IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Not Reportable
Case no: A114/2025
In the matter between:
MASIXOLE BULAWA APPELLANT
and
THE STATE RESPONDENT
Coram: THULARE, J et COOKE, AJ
Heard: 31 October 2025
Delivered: 13 November 2025
ORDER
[1] The appeal is dismissed.
JUDGMENT
Cooke AJ (Thulare J concurring):
[1] This is an appeal against a conviction of rape and sexual assault. The
appellant was convicted in the Mitchell's Plain Regional Court of one count of sexual
assault, in contravention of section 5 of the Criminal Law (Sexual Offences and
Related Matters ) Amendment Act 32 of 2007, and three counts of rape, in
contravention of section 3 of the same Act, read with section 51(1) and Part 1 of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997.
[2] In relation to the four counts:
a. Count I concerned a charge of kissing and touching the complainant's
vagina without her consent;
b. Count 2 was in respect of a charge that the appellant inserted his
fingers into the complainant's vagina without her consent;
c. Under count 3 the appellant was charged wi th inserting his penis into
the complainant's mouth without her consent; and
d. Count 4 was for a charge of sexual penetration by the appellant
inserting his penis into the complainant's vagina without her consent.
[3] The appellant was sentenced to five years' direct imprisonment in respect of
the sexual assault charge, and life imprisonment as prescribed on each of the rape
charges. The sentences imposed on counts 1 - 3 were ordered to run concurrently
with the sentence imposed on count 4.
[4] Leave to appeal was denied against conviction and sentence on count 1 but
granted on petition on 27 February 2025. The appellant invoked his automatic right
of appeal in respect of counts 2 - 4 in terms of section 309 (l)(a) of the Criminal
Procedure Act 51 of 1997.
[5] It is common cause that the appellant and the complainant were, at one stage,
next door neighbours in Montclair, in the Mitchell's Plain area. At the time the
appellant was residing with his aunt, who lived adjacent to the complainant's family.
The complainant, who was 18 years old at the time of the trial, testified that when
she was about eight years old, the appellant committed various sexual offences
against her. It started with a kiss, then on the next occasion it progressed to the
touching of her vagina, whereafter the appellant made her perform fellatio. On a
subsequent occasion he penetrated her vagina with his fingers. Then, on a further
occasion, he had sexual intercourse with her on a beanbag under his aunt's carport.
The complainant testified that this was painful and caused her vagina to bleed.
Thereafter, in the words of the complainant 'the abuse continued every chance he
got', including further acts of penetration. The complainant also testified that from the
beginning, the appellant threatened to kill her and her parents should she mention
what had happened.
[6] It was only some years later that the complainant made a partial discl osure of
these events to her mother. On this first occasion, the complainant only mentioned
that the appellant had kissed her. She explained that she saw pain in her mother's
eyes, and this inhibited her from making any further disclosure at that time. A c ouple
of years after that first report the complainant's mother found her in the bathroom on
the floor trying to slit her wrist. The complainant was then referred to a psychologist.
But even then, she was afraid to talk about what happened. After being at a clinic for
a few weeks, the complainant came home intoxicated and, when confronted by her
mother, she burst into tears and told her mother that she had been raped by the
appellant.
[7] At the trial, the appellant testified that he was not residing in th e Montclair
area at the time of the alleged incident. According to the appellant, during 2011 -2012
he was living with an uncle in Vredendal, and then with his mother in Mfuleni.
Despite the trial being postponed to allow the appellant to call his mother as a
witness in support of this alibi, his mother did not give evidence. The court a quo
rejected the alibi defence, correctly in my view, and the appellant did not seek to
challenge this finding on appeal.
[8] The main ground of appeal was that the cour t a quo erred and misdirected
itself in accepting the evidence of the complainant, as her evidence was that of a
single child witness, and was not clear and satisfactory in every material respect. 1
This cautionary rule may be a guide to a right decision, b ut it does not mean that the
appeal must succeed if any criticism, however slender, of the witnesses' evidence
appeal must succeed if any criticism, however slender, of the witnesses' evidence
were well founded. The exercise of caution must not be allowed to displace the
exercise of common sense.2
1 See the cautionary rule described in R v Mokoena 1932 OPD 79 at 80.
2 Director of Public Prosecutions v S 2000 (2) SA 711 (T) at 714F-I.
[9] In oral argument the appellant's c ounsel contended that the second report to
the complainant's mother ('the impugned report') was not made freely and voluntarily
as the complainant had been intoxicated at the time and this 'outburst' followed a
reprimand by her mother. To my mind, the circ umstances surrounding the impugned
report do not detract from the evidence given by the complainant regarding the rape
and sexual assault. It does not follow from the mere fact that the complainant had
been drinking alcohol, that the report to her mother w as not made freely and
voluntarily. Furthermore, the impugned report was made after an earlier report where
a partial disclosure had been made by the complainant. In addition, after the
impugned report, the complainant's mother waited before taking the com plainant to
report the incidents to the police. According to the complainant 'I continued seeing
my psychologist till I was able to tell her my full story without a set of tears'. Viewed
as a whole, I consider that the complainant's conduct after the event supports her
testimony. It certainly does not provide a basis to discredit her testimony.
[10] Moreover, at the trial the appellant's legal representative did not put to the
complainant or her mother, that the impugned report had not been freely and
voluntarily made. Nor was this point argued in the court a quo. In the result, it is not
open to the appellant, for the first time on appeal, to argue that such a finding should
be made.3
[11] The appellant's counsel also placed reliance upon the fact that no
corroborating medical evidence relating to the complainant had been presented by
the State. Reliance was placed on the case of Ramulifho.4 It is correct that where
there is objective evidence provided by the medico legal examination of a
complainant, such evidence will be essential to determine where the truth lies
between competing versions. However, in circumstanc es where there is no such
between competing versions. However, in circumstanc es where there is no such
evidence, the mere absence of such evidence does not detract from the reliability of
the complainant's evidence. This is particularly so in a case such as this, where the
complainant was a young girl at the time of the incidents a nd she was threatened by
the appellant not to report the incident. In these circumstances, the complainant
3 See President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 (CC) at paras 59-65.
4 S v Ramulifho 2013 (1) SACR 388 (SCA) para 11.
cannot be criticised for not having reported the incidents immediately, nor for not
having sought a contemporaneous medical assessment.
[12] The appellant also submitted that the court a quo misdirected itself in respect
of the conviction for count 3 in that the complainant had not testified that the
appellant 'instructed' her to suck his penis, yet, according to the appellant, this was
the factual co nclusion reached in the judgment. Having regard to the age of the
complainant at the time, issues of consent are irrelevant. In any event, the word used
in the judgment of the court a quo was 'asked' not 'instructed'. Furthermore, the
evidence of the complainant showed that the accused had shoved her head towards
his penis, and he had told her to open her mouth. In the circumstances, I do not think
the court a quo made a material error in finding that the appellant had 'asked' the
complainant to suck his penis. Even if the appellant had not made an express
request, hi s conduct certainly made it clear that he was requiring, or at least
requesting, the complainant to perform fellatio.
[13] In all the circumstances I do not think that the court a quo erred and
misdirected itself in accepting the evidence of the complainant as admissible and
reliable.
[14] In my view it is also relevant that the complainant gave a false alibi. Where
there is direct evidence of the commission of an offence, as is the case in this matter,
the giving of the false alibi tends to strengthen the direct evidence, since there is no
testimony to gainsay it, and therefore less occasion or material for doubting it.5
[15] As regards the sentence, the appellant submitted that the sentence of life
imprisonment was shockingly disproportionate in respect of counts 2 and 3.
According to the appellant the court a quo overemphasised the seriousness of the
offences and overlooked the important element of mercy during sentencing.
[16] The appellant emphasised the following factors:
[16] The appellant emphasised the following factors:
5 S v Nkombani and Another 1963 (4) SA 877 (A) at 8930.
(a) he was only 19 years of age at the time of the alleged offences;
(b) he is a first offender and can be rehabilitated;
(c) there was no physical injury suffered by the complainant;
(d) the appellant spent three years awaiting finalisation of his trial;
(e) he was employed and had odd jobs at a carwash;
(f) he had a difficult childhood and no proper support structure; and
(g) he abused substances during this period of his life.
[17] As to the absence of physical injury, the complainant did testify that the first
rape caused her pain and vaginal bleedi ng. In any event, it was apparent from her
testimony that the offences caused her to suffer serious psychological and emotional
harm. The whole experience also damaged the relationship between the
complainant and her parents. She explained how her father h ad been her best friend
and hero, but now she was very angry with him as, in her mind, he failed to protect
her. In her Victim Impact Statement, the complainant stated that she lives in fear of
men. She has also suffered from depression and anxiety. She hated herself and tried
to take her life a couple of times. She was embarrassed and disgusted with herself.
In addition, she said that her childhood was stripped from her, and she was never
the same. The complainant will carry this trauma for the rest of her life.
[18] I do not consider that the factors relied upon by the appellant are so
exceptional as to amount to a substantial and compelling reason to depart from the
prescribed sentences.
[19] A court of appeal will not easily interfere with the senten ce. The test is
whether the sentence is vitiated by irregularity, misdirection or is disturbingly
inappropriate. 6 In my view, the court a quo did not commit any irregularity or
misdirection, nor was the sentence disturbingly inappropriate. Minimum sentence s
should not be departed from lightly or for flimsy reasons. These are the sentences
that ordinarily, and in the absence of weighty justification, should be imposed for the
specified crimes, unless there are truly convincing reasons for a different respons e.7
I do not consider that the appellant has provided 'weighty justification' or 'truly
convincing reasons' for a departure from the prescribed sentences, and I therefore
find that there is no basis to interfere with the sentence imposed by the court a quo.
[20] It is not without relevance that the appellant did not express any remorse for
his conduct. To the contrary he sought to mislead the court a quo by concocting a
false alibi.
[21] In Masiya8 the Constitutional Court observed that rape is less about sex and
more about the expression of power through degradation and concurrent • violation
of the victim's dignity, bodily integrity and privacy. In this matter the appellant
repeatedly abused the physical and social power that he held over the complainant,
as well as the respect she had for him. The appellant committed heinous offences
against a vulnerable child over an extended period. I agree with the respondent's
counsel that his conduct was 'predatory and escalated in severity'. The appellant's
exploitation of the most intimate parts of the complainant's body constituted an
abhorrent and grotesque violation of the complainant's human dignity. The sentence
given by the court a quo is, in my view, fitting.
[22] For all these reasons the appeal should be dismissed.
D COOKE
Acting Judge of the High Court
6 Manyaka v S (434/2020) [2022) ZASCA 21; 2022 (1) SACR 447 (SCA) (23 February 2022) para 57.
7 S v Ma lgas 2001 (2) SA 1222 (SCA) at para 25. See also S v Matyityi 2010 ZASCA 127; 2011 (I)
SACR 40 (SCA); [2010] 2 All SA 424 (SCA) at para 23.
SACR 40 (SCA); [2010] 2 All SA 424 (SCA) at para 23.
8 Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied legal Studies and
Another, Amici Curiae) 2007 (5) SA 30 (CC) para 78.
I agree
D THULARE
Judge of the High Court
Appearances
For appellant: P Andrews
Instructed by: Legal Aid South Africa- Cape Town
For first respondent: H van As
Instructed by: Director of Public Prosecutions - Cape Town