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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: CA&R 36/2024
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
S[...] V[...] W[...] Appellant
and
THE STATE Respondent
Quorum: Mamosebo ADJP et Nxumalo J
Heard on: 03/03/2025
Delivered on: 06/06/2025
Summary: Criminal law and procedure- Whether the trial court was correct to
convict the accused on counts of exposing or displaying his nudity (i.e “flashing”) to
children for sexual gratification of himself or any third party. Further, whether the
conviction on flashing in addition to that of compelling or causing children to witness
sexual offences, sexual acts , or self -masturbation amounts to a duplication of
charges. Regarding evidence of a single child witness in a rape case – whether the
trial court was correc t to convict the appellant on the evidence of the single child
witness on each count despite contradictions in their evidence.
ORDER
1. The appeal is partially upheld to the extent that the convictions and
sentences imposed in respect of counts 3, 6, 9 and 12 are set aside.
2. Save as aforesaid, the appeal is dismissed.
JUDGMENT ON APPEAL: CONVICTIONS
MAMOSEBO ADJP
[1] The appellant, Mr S[...] V[...] W[...], was charged and convicted in the
regional court, sitting at Galeshewe, Northern Cape Province, with two
counts of sexual assault (counts 1 and 4); four counts of the contravention of
s 21(1) of Act 32 of 2007 (compelling or causing children to witness sexual
offences, sexual acts or self -masturbation) (counts 2, 5, 8 and 11) ; four
counts of contravention of s 22 of Act 32 of 2007 (exposure or display of or
causing exposure or display of genital organs, anus or female breas ts to
children i.e. “flashing”) (counts 3, 6, 9 and 12) and two counts of rape
(counts 7 and 10).
[2] The appe llant was sentenced as follows: on counts 1 and 4 of sexual
assault, to 3 years imprisonment on each count. In respect of counts 2, 5, 8
and 11 (c/s 21/1) on each count to two years imprisonment. In respect of
counts 3, 6, 9 and 12 (c/s22) , on each count to one year imprisonment. In
respect of counts 7 and 10 (rape), on each count to 25 years imprisonment.
Counts 2, 5, 6, 7, 8, 9, 11 and 12 were ordered to run concurrently with
count 10. Resultantly, the effective term of imprisonment amounted to 28
years.
[3] Leave to appeal against the convictions was refused by the trial court.
Subsequently, this court, on petition, granted leave to appeal against the
convictions on counts 3, 6, 7, 9, 10 and 12.
[4] Mr Steynberg, for the appellant, argued that a conviction in counts 3, 6, 9
and 12 ( exposure or display of or causing exposure or display of genital
organs, anus or female breasts to children i.e. “flashing”) is a duplication of
charges and urged the court to set them aside. It was further argue d that the
trial court erred in convicting the appellant of rape in counts 7 and 10 ,
instead of convicting him on the competent verdict of sexual assault.
[5] These are the material facts surrounding the commission of the offences:
The appellant and Ms Belinda Bekker reside in the same yard. He occupies
the main house while Ms Bekker and the appellant’s cousin (PS’s father)
occupy the shack at the back of the house . On 10 J anuary 2020, she was
cleaning their shack when PS1 came looking for her father . Ms Bekker
explained to P S that he r father was at work. As PS and her friends were
leaving, the appellant called them into his house , and they entered . Ms
Bekker continued with her chores. As she walked outside towards the
washing line, she observed the appellant , fully dressed, seated on the floor.
The girls were standing naked in front of him an d he was licking their
vaginas. R was not yet present at that stage . She then saw R crying , and
she showed her a blue mark on her inner thigh and reported that the
appellant had caused it. The appellant was about three meters from where
Ms Bekker stood. The door of the main house and the door to the shack face
1 The minors involved are referred to by their initials.
each other. She reported to her neighbour, Charles , also known as
“Bothata”, to seek his intervention.
[6] The minor children testified through a sworn intermediary, Ms Phumla Portia
Mbalu. Before their testimony , the prosecutor handed in , by consent , their
medical forms known as a J88, completed by Dr Labala Mafusi at Kimberley
Hospital, and the registered forensic nurse Ms Claudelia Jenkins, a Health
Care Practitioner at Thuthuzela Care Centre.
In respect of count 7: rape of PS
[7] PS was admonished to tell the truth and testified through an intermediary. She
was six years old at the time of the incident. She was accompanied by B T, PB
and R to her father’s place, which is in the same yard as the appellant’s. They
only found her stepmother, Ms Belinda Bekker, who informed them that her
father was at work. They then played in the appellant’s yard.
[8] The appellant called them and asked to see their panties . They complied. He
invited them into the house. P S swept the floor. P B invited her to feel the
appellant’s ‘thing’ called ‘a piepie’ that was erect . She does not know what
that thing does.2 The appellant ordered them to undress, leaving them naked.
PS covered herself with blankets. The appellant spread his legs and invited
the girls to have him lick their vaginas. R went first, followed by P S, then PB.
Charles then burst into the room , demanding to know what was happening ,
and the appellant told him he was counting the children. They fled, and BT left
her shoes at the appellant’s place. PS went home.
[9] According to P S, t he appellant inserted his ton gue in her vagina whilst she
was in a standing position. She demonstrated to the court using the
anatomical doll how that occurred. She said, ‘he opened my thing and then
put his tongue in.’3 When asked what she meant by ‘thing’ she ans wered, ‘my
vagina’. The prosecutor asked her what she felt when touching the appellant’s
2 Page 309 of the record.
3 Page 321 line 17.
thing. Her response was ‘ I felt it was hard.’ 4 She did not see it because the
appellant was fully dressed.
[10] Capt. Nomakubenje Agnes Skampula is registered as a social worker with the
South African Council for Social Service Professions (SACSSP) with
Registration No 10 -24726. She has a B achelor of Social Science (SW)
obtained in 2005 at the University of Fort Hare and an MA (SW) Forensic
Practice, obtained at North-West University (Potchefstroom) in 2014. She has
12 years’ experience as a social worker. She compiled a report dated 11
March 2020 , having conducted a forensic assessment session with P S. PS
related to her in similar vein to her testimony.
[11] PS was taken to the Thuthuzela Care Centre where she was examined , in
the presence of her mother, by a forensic nurse, Ms Claudelia Jenkins , on
13 January 2020. She recorded the following on the J88 form under Part C
Medical History at para 5:
‘History of the alleged assault and/or rape – victim said that a male known t o
her sucked her ‘koekie’ and he put his finger in her vagina date 10.01.2020
during the day, she can’t remember the time.’
At Part F, under Clinical Findings, the nurse wrote:
‘No visible injuries observed and no complaints of physical injuries given.’
In respect of count 10: rape of PB
[12] PB was 10 years old during the incident and 11 years old when she testified.
She confirms the evidence of accompanying PS to her father’s place as well
as being in the com pany of B T and R. The appellant asked them to show
him their panties. P S and B showed him, but she was not wearing a panty.
The appellant then ordered her and P S to clean the floors. As they were
4 Page 322 line 25.
cleaning, he ordered them to undress. He licked their vaginas. P S’s
stepmother noticed this and called Charles. She and B T hid under the bed
while R and PS climbed onto the bed. Charles came and demanded to know
what the appellant was doing to them. They fled . PB corroborated in all
material respects that the appellant had followed the same process with her.
She did not report the incident immediately to her mother as P S had advised
against it. According to her the appellant’s plate was broken , and the
appellant chastised R for it.
[13] PB was also examined by the forensic nurse, Ms Claudelia Jenkins, on 13
January 2020 at the Thuthuzela Care Centre. Ms Jenkins wrote the following
under Part C, para 5 of the J88 regarding the history:
‘victim’s mother said that a male known to the victim put his finger in her
vagina and sucked it. The victim told her date 10.01.2020 time during the
day.’
Ms Jenkins’ clinical findings were that no visible physical injuries were
observed, and she did not receive any complain ts relating to physical
injuries.
[14] Capt. Skampula compiled the s ocial worker’s report after assessing PB. The
social worker had to postpone two assessment sessions before she could
even commence, having observed the child’s sitting position, lack of eye
contact, followed by her crying. The social worker wrote at 7.5.1 regarding
PB’s emotional state:
‘During both sessions P B was so tense and emotional that she could not
participate in the assessment process. The child was emotional during both
sessions. She was not responding to questions that need[ed] more clarity.’
Ms Martha Boitsi is P B’s mother who furnished collateral i nformation to the
social worker at para 7.7 in that the children, P B, P S, B T and Fifi, were
together when they told them, as parents, about the sexual abuse incident.
Ms Boitsi also explained that because PB was shy, it made it difficult for her
to talk to strangers. Since PB did not disclose anything to the social worker,
the report was silent on the exposure count.
In respect of counts 3, 6, 9 and 12
[15] The State alleged that the appellant exposed his penis to R, BT, PS and PB
while the children were naked for his sexual gratification.
[16] Lt Col Lezelda Raymond is a social worker registered with the SACSSP with
Registration No 10-18925. She obtained a B.Diac Honours Degree in Social
Work from Huguenot College (affiliated to Unisa) in 1998 and completed a
master’s degree in public administration from the University of the Western
Cape in 2005. She conducted three assessment sessions with R , who, at
four years of age at the time, was old enough to obtain a reasonable account
of what had transpired. R informed the social worker that S[...] ate up her
“kubujane”, the name she used to refer to her private parts. He also
scratched her with his finger in her “ kubujane”. The report is silent on the
exposure of the appellant’s penis.
[17] Capt. Skampula also compiled the social worker’s report having conducted
an assessment for BT. She was in the company of P S, P B and R ,
accompanying PS to ask for money from her father. They did not find him at
home. BT informed Capt. Skampula that S[...] (the appellant) resides in the
house while P S’s father resides in a shack in the same yard. According to
BT, P S, P B, and R washed the dishes while she c leaned the floor. S[...]
ordered them to undress and then licked the vaginas of P S, R and P B and
inserted a finger in hers. The social worker’s report is silent on the exposure
or display of the appellant’s genitals to her.
[18] Mr Charles Bothata Mosikela is the appellant’s neighbour. He grew up
before the appellant. He says he and his late brother sat outside their house
when Ms Bekker called his brother, Mr Tshepo Mosikela , for help. He and
when Ms Bekker called his brother, Mr Tshepo Mosikela , for help. He and
his brother went to the appellant’s h ouse. The appellant was in front of the
kitchen door . He saw the appellant lifting the girls ’ skirts. At that stage , R
approached from the bedroom holding her pair of pants (not panties) in her
hand. He asked the appellant what he was doing, but received no response.
Charles told the appellant that he was going to report the incident to the
appellant’s sister. At his sister’s house, he only found one of the nephews.
He sent a text message of the incident to R’s father , who is his friend . He
spoke under corr ection that it may have been three children who were
involved.
[19] The appellant’s testimony was to the effect that the children were playing a
game in his yard known as ‘touch’. There were four girls and two boys. He
sat outside the house next to the kitchen door. He went to the toilet situated
outside his home and , upon his return, received a report that some of those
children had broken his cup and plate inside the house. In the house , he
found PS and R and chastised them by slapping them both on their buttocks.
The children fled , and only R remained. He denied participating in any
sexual activities with any of the children. The appellant maintains that he
instructed R to report the breakage of his cup and plate to aunty Mamma.
[20] The first issue for determination is whether the court was correct to convict
the appellant on counts 3, 6, 9 and 12 for exposing his penis and displaying
nudity to children whether for the sexual gratification of himself or any third
party. As stated, the appellant’s contention is that these counts amount to a
duplication of charges.
[21] Section 22 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007, provides:
‘Exposure or display of or causing exposure or display of genital
organs, anus or female breasts to children ('flashing')
A person ('A') who unlawfully and intentionally, whether for the sexual
gratification of A or of a third person ( ‘C’) or not, exposes or displays or
gratification of A or of a third person ( ‘C’) or not, exposes or displays or
causes the exposure or display of the genital organs, anus or female breasts
of A or C to a child complainant ('B'), with or without the consent of B, is
guilty of the offence of exposing or displaying or causing the exposure or
display of genital organs, anus or female breasts to a child.’
[22] Mr Steynberg first attacked the manner in which the charges had been
framed, purportedly creating the impression that the appellant is both A and
C (the perpetrator and a third party) as explained in s 22 above. Differently
couched, it seems as if the appellant exposed his penis to himself. The
argument went that when the trial court made the explanation in counts 3, 6,
9 and 12 to the appellant , it neither made the distinction between who the
exposure was meant for nor caused the charge sheet to be corrected during
the explanation.
[23] The particulars of counts 3, 6, 9 and 12 are essentially similar. Count 3
reads:
‘Exposure or display of or causing exposure or display of genital
organs, anus or female breasts to children (“Flashing”)
That the accused is guilty of the crime of contravening the provisions of
Section 22 read with sections 1, 2, 50, 56(8), 56A, 57, 58, 59, 60 and 61 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 as amended.
Further read with sections 94, 256 and 270 of the Criminal Procedure Act 51
of 1977. Further read with section 120 of the Children’s Act 38 of 2005.
IN THAT on or about the 10 January 2020 and at or near Club 2000,
Galeshewe in the Regional Division of N orthern Cape the said accused did
unlawfully and intentionally commit an act to wit expose his penis and nudity
of children whether for the sexual gratification of the accused person or of a
third person or not to wit S[...] V[...] W[...], expose or display or cause the
exposure or display of the genital organs, anus or female breasts of the
accused or the said third person to a child complainant to wit RVL 4 years
old with or without the consent of the said chil d complainant by exposing his
penis, having children walk around naked.’
The charge sheet also has , in a block , a definition of section 22 , which
appears in the preceding paragraph. The content in counts 6, 9 and 12 is the
same and differs only in respect of the personal particulars of the
complainants. The chargesheet also shows that it was compiled by the NPA
and was revised in 2018.
[24] The evidence is uncontroverted in as far as the aspect that the appellant was
fully dressed for the entire duration when the complainants were at his place.
The only person who referred to th e appellant’s penis being hard (erect), as
she “felt it”, was PS who purportedly did so after being called by PB. PB did
not testify about the appellant’s private part and whether she had touched it
or me rely observed it . None of the other witnesses referred to this aspect,
not even in the collateral information. I am not satisfied that the state has
made out a case pertaining to the allegation that the appellant exposed his
genitals to the complainants in counts 3, 6, 9 and 12.
[25] Mr Steynberg further argued that there was a duplication of convictions as
the appellant has already been convicted of counts 2, 5, 8 and 11, that is,
being in contravention of s 21 (1) of Act 32 of 2007, which provides:
‘A person ('A') who unlawfully and intentionally, whether for the sexual
gratification of A or of a third p erson ('C') or not, compels or causes a child
complainant ('B'), without the consent of B, to be in the presence of or watch
A or C while he, she or they commit a sexual offence, is guilty of the offence
of compelling or causing a child to witness a sexual offence.’
[26] I disagree . Whereas s 21 (1) would occur where a person unlawfully and
intentionally compels or causes children to witness sexual offences, sexual
acts or self -masturbation, section 22 on the other hand occurs when the
acts or self -masturbation, section 22 on the other hand occurs when the
person exposes or di splays genital organs, anus or female breasts to
children (‘flashing). But for the fact that the state has failed to make out a
case in respect of counts 3, 6, 9 and 12, the evidence thereof would have
been a separate intent by the appellant in respect of the counts in 2, 5, 8 and
11. The Court expounded in S v Dlamini5:
‘. . . Another test is the enquiry whether the evidence necessary to establ ish
one crime involves proving another crime.’
It follows that t he appeal in respect of the convictions in counts 3, 6, 9 and
12 stands to be upheld.
[27] The second issue for determination is whether the trial court erred in
convicting the appellant of rape in counts 7 and 10 and whether it should
have convicted him of a competent verdict of sexual assault. This is what the
state alleges in the charge sheet pertaining to these charges:
‘That the accused is guilty of the crime of contravening the provisions of
section 3 read with sections 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007 as amended. Further read with secti ons 94, 256, and 261 of the
Criminal Procedure Act 51 of 1977. Further read with section 51 (1) and
Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as amended.
Further read with section 120 of the Children’s Act, 38 of 2005.
IN THAT on or about t he 10 January 2020 and at or near Club 2000,
Galeshewe, in the Regional Division of Northern Cape the said accused did
unlawfully and intentionally commit an act of sexual penetration with the
complainant to wit PFS, 6 years old, by sucking her vagina and/or putting his
tongue into her vagina and/or inserting his finger into her vagina without the
consent of the complainant.’
‘That the accused is guilty of the crime of contravening the provisions of
section 3 read with sections 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the
5 2012 (2) SACR 1 (SCA) para 54.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007 as amended. Further read with sections 94, 256, and 261 of the
Criminal Procedure Act 51 of 1977. Further read with section 51 (1) and
Schedule 2 of the Crim inal Law Amendment Act 105 of 1997 as amended.
Further read with section 120 of the Children’s Act, 38 of 2005.
IN THAT on or about the 10 January 2020 and at or near Club 2000,
Galeshewe, in the Regional Division of Northern Cape the said accused did
unlawfully and intentionally commit an act of sexual penetration with the
complainant to wit PLB, 8 years old, by sucking her vagina and/or inserting
his tongue into her vagina without the consent of the complainant.’
[28] The Concise Oxford English Dictionary defines ‘suck’ as:
‘1. Draw into the mouth by contracting the muscles of the lip and mouth to
make a partial vacuum. Hold (something) in the mouth and draw at it by
contracting the lip and cheek muscles. Draw in a speci fied direction by
creating a vacuum. ( Of a pump) make a gurgling sound as a result of
drawing air instead of water.’
[29] The definition o f rape as contemplated in s 1 read with s 3 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, is
the following:
'3 Rape
Any person (A) who unlawfully and intentionally commits an act of sexual
penetration with a complainan t (B), without the consent of B, is guilty of the
offence of rape.'
Section 1 (1) of Act 32 of 2007 provides:
‘In this Act, unless the context indicates otherwise —
. . .
"sexual penetration " includes any act which causes penetration to any
extent whatsoever by —
(a) the genital organs of one person into or beyond the genital organs,
anus, or mouth of another person;
(b) any other part of the body of one person or, any object, including
any part of the body of an animal, into or beyond the genital
organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of another
person.' (own emphasis added)
[30] Mr Steynberg levelled a number of criticisms at the manner in which the
complainant (P S) explained how her vagina was licked. The attack was
based on the phrases that she used : ‘the appellant was inserting his tongue
inside their vaginas’ and ‘the appellant put his tongue on her vagina’ and ‘the
appellant put his tongue on her vagina, he opened it and put his tongue in.’
The criticism in this regard has no merit. The crux of the matter is that the
appellant’s tongue encountered the complainant’s vagina. I accept that the
appellant’s tongue was inside her vagina regard being had to the continuous
use of the term “sucking” their vaginas . PS’s mother said the appellant had
licked their vaginas.
[31] In as far as the evidence of PB is concerned, the criticism is to the effect that
although the complainant had testified that the appellant ‘sucked her vagina
by putting his tongue inside ’, her mother told the forensic nurse that which
appears on the J88 that ‘a male known to the victim put his finger in her
vagina and sucked it.’
This attack is misplaced because it does not detract from the fact that the
complainant’s orifice was invaded.
[32] This Court in S v Carter6 remarked that the slightest penetration of an orifice
(per vagina or anally) constitutes rape. The evidence of the complainants
was that the appellant had inserted his finger in their vaginas and also
sucked their vaginas using his tongue. This act conforms to the definition of
rape as contemplated in s 3 , read with the definition of “ sexual penetration”
as defined in section 1(1)(b) above.
[33] Mr Steynberg relied on the contention that the complainant s in counts 7 and
10 were single witnesses . Section 208 of the Criminal Procedure Act 51 of
1977, provides:
‘An accused may be convicted of any offence on the single evidence of any
competent witness.’
The contention that this court should regard the evidence of the
complainants as evidence of a single witness on each count is devoid of
merit since all the children maintained that they were standing next to each
other when they were violated. Of crucial importance is the evidence by two
adults, Ms Belinda Bekker and Mr Charles Masikela , who caught the
appellant red -handed molesting the children. They made their first report ,
and there are also J88 forms, as well as the assessment reports by the
social workers. The submission by Mr Steynberg that the court should rather
consider setting aside the conviction of rape and substituting it with that of
sexual assault is misplaced. The magistrate correctly looked at and
evaluated the evidence of both parties holistically and in a balanced manner
without analysing it in a compartmentalised fashion. See S v Van Aswegen 7
referring with approval to S v Van der Meyden.8
[34] The complainants, despite their ages, were subjected to intense cross-
examination by the defence but remained consistent in their testimony. The
purported contradictions between the description used by P S and PB in the
6 2014 (1) SACR 517 (NCK) para 17.
7 2001 (2) SACR 97 (SCA) para 8.
8 1999 (1) SACR 447 (W) at 449H – 450B.
forensic reports and their evidence in court are not materially different. The
appellant is a sexual predat or who took advantage of young children ,
including his very own grandchildren. There was a penetration of the orifice
in both complainants. Their testimony was trustworthy. In their testimony,
which included the demonstration using the anatomical dolls , their power of
recollection was evident. They answered the questions posed by the
defence attorney in honesty and credibly.
[35] The majority in S v Y9 made these instructive remarks:
‘In respect of sexual assault cases, thankfully there is no cautionary rule. In
S v Jackson this Court aptly stated as follows:
“In my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes complainants in
sexual assault cases (overwhelmingly women) as particularly unreliable. In
our system of law, the burden is on the State to prove the guilt of an accused
beyond reasonable doubt – no more and no less. The evidence in a
particular case may call for a cautionary approach, but that is a far cry from
the application of a general cautionary rule.”
. . .
In Woji v Santam Insurance Company Ltd, a civil judgment, this Court stated
that the question which the trial court must ask itself is whether the young
witness' evidence is trustworthy. Trustworthiness depends on factors such
as the child's power of observation, thei r power of recollection and their
power of narration on the specific matter to be testified. In each instance the
capacity of the particular child is to be investigated. Their capacity of
observation will depend on whether they appear intelligent enough to
observe. Whether they have the capacity of recollection will depend again on
whether they have sufficient years of discretion to remember what occurs
while the capacity of narration or communication raises the question whether
the child has the capacity t o understand the questions put, and to frame and
the child has the capacity t o understand the questions put, and to frame and
9 [2020] ZASCA 42 (unreported, SCA, case no 537/2018, 21 April 2020) also reported as 2020 JDR
0643 (SCA) paras 49-51. (Footnotes omitted).
express intelligent answers. There are other factors as well which the court
will take into account in assessing the child's trustworthiness in the witness -
box. Do they appear to be honest – is there a consc iousness of the duty to
speak the truth? Recently, in Matshivha v S this Court expressed itself as
follows:
“… the prosecution of rape presents peculiar difficulties that always call for
greater care to be given and even more so where the complainant is young.”
This Court went on to cite an earlier judgment S v Vilakazi where Nugent JA
said the following:
“From prosecutors it calls for thoughtful preparation, patient and sensitive
presentation of all the available evidence, and meticulous attention to detail.
From judicial officers who try such cases it calls for accurate understanding
and careful analysis of all the evidence”.’
[36] I am satisfied that the magistrate’s conclusion was correct. A court of appeal
can only interfere with the trial court’ s findings when it is convinced that its
conclusion was wrong. See R v Dhlumayo and Another.10 I can conceive of
no reason to find a misdirection on the part of the regional magistrate in
convicting the appellant of rape on cou nts 7 and 10. In the premises , the
appeal in this regard must fail.
[37] As stated hereinbefore, the regional magistrate imposed a sentence of 25
years imprisonment on each count of rape. In terms of Part 1 of Schedule 2
to the Criminal Law Amendment Act 105 of 1997 , the minimum sentence
prescribed in terms of s 51(1) in the case of the rape of a person under the
age of 16 years, in the absence of substantial and compelling
circumstances, is life imprisonment. The complainants ’ birth certificates form
part of the record, and it is uncontroverted that they are below the age of 16
years.
10 1948 (2) SA 677 (A) at 706.
[38] The appellant was 56 years old at the time of the incident , which his legal
representative described as an advanced age. I disagree. He spent three
years in custody awaiting trial. His legal representative had claimed that
because the appellant does not have a medical aid , it might affect his life
expectancy. Whatever this meant without scientific evidence to back it up is
a mystery. The trial court was asked to consider humanitarian grounds as
part of the substantial and compelling circumstances and to deviate from the
prescribed minimum sentences particularly because the rape was not vicious
and was not planned.
[39] These are the considerations that the trial court considered when deviating
from the prescribed minimum sentence of life imprisonment: the period of
incarceration whilst awaiting trial; the appellant’s age; his lack of education
and sophistication , and the fact that the catalogue of previous convictions
had superannuated and he was treated as a first offender.
[40] The success on appeal is in respect of only one set of charges, namely,
counts 3, 6, 9 and 12 for which the appellant was sentenced to a period of
one year on each count. The trial court had ordered that the sentences on
counts 2, 3, 5, 6, 7, 8, 9, 11 and 12 should run concurrently with the
sentence on count 10, and would therefore have ‘little or no effect’ on the
composite sentence imposed.
[41] In the result, the following order is made:
1. The appeal is partially upheld to the extent that the convictions and
sentences imposed in respect of counts 3, 6, 9 and 12 are set aside.
2. Save as aforesaid, the appeal is dismissed.
_____________________
MC MAMOSEBO
ACTING DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
I concur
_____________________
APS NXUMALO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
For the Appellant Mr H Steynberg
Instructed by: Legal Aid South Africa
For the Respondent: Adv A Stellenberg
Instructed by: The Director Public Prosecutions