed and said the assault
took place during October. He also testified that he went to the complainant’s shack
on the 7
th of November 2022 but denied any assault because he could not assault
her in the presence of other residents. He later changed and said he did not go to
her shack on that day.

[20] He testified that on the 20
th of November 2022, around 4:30 am he went to the

[20] He testified that on the 20
th of November 2022, around 4:30 am he went to the
complainant’s shack. He knocked and the complainant saw him, the child opened
the door for him , and he entered. He changed his version and said that the
complainant came to his place and told him to come to her shack at night. He went
to her shack at night and found her sleeping. He shook her and she woke up.

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Thereafter, he had a smoke, and she called him by his name. He jumped into the
bed and then they had sexual intercourse.

[21] When asked about whether the sexual intercourse was consensual, he said
that they agreed to have it. When asked how they reach that agreement, he said “it
is a common thing that we normally do. I would sit there and then when I arrive there
and then we would touch and touch each other and then from there we would get
into the bed and then we have sex.” When asked to be specific on how they reached
the agreement on that day, he said “ then after having sex with her, at around 06:00 I
went to go buy her bread, sugar and eggs and cigarettes .” His counsel decided to
leave the question unanswered. The version about buying bread, sugar and eggs
was not put to the complainant.

[22] The appellant’s version was correctly rejected by the lower court as not being
reasonably possibly true. I find no misdirection by the lower court in convicting the
appellant on all offences. Accordingly, the appeal on conviction must fail.

Ad sentence

[23] The appellant contended that the sentence imposed by the lower court is
severe and induces a sense of shock. It was argued on his behalf that the lower
court overemphasized the seriousness of the offences and interests of society. It did
not attach sufficient weight to his personal circumstances. It failed to deduct the
period he spent in custody awaiting trial from the sentence.

[24] It is trite that sentencing is pre-eminently a matter for the discretion of the trial
court. The test for interference with the sentence imposed by the trial court is not
whether or not the appeal court would have imposed another form of punishment,
but rather whether the trial court exercised its discretion properly and reasonably
when it imposed the sentence. The appeal court will interfere where the imposed
sentence is vitiated by an irregularity, misdirection or where there is a striking

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disparity between the sentence and that which the appeal court would have imposed
had it been the trial court or if it induces a sense of shock.1

[25] Section 51(1) of the CLAA is applicable to count 2 and section 51(2) is
applicable to count 3. The conviction on count 2 attracts the prescribed minimum
sentence of life imprisonment and on count 3 attracts the prescribed minimum
sentence of 10 years imprisonment, unless the court finds that there are substantial
and compelling circumstances warranting a deviation from the imposition of the
prescribed minimum sentences.

[26] In determining whether there are substantial and compelling circumstances, a
court must be conscious that the legislature has ordained a sentence that should
ordinarily be imposed for the crime specified, and that there should be truly
convincing reasons for a particular circumstance to call for the imposition of a lesser
sentence. Such circumstances may include those factors traditionally taken into
account in sentencing – mitigating factors - that lessen an accused’s moral guilt. The
specified sentences are not to be departed from lightly and for flimsy reasons.
2

[27] The appellant submitted that the following personal circumstances are
substantial and compelling. He was 28 years old at the time of sentencing. He was
self-employed as an illegal miner. He spent almost 2 years in prison awaiting trial.
He has one relevant previous conviction, and he has prospects of rehabilitation.

[28] The appellant is not married. He has no children. He has grade 7 level of
education. He has not shown remorse. He has a previous conviction of assault GBH
committed in 2018. He has been convicted of serious offences. The period he spent
in prison awaiting trial was a factor to be considered when imposing a sentence, but
it could not be mathematically deducted from the prescribed life sentence.

[29] No evidence was led in the lower court showing that his age played a

[29] No evidence was led in the lower court showing that his age played a
significant role in the commission of the offence and thereby reduced his

1 S v Kgosimore 1999 (2) SACR 238.
2 S v Malgas 2001 (1) SACR 469 (SCA) para 25.

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blameworthiness. He elected not to testify in mitigation of sentence. In S v Matyityi3 it
was held that:
“Thus whilst someone under the age of 18 years is to be regarded as naturally
immature, the same does not hold true for an adult. In my view a person of 20
years or more must show by acceptable evidence that he was immature to
such an extent that his immaturity can operate as a mitigating factor. At the
age of 27 the respondent could hardly be described as a callow youth. At best
for him his chronological age was a neutral factor. Nothing in it served, without
more, to reduce his moral blameworthiness.”

[30] In S v Vilakazi
4 the Supreme Court of Appeal in relation to what constitutes
substantial and compelling circumstances held as follows:

“In cases of serious crime, the personal circumstances of the offender by
themselves, will necessarily recede into the background. Once it becomes
clear that the crime deserves of a substantial period of imprisonment the
question whether the accused is married or single, whether he has two
children or three, whether or not he is in employment, are in themselves
immaterial to what that period should be, and those seem to me to be the kind
of ‘flimsy’ grounds Malgas said should be avoided. But they are nonetheless
relevant in another aspect. A material consideration is whether the accused
can be expected to offend again.”

[31] The appellant has a very slim chance of rehabilitation, if any. The contents of
the probation officer’s report show that he is a danger to the society, and he must be
removed permanently. His own mother fear s that he would kill her one day. One of
the neighbours told the probation officer that if the appellant is released from custody
she is going to relocate to Limpopo because she fears the appellant.

[32] The contents of both the probation officer’s report and victim impact report
show that the appellant had been abusing the complainant for a long time and

show that the appellant had been abusing the complainant for a long time and
sometimes in the presence of the community members . The members of the society

3 [2010] ZASCA 127 paras 18 to 20.
4 1967(2) SA 193 A at 199 G.

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could not protect her because they feared him. On one occasion, he assaulted a
community member who tried to help the complainant. Mlambo called the police after
the appellant assaulted the complainant on the 7th of November 2025. The
complainant refused to speak to the police because of the death threat the appellant
made to her. The appellant also abused the complainant’s child. He raped the
complainant in the presence of the child, and he sometimes assaulted the child. The
appellant told the probation of ficer that he belonged to the gang that violated other
people’s human rights but respected only their mothers. The society must be
protected against the appellant.

[33] The lower court found that the appellant’s personal circumstances are not
substantial and compelling. Considering what I have stated above, the lower court’s
finding cannot be faulted. His personal circumstances are what was referred to in S v
Malgas supra as flimsy. The lower court correctly imposed the prescribed minimum
sentences. The effective sentence of life imprisonment does not induce a sense of
shock, and it is appropriate in the circumstances of this case.

ORDER

[34] In the result, the following order is made.
1. The appeal against conviction and sentence on all counts imposed by
the lower court is dismissed.
2. The order made by the lower court is hereby confirmed.

MMP Mdalana-Mayisela
Judge of the High Court
Gauteng Division,
Johannesburg

I agree

C I Moosa
Judge of the High Court
Gauteng Division,

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Johannesburg

Date of delivery: 14 July 2025


Appearances:

On behalf of the appellant: Mr E Guarneri

Instructed by: Legal Aid SA

On behalf of the respondent Adv M Maleleka

Instructed by: National Prosecuting Authority