SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: A251/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 10 OCTOBER 2025
SIGNATURE
In the matter between:
T[...] M[...] Appellant
and
THE STATE Respondent
Summary: Appeal against conviction and sentence – rape of a 7 year old girl child
by her 18 year old cousin – complaint made 6 years after the event but
consistent with repeated previous reports of the incident – cautionary
rules duly applied and the conviction upheld. Found that the age of the
offender at the time, despite the heinous nature of the crime, is a
sufficiently compelling circumstance to interfere with the life sentence.
Sentence reduced to 25 years.
ORDER
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1. The appeal against the conviction is refused.
2. The appeal against sentence is upheld and the life sentence imposed is
replaced with a sentence of 25 years imprisonment, antedated to 28
May 2024.
________________________________________________________________
J U D G M E N T
________________________________________________________________
The matter was heard in open court and the judgment was prepared and authored by
the judge whose name is reflected herein and was handed down electronically by
circulation to the parties’ legal representatives by email and by uploading it to the
electronic file of this matter on Caselines. The date of handing -down is deemed to
be 10 October 2025.
DAVIS, J (MORE AJ (Ms) concurring)
Introduction
[1] The appellant was convicted in the Regional Division of Gauteng held at
Benoni on 27 November 2023. The conviction was for rape in contravention of
Section 3 of the Sexual and Related Matters Amendment Act 1 read with the
provisions of Section 51(1) of the Criminal Law Amendment Act2.
[2] The victim was 7 years old at the time but the rape was only reported to the
police 6 years later.
[3] After a finding of guilty, the appellant was sentenced to life imprisonment on
28 May 2024.
[4] The appellant enjoys an automatic right of appeal in terms of the proviso to
Section 309(1)(a) of the Criminal Procedure Act3 (the CPA) read with Section 10 and
Section 43(2) of the Judicial Matters Amendment Act4.
1 32 of 2007.
2 105 of 2007.
3 51 of 1977.
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[5] The appeal is against both conviction and sentence.
Summary of the State’s case
[6] The complainant testified that during 2013 and when she was 7 years old, she
would be sleeping at her aunt’s house during the week and only go home to her
mother’s house on weekends. At her aunt’s house she had to sleep in a room with
three of her cousins, being the appellant, R[...] and B[...].
[7] The incidents started with the appellant coming to her during the night, taking
off her clothes and inserting his private part into her private part. She testified that
“he would finish doing what he was doing and then wipe me with a facecloth”.
[8] Due to her young age, the complainant did not understand what the appellant
was doing to her although it happened a number of times. One day when she and
R[...] were walking to school she told R[...] what the a ppellant was doing to her.
R[...], who understood what was happening, told the complainant to inform the aunt.
[9] The complainant told R[...] that the rape happened virtually every night and
would probably be repeated that same evening. She will wait until then and after it
has happened then go and told the aunt. However, before this could come to pass,
and when the children came home from school that day and the complainant was
playing outside, R[...] came to call her inside.
[10] When the complainant came in side the house, it appeared that R[...] had
already told his two siblings of her accusations and the appellant asked her why she
was lying. An argument ensued when the complainant stuck to her guns and her
evidence was that “... everyone else believed him, because they were all older than
me”.
[11] When the aunt returned that evening, she was informed by the complainant’s
cousins of the complainant’s accusations and was told that this was lies. The aunt
4 42 of 2023.
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instructed the cousins to take the complainant back to her home because she was
going to get the aunt’s son “... arrested by lying ...”.
[12] When the cousins took the complainant home, they told her mother that they
were bringing her home “ because she was lying ”. Her mother believed the cousins
and the complainant was beaten with a belt by her mother. This silenced the
complainant.
[13] Thereafter the complainant under went a transformation. She started losing
weight and occasionally would go for two days without eating, depending on her
level of depression. She became, in the words of another aunt, “troublesome” and
would skip school. She started staying out late at night. When sent to her aunt (the
one with the cousins) by her mother , she would leave on her own , not return home
but go and simply stand outs ide another aunt ’s door until 10 o’clock at night. She
even attempted suicide.
[14] In 2019 when the complainant was in Grade 8 she confided in her much older
sister, whose husband was a police officer. She was only then taken to the
Daveyton Main Clinic for examination, whereafter charges were laid.
[15] The professional nurse who performed the examination testified and
confirmed that, although no injuries were noted, the condition of the complainant’s
genitals was consistent with previous vaginal penetration.
[16] The other aunt of the complainant (not the mother of the cousins) also
testified. She confirmed that the complainant had during 2019 reported to her that
she had been raped by the appellant during the time that she had been staying at
her aunt and her cousins , when she was in Grade 1 . The version told to the aunt
was that the appellant would wake her up in the middle of the night when everybody
was asleep and get inside her blankets and have sexual intercourse with her and
when he was done, he would wipe her with a towel.
[17] The aunt then further testified that the complainant would thereafter come to
[17] The aunt then further testified that the complainant would thereafter come to
visit her on weekends but would refuse to go back to the other aunt. She also
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confirmed that the complainant had become “ a troublesome child ”, would wander
round at night and “would jump fences and just go away ”. Regarding the issue with
how the complainant’s mother had dealt with the situation, the aunt said that the
complainant “... would only visit me on weekends and I think it is because she
reported this to other people and did not get help. Even to her mother she reported.
She did not help her. So , I think that she just lost hope. Even looking at her, you
could see she no longer cares about anything, she has lost hope”.
[18] The complainant’s mother also testified. She confirmed the version of how the
complainant had reported the incidents to her and that she had beaten her daughter
with a belt because of it. She explained that when the cousins brought the
complainant to her in 2013, she said “I thought she was lying like any other child,
because I did not belie ve the aunt’s son would do that to her ”. She has now
subsequently come to believe her daughter.
The Appellant’s case
[19] The appellant, who was 18 years old in 2013 , denied the allegations . H is
principal defence, apart from denial of the accusations of sexual impropri ety or rape,
was that the complainant did not sleep in the same room as the cousins when
staying over at her aunt but that she slept in the kitchen. As to the version that the
complainant had told her cousin R[...] about the incidents, the appellant denied this
because when he had asked R[...] about it, R[...] purportedly said that “he does not
know anything ”. He also denied that R[...] would have told his mother (the aunt)
about the complaints.
[20] During cross -examination the appellant alleged that the motive for the
complainant and her mother to press charges against him in 2019 was “ because
they could see that I am about to complete my studies at college”. His second
proffered motive was that because the complainant got into trouble for being out at
proffered motive was that because the complainant got into trouble for being out at
night, she decided to accuse him. He suggested that she could have met “ other
boys” and speculated that this was her reason for her accusations against him.
[21] Based on the above evidence, it was argued on behalf of the appellant before
us that his version might reasonably possible be true.
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Evaluation
[22] On behalf of the appellant it was argued that he was not properly convicted on
the evidence of a single child witness. This argument is flawed in that the
complainant was no longer a child when she testified. She merely testified as an
adult about what had happened to her as a child.
[23] On behalf of the appellant it was also argued that a child witness could be
manipulated to falsely implicate a particular person as the perpetrator , thereby
substituting such a person for the real perpetrator.
[24] In this case however, there was no suggestion of any other perpetrator and
the issue of substitution did not arise.
[25] The appellant further relied on S v Tshabalala 5. This case however , while
repeating the principle that the guilt of the accused must be prove n beyond a
reasonable doubt, reiterated the correct approach to weighing up the evidence which
might point towards the guilt of the accused against those that are indicative of his
innocence, taking proper account of inherent strength and weaknesses of evidence,
probabilities and improbabilities on both sides and having done so to decide whether
the balance weighs so heavily in favour of the state as to exclude any reasonable
doubt.
[26] We find that the complainant, even as a child at the time and later as an adult,
had consistently repeated the same version regarding the appellant’s conduct. The
first report was to her cousin R[...], then she maintained her version to R[...]’s mother
(her aunt) and thereafter to her own mother. Even after the passage of years, the
version did not change when she told her sister and her other aunt and this
consistency continued in her evidence in court.
[27] On the other hand, the appellant’s version displays such unsatisfactory
features, that it cannot be accepted . Whilst he is perfectly entitled to maintain a bare
5 2003 (1) SA CR134 SCA.
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denial, if those were the facts, his reasoning as to why the complainant would
accuse him is nonsensical and must be rejected. The further unsatisfactory feature is
that, whilst legally represented, the appellant indicated that he would call his mother
(the complainant’s aunt) and his brother R[...] to testify to confirm his version. After
indicating to the court that a postponement would be necessary to call R[...] who was
then busy writing matric, the appellant did an about face and terminated his
counsel’s mandate. After having been warned about the dangers of doing so and
being reminded that he might be facing life imprisonment if convicted, the appellant
elected to proceed in person and closed his case stating “ I do not need witnesses
your worship. Can we proceed with the matter ?”. He maintained this stance despite
repeated warnings. admonitions and explanation of his rights by the magistrate.
Conclusion
[28] Regarding the conviction , on a conspectus of the evidence, and, insofar as
the complainant had been a single witness regarding the rape, we find that her
evidence was clear and satisfactory in every material respect, making it competent
for the court a quo to convict on her evidence. 6 We are therefore satisfied that the
learned magistrate had correctly accepted the complainant’s version and had
correctly found the appellant guilty
[29] The appeal against the conviction must therefore fail.
Ad Sentence:
[30] We had regard to a recent article dealing with the imposition of life sentences,
Sentencing Rape Offenders in south Africa: Recent Case Law 7 and the three
judgments of this Division mentioned therein 8 and considered whether the present
matter was one which justifies the imposition of a similar sentence.
[31] We find that the rehabilitation prospect of a youthful offender should count in
the appellant’s favour. Despite the heinousness of the crime, this was insufficiently
the appellant’s favour. Despite the heinousness of the crime, this was insufficiently
6 See: Section 208 of the CPA and S v Artman & Another 1968 (3) SA 339 SCA and S v Sauls 1981
(3) SA 172 (AD) at 180 E – F
7Le Roux-Bouwer PER/PELJ 2025 (28) DOI.
8 Sithole v S (A105/2021) [2024] ZAGPPHC 39 (18 January 2024), Masango v S (A175/2021) [2024]
ZAGPPHC 64 (5 February 2024) and Nyathi v S (A133/2020) [2024] ZAGPPHC 121 (6 February
2024).
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considered by the learned magistrate, resulting in a misdirection which entitles this
court to interfere with the sentence. In doing so, we find that there are sufficient
compelling circumstance to justify a deviation from the minimum sentencing regime
and that a life sentence is inappropriate and that a sentence of 25 years
imprisonment should be imposed.
[32] To the extent mentioned above, the appeal against the sentence is then
upheld.
Order
[33] In the premises the order of court is as follows:
1. The appeal against the conviction is refused.
2. The appeal against sentence is upheld and the life sentence imposed is
replaced with a sentence of 25 years imprisonment, antedated to 28
May 2024.
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
I agree
BMT MORE
Acting Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 19 August 2025
Judgment delivered: 10 October 2025
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APPEARANCES:
For the Appellant: Ms M M P Masete
Attorney for the Appellant: Legal Aid South Africa, Pretoria
For the Respondent: Adv A P Wilsenach
Attorney for the Respondent: The Director of Public Prosecution,
Pretoria