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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: A 234/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
DATE 28/8/2025
SIGNATURE
In the matter between:
E M V[...] H[...] Appellant
and
THE STATE
________________________________________________________________
JUDGMENT
________________________________________________________________
(The matter was heard in open court on 6 August 2025. Judgment was reserved and
after completion uploaded onto the electronic file of the matter on CaseLines. The
date of uploading onto CaseLines is deemed the date of the judgment)
BEFORE: HOLLAND-MUTER J (More AJ concurring):
[1] The appellant was arraigned in the Gauteng Regional Court in Pretoria North on
the following charges:
* Count 1: Assault with the intent to do grievous bodily harm;
* Count 2: Contravening section 120(6)(a) of the Fire Arms Control Act 60 of 2000
(pointing of a fire arm at the complainant);
*Count 3 : Contravention of section 5(1) of the Sexual Offences Act 32 of 2007
(sexual assault of the complainant);
* Count 4: Contravention of section 3 of the Sexual Offences Act 32 of 2007 (vaginal
penetration of the complainant’s vagina with his fingers on several occasions
between 2008 to 2019);
* Count 5: Contravention of section 3 of the Sexual Offences Act 32 of 2007 (vaginal
penetration with penis during April to May 2018);
*Count 6: Contravention of section 3 of the Sexual Offences Act 32 of 2007 (vaginal
penetration with penis on 27 November 2018); and
* Count 7: Contravention of section 3 of the Sexual Offences Act 32 of 2007 (vaginal
penetration with penis on 15 February 2019).
The appellant , before pleading, was informed of the specific prescribed minimum
sentences to be imposed on charges 3 to 7 and the provisions of the Fire Arms
Control Act 60 of 2000 - the pointing of a fire arm. The appellant was represented
during the trial.
[2] The appellant was sentenced as follows:
* Count 1: 3 years imprisonment;
*Count 2: 3 years imprisonment;
* Count 3: 4 years imprisonment;
* Count 4: Life imprisonment;
* Count 5: 10 years imprisonment;
* Count 6: 10 years imprisonment; and
* Count 7: 10 years imprisonment.
[3] Section 39(2) of the Correctional Services Act, 111 of 1998 (CSA) provides that
where life imprisonment has been imposed, any other sentence involving
imprisonment will automatically run concurrently with the sentence of life
imprisonment. S v Mashava 2014(1) SACR 541 (SCA) at [7]. See Commentary on
the Criminal Procedure Act Du Toit et al Juta Vol 2 28-201-6.
[4] Section 309(1)(a) of the Criminal Procedure Act 51 of 1977 (CPA) provides for an
automatic right to appeal any conviction and/or sentence by an accused person who
was sentenced to life imprisonment in the Regional Court. The appellant was tried
and sentenced to life imprisonment in the Gauteng Regional Court held at Pretoria
North. The current appeal before the court is against conviction and sentence.
[5] There were two versions of evidence presented to court, (i) that of the
complainant and (ii) that of the appellant.
[6] The two versions presented at the trial are mutually destructive in that the
defence’s version was a denial of the allegations raised by the complainant. There
was however certain admissions made during the trial and appeal on behalf of the
appellant which corroborates the version of the complainant.
[7] The summary of the evidence in the judgment of the Magistrate is a complete
version of what was testified and it need not be repeated here in same detail. Suffice
to state that the court will concentrate on the differences between the two versions of
the complainant and the accused.
[8] It is further trite where the evidence by the state contradicts that of the accused,
the court must consider whether the evidence to establish the guilt of the accused
beyond reasonable doubt will only be so if at the same time no reasonable possibility
exists that the ‘innocent explanation’ put forward by the accused might be true. The
two versions are inseparable each being the logic collar of the other. The court has
to consider all the evidence and should not look at the evidence implicating the
accused in isolation to determine whether there is proof beyond reasonable doubt.
The onus of proof remains on th e prosecution and the decision to convict or acquit
must account for all the evidence. S v Van der Meyden 1999(1) SACR 447 W at
449e-450b.
COMPLAINANT’S VERSION:
[9] The complainant (“ C[...]”) was three years old when her mother (Ms V[...] H[...]),
married the appellant. It was not long after when the complainant was 4 to 5 years
old that the appellant started chastising the complainant by using his open hands,
later his fists and a belt. This left certain marks on her legs, back and arms.
[10] The complainant testified that the sexual abuse by the appellant begun when
she was abou t eight years old. The accuse d at first used his hands to fondle the
private parts of the complainant. This became an almost daily event in the mornings
after the complainant’s mother was of the work and the appellant would either call
the complainant to his room or go to her room. He fondled her body under her
pajamas and on occasions made her to touch/stroke his penis.
[11] The complainant was afraid to tell her mother of these unwanted conduct of the
appellant because she was of the view her mother will not believe her.
[12] The complainant testified that she was removed from the custody of her mother
and the appellant after intervention of the CMR (“Christelike Maatskaplike Raad” - a
private social institution) after her teacher observed chastise marks on her legs. She
was placed in the care of her maternal grandmother.
[13] After some time she returned to the care of her mother and the appellant only for
the appellant’s behaviour to continue. She was later again removed for this care by
the appellant’s behaviour to continue. She was later again removed for this care by
FAMSA (another social health institution) when another teach er also observed
several chastise marks on her body. In this instance the appellant had to submit him
for counselling together with the complainant. The school insisted that the
complainant be removed from the custody of V[...] H[...] and the appellant. When the
grandmother remarried and moved away, the complainant was returned to the
custody of V[...] H[...].
[14] She was again returned to the care of her mother and the appellant after some
time only to be subjected to the continued indecent fondling of her by the appellant.
This culminated in the appellant penetrating her vagina with his penis on three
occasions as set out in charges 5, 6 and 7. The appellant fondled with her
developing breasts and she had to ‘play’ with his penis on occasions. This all
happened mostly in the mornings after her mother has left for work and she had to
serve the appellant with coffee in bed before school.
[15] When the appellant found video material on the complainant’s phone of intimacy
between her and R[...] K[...] (her then boyfriend), the appellant took her upstairs and
on the stairs had sexual intercourse with her to ‘teach’ different techniques and he
again penetrated her with his penis in his bedroom.
[16] The complainant was open and frank during her evidence not hiding her intimate
relationship with her boyfriend R[...]. The importance of the evidence of R[...] is that
he listened to a voice recording made by the complainant on occasion when the
appellant raped her before school. He could hear the complainant trying to stop the
appellant and he heard the bed creaking. The recording was somehow deleted and
not presented as evidence. His version corroborated her allegation of the rape on
that specific morning. This led her to report the matter to t he police on assistance by
R[...].
[17] She also acknowledged that she lied to her mother in the past about small
issues to save her skin because it was not allowed for friends to visit her at home.
The appellant merely denied her version.
[18] The version of her grandmother, M[...] G[...], confirms that the complainant was
[18] The version of her grandmother, M[...] G[...], confirms that the complainant was
removed from the custody of her daughter, M […] V[...] H[...] , on at least two
occasions by the CMR and FAMSA because of the conduct of the appellant towards
the complainant. G[...] confirmed the blue hit marks on the body of the complainant.
G[...]’s evidence was not unsettled during cross -examination on behalf of the
appellant.
[19] The evidence of Warrant Officer Nel confirms that the complainant laid charges
against the appellant and when he arrested the appellant after warning him of his
rights, the appellant did not deny the allegations of rape and when asked if he wants
to call his legal representative, the appellant said it does not matter because he was
guilty. This utterance was made voluntary.
[20] The fact that the prosecution did not call one Yvette van Schalkwyk to whom the
complainant made reports about the incidents does not detract from the version
given by the complainant.
[21] The evidence of Dr Lukosi confirmed that the complainant was sexually active
but could not take the matter any further.
APPELLANT’S VERSION:
[22] The appellant’s version was at first a denial of any sexual or other conduct
towards the complainant. This changed later and he admitted that he occasionally hit
the complainant with an open hand but denied using a belt of even a hockey stick.
He could not explain the multiple bruises on the body of the complainant. He later
changed his version that he on occasion used a belt on an isolated incident, but that
it never more than one stroke. His wife, M […] V[...] H[...], however denied that the
appellant ever used a belt when hitting the complainant.
[23] The appellant and V[...] H[...] also differed on the number of strokes
administered by the appellant when hilling the complainant. He stated that it was
never more than four (4) strokes while she said it was one slap on her bum. She
denied that the appellant ever used a belt to hit the complainant.
[24] A more problematic issue for the appellant and V[...] H[...] is the removal of the
complainant from their custody to that of G[...]. V[...] H[...] first denied that the
complainant was removed from her custody by CMR and FAMSA and alleged the
complainant went to stay with G[...] because G[...] had difficulties to cope on her own
after her husband passed on. V[...] H[...] also denied that the second removal by
FAMSA was an opportunity for the appellant for counselling together with the
complainant.
[25] V[...] H[...] later admitted the removal by FAMSA but could not remember the
reason why the removal occurred. The appellant also denied that it was for
counselling and that it was done because the co mplainant was unmanageable. He
later back tracked on this and conceded that it was because of the marks observed
on the complainant by her teacher and that he hit the complainant too many times
and to hard and that he had to go for counselling with the complainant. This was a
compromise not to pursue the matter and the appellant saw it as a learning curve.
[26] It is also undisputed that the appellant did chastise the complainant when her
school marks dropped but his version that he slapped her less than three times does
not tie in with the severe marks on the complainant’s body discovered by the
teacher. V[...] H[...] contradicted the appellant in this regard. It is clear that the
appellant did hit the complainant numerous times and that he used a belt and other
objects and a hockey stick on one occasion. She was hit when her school marks
went down and V[...] H[...] was present at one of these incidents.
[27] The appellant and V[...] H[...] bought the complainant a motorcycle but they
denied that the appellant demanded sexual favours as payment for the motorcycle.
This is again a mere denial of the complainant’s evidence.
[28] It is clear from the record and the judgment that the appellant cast his evidence
to the wind to serve his defence, but the evidence of V[...] H[...] did not always
support his version. They differed about the appellant’s hitting of the complainant,
support his version. They differed about the appellant’s hitting of the complainant,
the reasons for removing the complainant from their custody, the frequency of hitting
the compl ainant by the appellant, the many blue marks left on the body of the
complainant after such sessions trying to justify the presence of the marks as hockey
injuries. V[...] H[...] also tried to explain the earliest injuries sustained by the
complainant was by falling from a play frame at the nursery school and that the
complainant was prone to blue marks for small bumps. V[...] H[...] also said that the
complainant was injury prone (for blue marks) and tried to explain that many of the
blue marks were the result of hockey incidents. The complainant denied this
speculation.
EVALUATION BY THE MAGISTRATE: CONVICTION:
[29] The court fails to finds any proof in the record that the Magistrate did not apply
his mind when evaluating the evidence as a whole. The Magistrate in our view
correctly assessed the evidence taking into account the credibility of the witnesses,
the probabilities of the two versions when compared and applying the necessary
caution regarding the age of the complainant, the long time span of the alleged
events since early days, the contradictions by the appellant and V[...] H[...] on
serious issues and the about turns made by the appellant during the trial regarding
his version.
[30] The appellant was represented during the trial and no complaints were raised
during the trial of unfair procedure . The argument that the Magistrate misdirected
itself in convicting the appellant is without substance. The further argument that the
Magistrate did not properly heed the cautionary rule regarding a single witness and
erred to find that the evidence of the complainant was accepted even though not
clear and satisfactory in all material respects is also without merit.
[31] The court is satisfied that the Magistrate did apply the dictum in R v Van der
Meyden (supra) correct by finding that after consideration of both versions the State
succeeded in proving the guilt of the appellant beyond reasonable doubt. The
Magistrate did consider the evidence as a whole. The Magistrate did not reject the
version of the appellant merely because the State’s version was more plausible. T his
court is satisfied that after considering the evidence in toto , the Magistrate was
correct in rejecting the appellant’s version and correctly convicted the appellant.
correct in rejecting the appellant’s version and correctly convicted the appellant.
[32] It is clear from t he finding a quo that the Magistrate correctly applied the
necessary caution regarding the complainant as a child (although no longer a young
child) and that she was a single witness. There were sufficient corroboration from the
evidence of G[...], K[...] and Nel, when tied together, prove s the cautious approach
applied by the Magistrate.
[33] There was no reason advanced why the complainant would implicate the
appellant without reason. The severe hit marks co nfirm her version and the
turnabout made by the appellant on this aspect is but one further reason to reject his
version. The version of the complainant is corroborated by the other witnesses and
the admissions made on behalf of then appellant regarding the assault of the
complainant. All in all the version of the appellant does not cast any probability that
there is a reasonable possibility that his explanation can be true.
[34] There is nothing to suggest that the appellant did not receive a fair trial and
therefore the appeal regarding the convictions is dismissed.
SENTENCE:
[35] The appellant argues that the Magistrate misdirected itself in a material respect
that the imposed sentences are so striking inappropriate that it can be held to be
shocking and disturbingly inappropriate. It was held in S v Motloung 2016(2) SACR
469 (SCA) on 478d -g that a court of appeal will only interfere when it is clear that
the imposed sentence by the court a quo is so disproportionate that it be seen as
shocking inappropriate.
[36] The appellant was informed during plea that there were certain minimum
sentences prescribed with regard to the charges of sexual assault and penetration of
the complainant by finger and/or penis.
[37] It is trite that a court of appeal will only interfere with, as in this matter, when the
sentences imposed are so shocking disproportionate that it should be set aside. In
this matter this court disagrees with the submissions made on behalf of the
appellant. The court a quo was clear that there were little if any submissions made
on behalf of the appellant to persuade it to deviate from the prescribed minimum
sentences. The arguments made were nothing more than the normal mitigating
sentences. The arguments made were nothing more than the normal mitigating
aspects advanced but fai ls to convince that there were compelling and substantial
reasons to deviate from the prescribed minimum sentence. The directions given in S
v Malgas 2001(10 SACR 469 (SCA) at 478d -g is clear. A similar route was directed
in S v Dodo 2001(1) SACR 594 CC where it was held that a court should be mindful
that the proportionality between the seriousness of the offence and the extent of the
punishment goes to the heart of the inquiry as to whether the punishment is cruel,
inhuman or degrading. This is an individual inquiry in every case.
[38] Having balanced all the information regarding the offence, the offender and the
community ( the triad in Zinn 1969 (2) SA537 (A) ), this court is satisfied that the
imposed sentence is an appropriate sentence considering all aspects. The cruelness
and long on-going sexual abuse of the complainant by the appellant cannot be swept
under the carpet of an inhuman sentence. There is an annual 16 day drive by
government to curb the abuse of women and children which with the greatest
respect does not curb this cancer. Young children are entitled to protection and
where these horrible deeds continue to disgrace young innocent children,
perpetrators should face the consequences.
[39] Taken into account all the aspects argued, this court is not pursued that it should
intervene with the convic tions and the sentence at all. T he appeal should be
dismissed.
ORDER:
The appeal against conviction and sentences is dismissed.
HOLLAND-MUTER J
Judge of the Pretoria High Court
I AGREE
MORE AJ
Acting Judge of the Pretoria High Court
Appeal heard in open court on 6 August 2025
Judgment handed down/uploaded onto CaseLines on 28 August 2025
APPEARANCES:
Appellant: Mr M G BOTHA
Pretoria Justice Centre
Legal Aid Board
STATE: Adv A COETZEE
Director of Public Prosecutions, Pretoria