In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: A225/2025
In the matter between:
SONGEZO WULANA APPELLANT
And
THE STATE RESPONDENT
Neutral citation: State v Wulana (Appeal Case no A04/2025) [2025] ZAWCHC ... (2
January 2025)
Coram: LEKHULENI Jet DAVIS AJ
Heard: 28 November 2025
Delivered: 2 January 2026
Summary: Criminal Law: Rape of 11-year-old girl - Life sentence imposed by trial
court - Appeal against conviction and sentence - Evidence of child witness to be
approached with caution - guilt of accused proven beyond a reasonable doubt -
Appellant's version implausible-Appeal on sentence- Section 51(3) of Criminal Law
amendment Act 105 of 1997- No compelling and substantial circumstance proven -
Appeal on conviction and sentence dismissed.
JUDGMENT
LEKHULENI J (DAVIS AJ Concurring)
Introduction
[1] This is an appeal against the conviction and life sentence imposed on the
appellant by the Parow Regional Court. The appellant, who was legally represented
at the trial, was convicted by the Parow Regional Court on 17 October 2024 on one
count of sexual penetration in violation of section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007. At the commencement of
the trial, the appellant pleaded not guilty and exercised his right to remain silent. Before
the trial could commence, the sentencing provisions envisaged in section 51 (1) of the
Criminal Law Amendment Act 105 of 1997 and the relevant competent verdicts in
terms of section 256 of the Criminal Procedure Act 51 of 1977 ('the CPA? were
explained to the appellant, who understood.
[2] The State alleged that the appellant was guilty of the crime of contravening the
provisions of section 3 of the Criminal Law Amendment Act (Sexual Offences and
Related Matters) 32 of 2007 read with the provisions of section 51(1) of Scheduled 2
Part 1 of the Criminal Law Amendment Act 105 of 1997 as amended in that on or
about the period of October and November 2022 and at or near Delft in the Regional
Division of the Western Cape, the appellant did unlawfully and intentionally commit an
act of sexual penetration with a female person to wit, MG an 11 year old girl by
inserting his penis into her vagina on more than one occasion.
[3] The prescribed minimum sentence in terms of the Criminal Law Amendment
Act 105 of 1997 for the charge levelled against the appellant was life imprisonment
because the complainant was a child under the age of 18 years at the time the alleged
offence was committed. At the conclusion of the trial, the Regional Magistrate
convicted the appellant of the charge of rape and found no substantial and compelling
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circumstances meriting a deviation from the prescribed minimum sentence. The
Regional Magistrate imposed a sentence of life imprisonment as envisaged in section
51 ( 1) of the Criminal Law Amendment Act 105 of 1997 and further made relevant
ancillary orders.
[4] In terms of section 103(1)(g) of the Firearms Control Act 60 of 2000, the trial
court declared the appellant unfit to possess a firearm. The court also made an
ancillary order in terms of section 50(2)(a) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007. It directed that the appellant's name be
entered in the Sexual Offences Register. In addition, the court made an order in terms
of section 120 of the Children's Act 38 of 2005 that the appellant is unsuited to work
with children.
[5] Aggrieved by this decision, the appellant exercised his automatic right of appeal
in terms of section 309(1 )(a) of the CPA, seeking a reversal of the conviction and
sentence imposed by the court below. In the appeal grounds, the appellant asserted
that the Regional Magistrate misdirected herself in finding that the State had
discharged its onus and proven the guilt of the appellant beyond a reasonable doubt.
The appellant also contended that the court a quo erred in failing to find substantial
and compelling circumstances warranting a deviation from the prescribed minimum
sentence. The appellant seeks an order from this court setting aside his conviction
and the resultant sentence.
Background Facts
[6] To fully comprehend the pertinent issues that must be determined in this appeal
and the view I take in this matter; it is necessary to sketch out a brief background of
the facts underpinning the reasons that fortify my conclusion. The State called four
witnesses to prove the appellant's guilt beyond a reasonable doubt. The appellant
testified and did not call any witnesses in his defence. Several documentary exhibits,
including a medical expert report, the appellant's warning statement, the complainant's
including a medical expert report, the appellant's warning statement, the complainant's
birth certificate, and presentence reports, were admitted into evidence at the trial. To
the extent necessary, I will summarise the evidence led at the trial and not repeat the
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evidence verbatim. Where necessary, I will refer to the exhibits admitted at the court
below.
[71 The State tendered the complainant's evidence as its first witness. According
to her birth certificate, marked as Exhibit B at the trial, the complainant was born on
20 July 2011. At the time of giving evidence, the complainant was 12 years old and in
Grade 5. The court was held in camera, and the complainant testified through an
intermediary in terms of section 170A of the CPA and via closed-circuit television. In
summary, the complainant testified that she had known the appellant since she was
young, as he was their neighbour. The appellant's house is opposite theirs. The
witness stated that during October 2022, on a Sunday, her mother went to church, and
she was at home with her little sister. The appellant called her to his house and sent
her to buy a cool drink.
[8] The complainant went to the shop and, on her return, entered the appellant's
house. She gave the appellant the change, and subsequently, the appellant closed
the door and threw her on his bed. The appellant caused the complainant to lie on her
back. The appellant undressed her and put his hand over his mouth not to make a
noise. The appellant undressed himself from the bottom and penetrated her vagina.
When he was done, he gave her R20. The complainant testified that she told the
appellant she would report the incident to her mother. In reply, the appellant informed
her that he would deny it and say it never happened. When he was done, the appellant
gave her R20 and told her to leave. The complainant took the R20 and went to buy
chips. She did not tell anyone about the incident because she was scared.
[9] The complainant explained that a similar incident happened on the following
Monday and Tuesday. On a Monday, directly after the Sunday of the previous incident,
she was home from school, and there was no one at her house. After changing her
school uniform, the appellant called her and sent her to buy something at the shop.
school uniform, the appellant called her and sent her to buy something at the shop.
She went to the shop and, on her return, gave the appellant change; the appellant
then closed the door and threw her onto the bed. The appellant closed her mouth and
undressed her from the waist down, including her panties. The appellant undressed
himself and penetrated her vagina. After he was done, he gave her R20. She left and
went to buy chips with her friends.
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[1 OJ The complainant explained that a similar incident occurred on a Tuesday
following the Monday. She came home late at 18h00 and took off her netball gear. The
appellant called her, and she went to him. The appellant asked her to buy him an
avocado. Indeed, she went. On her return from the shop, the appellant came from
behind her and closed the door. The appellant threw her on his bed, undressed, and
caused the complainant to lie on her back and thereafter inserted his penis into her
vagina. When he was done, he told the complainant to leave and gave her R20 again.
The complainant left and went to buy chips with the R20. The complainant stated that
she went to the appellant's house on the subsequent Monday and Tuesday because
she wanted money.
[11] The complainant mentioned that during November 2022, her father confronted
her about sleeping with the appellant. After he became upset and threatened her with
a hiding, the complainant told her father what had happened. She admitted that she
was sleeping with the appellant. They then proceeded to the appellant's house, where
the appellant was confronted. The appellant denied raping the complainant. The
complainant's father wanted to assault him, and people intervened. Thereafter, they
went to the police station, where a charge of rape was laid. The complainant was taken
to the hospital, where a doctor examined her.
[12] During cross-examination, she maintained that the appellant raped her. She
also stated that she took the R20 that the appellant gave her as she was desperate
for it. She wanted to buy chips for herself. There was a time when her mother was not
working, and she could not afford to buy chips. When she was asked why she went
again to the appellant's house despite the previous ordeal, she testified that she
wanted the R20. The witness also rejected the proposition that she asked the appellant
to have sex with her.
[13) The complainant's father also testified. He testified that it was brought to his
[13) The complainant's father also testified. He testified that it was brought to his
attention that his daughter was sleeping with an older man. He then confronted the
complainant and asked her if she knew the appellant. The latter became anxious,
started shaking, and cried. The witness implored the complainant to tell the truth and
that if she lied, she would get a hiding. The complainant then said to him that she had
slept with the appellant. Thereafter, they proceeded to the appellant's house, and he
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confronted the appellant on these allegations. The appellant admitted that he had sex
with the complainant and further stated that the complainant was his girlfriend. The
appellant further stated that their relationship started in 2021 . The complainant's father
further testified that the appellant disputed that he gave the complainant R20. Instead,
the appellant told him that he gave the complainant R200. There were community
members at the scene, and he decided to proceed to the police station with the
complainant, where a charge of rape was laid.
[14] He was cross-examined, and it was put to him that his version of the
confrontation of the appellant does not accord with that of the complainant and that
the appellant denies that he admitted to having sex with the complainant. In response,
he stated that the appellant told him the complainant was his girlfriend. Their
relationship started in 2021, and he even gave the complainant R200.
[15] Doctor Felix, who examined the complainant after the rape charge was laid,
also testified. He was stationed at Tutuzela Care Centre, Karl Bremer Hospital, at the
time he examined the complainant. Dr Felix testified that he examined the complainant
on 13 November 2025, and his findings were contained in the J88 medico-legal report
marked Exhibit A during the trial. In his gynaecological examination of the complainant,
he found that the complainant had a cleft at 08 o'clock, which is indicative of blunt
object penetration, such as penetration by a penis or blunt object. According to the
doctor, clefts at 9 o'clock or 3 o'clock are usually associated with sexual offences in
children.
[16] The appellant's attorney cross-examined him. During cross-examination, it was
proposed to him that the cleft could have been caused by the complainant when she
was inserting a tampon. The doctor disputed this proposition and asserted that this
suggestion does not make sense, as that would have caused the complainant
suggestion does not make sense, as that would have caused the complainant
significant pain. Furthermore, the doctor asserted that it was improbable that the child
complainant would want to increase or cause herself significant pain by putting her
fingers into her genitals.
[17) The state called the Investigating officer, Sergeant Ntswakele Masuhlo, who
took the warning statement marked exhibit C at the trial from the appellant after he
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was arrested. Sergeant Masuhlo testified that she took the warning statement from the
appellant on 14 November 2022 at Delft Police Station. According to her, she used the
Xhosa language to communicate with the appellant when she took the warning
statement from him. Her testimony was that before she could take the warning
statement from the appellant, she informed the appellant of his constitutional rights,
including the right to remain silent and not say anything.
[18] The witness stated that she informed the appellant that if he decides to make
the statement, she will write it down and submit it to the court, and that it may be used
against him in court. Notwithstanding her explanation, the appellant chose to make a
statement. The witness took the appellant's statement in writing. Sergeant Masuhlo
testified that after taking the statement, she read it back to the appellant and asked
whether he was satisfied with it or wanted to make any corrections. The appellant was
happy with the statement and signed it.
[19] In summary, the relevant part of the warning statement was that in September
2022, the complainant came to the appellant's house to borrow the public toilet keys.
She was wearing a gown, and it was approximately 12:00 during the day. The
complainant went to the toilet and came back in a few minutes. The appellant stated
that he was lying on his bed and the complainant came closer to his bed, took off her
gown, and the appellant noticed that the complainant was naked. The complainant
asked him that they should have sex. The appellant then told the complainant that he
could not do that because she looked young. In response, the complainant told him
that she's not young, but she has many boyfriends and that the appellant would not
be the first one to have sex with her.
[20] They then had consensual sex. He stated in the warning statement that he
never called her to come to his house, and she used to go on her own. The appellant
never called her to come to his house, and she used to go on her own. The appellant
also stated in the warning statement that they had sex more than once in September
and in November 2022. He never forced the complainant to have sex with him.
According to him, the complainant is his girlfriend who will visit him at his house, and
they will have sex.
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[21) During cross-examination, Sergeant Masuhlo clarified the fact that she
interviewed the appellant in Xhosa but wrote the statement in English. According to
her, the appellant also understood English. She read the statement back to the
appellant, and the latter signed it after being satisfied with its contents.
[22] The Accused also testified. He knows the complainant and her parents. The
appellant stated that he had known the complainant since 2018. According to the
appellant, in October 2022, he sent the complainant to the shop to buy a cool drink.
The complainant went to the shop and did not return. As time passed, he wondered
where the complainant was and eventually decided to go to the complainant's house.
When he arrived at her house, he saw the cool drink on the table, and the
complainant's family were drinking from it. When he questioned the complainant about
what happened, the complainant's mother said they should pour him a glass too. They
then poured a drink for him, and he took the glass of cool drink and went back to his
place.
[23] On a specific weekend at 12h00 during the day, the complainant came to
borrow the toilet key from him and propositioned him for sex. She was wearing a pink
gown. The complainant removed her gown and entered his bedroom. The complainant
got onto his bed and put her hand in front of his pants under his underwear. He then
got up and told the complainant that he cannot have sex with children and that he has
a girlfriend who can come at any time to him. The complainant asked him for R20, and
he told her he did not have it. Later, the complainant left, and he got off the bed. The
witness denied raping the complainant.
[24] He was cross-examined about his warning statement, and he denied making
the statement as alleged by Sergeant Masuhlo. However, he admitted to furnishing
non-incriminating information in the statement. The appellant suggested during cross
examination that the charge against him was lodged to get him arrested so that the
examination that the charge against him was lodged to get him arrested so that the
complainant's mother could take his house.
8
The findings of the trial court
[25] After considering the conspectus of the evidence, the trial court made
favourable credibility findings regarding the evidence of the complainant, who was a
child and a single witness on the alleged rape. It held that the complainant and her
father gave credible and reliable evidence to the court about what had transpired from
the time the complainant was confronted by her father and the explanation she gave
in court on the alleged rape. The trial court found that the complainant's version was
credible and trustworthy and was corroborated by her father's evidence and the
appellant's warning statement. The court also found that the warning statement was
properly taken with the appellant's cooperation and accepted it as evidence against
the appellant.
[26] To the contrary, the court found the appellant's version, that the complainant,
an 11-year-old child, placed her hand in his pants under his underwear, was false. The
court found the appellant's response during cross-examination about his actions when
the complainant allegedly placed her hand in his pants to be startling. The court found
that on the totality of the evidence, the appellant's version that he did not sexually
abuse the complainant was not reasonably possibly true. In addition, the court found
that the appellant wanted to create an impression that the complainant, an 11-year
old, was dominating him by offering him sex. In the court's view, it was not reasonably
possible that a child of 11 years of age dominates the space of an adult person of 43
years of age.
The grounds of appeal
[27] The appellant raised various grounds of appeal on conviction and sentence.
The grounds of appeal as discernible from the notice of appeal may, in a nutshell, be
summarised as follows:
[28] The trial court erred in finding that the State had proved the appellant's guilt
beyond a reasonable doubt. The court a quo erred in finding that the complainant's
beyond a reasonable doubt. The court a quo erred in finding that the complainant's
evidence was credible and reliable in all material respects despite the fact that the
complainant was a single witness and a child witness in respect of the charge of rape
9
upon which the appellant was convicted. The court a quo erred by failing to approach
the complainant's evidence with the necessary caution it deserved and by finding that
it met the requirements of section 208 of the CPA.
[29) The court a quo erred in finding that the complainant's evidence was a clear
and concise narrative despite the fact that she indicated on the first day that the
appellant overpowered her as she was afraid of him, yet she returned to the home of
the appellant for another two consecutive days, wherein she did not fight at all. The
court erred in rejecting the appellant's version as not reasonably possibly true.
[30] Regarding the sentence, the appellant contended that the trial court failed to
consider the appellant's personal circumstances . The appellant further contended that
the Regional Magistrate erred by failing to find any substantial and compelling
circumstances to deviate from the prescribed minimum sentence of life imprisonment.
The trial court erred by failing to consider the possibility of reformation and
rehabilitation.
Applicable legal principles
[31] It is settled law that in a matter such as the present, this court's powers to
interfere on appeal with the findings of fact of the trial court are limited in the absence
of demonstrable and material misdirection. Where there is no misdirection on the facts,
the presumption is that its findings are correct, and the appellate court will only
interfere with them if it is convinced that they are wrong. This principle was restated in
S v Jochems 1991 ( 1) SACR (A) at 211 E-G as follows:
"It is a time-honoured principle that once a trial court has made credibility findings, an
appeal court should be deferential and slow to interfere therewith unless is convinced
on a conspectus of the evidence that the trial court was clearly wrong. R v Dhlumayo
and Another 1948(2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310 (SCA)
para 12. As the saying goes, he was steeped in the atmosphere of the trial. Absent any
para 12. As the saying goes, he was steeped in the atmosphere of the trial. Absent any
positive finding that he was wrong, this court is not at liberty to interfere with his
findings."
10
[32] In Minister of Safety and Security & others v Craig & others NNO 2011 ( 1 )
SACR 469 (SCA) para 58, Navsa JA stated that although courts of appeal are slow to
disturb findings of credibility, they generally have greater liberty to do so where a
finding of fact does not essentially depend on the personal impression made by a
witness' demeanour, but predominantly upon inferences and other facts and upon
probabilities. In such a case a court of appeal with the benefit of a full record may often
be in a better position to draw inferences.
Submissions by the parties
[33] At the hearing of this appeal, Mr Sivnarain, who appeared for the appellant,
submitted that at the time of the incident, the complainant was 11 years old. In
counsel's view, a child of that age is easily impressionable and influenced. Mr
Sivnarain submitted that when the complainant was confronted by her father, she
could have said that she was raped out of fear of getting a hiding. Moreover, Mr
Sivnarain asserted that, when questioned about whether anyone had done anything
to her, the complainant responded that no one had. Regarding the appellant's
evidence, the appellant's counsel submitted that the appellant tendered his evidence
in a clear and concise manner and did not contradict himself in any way. Furthermore,
Mr Sivnarain contended that the state had failed to prove its case beyond a reasonable
doubt due to material contradictions in its case and therefore, the conviction should be
set aside.
[34] On the other hand, Mr Snyman, the State's legal counsel, argued that the court
a quo correctly weighed up the complainant's evidence and found her to be a credible,
reliable, and honest witness. Mr Snyman further submitted that the appellant's version
falls to be rejected. According to Mr Snyman, two state witnesses testified that the
appellant admitted to having sex with the complainant. The appellant further admitted
to having the complainant naked on his bed. Mr Snyman submitted that the appellant
to having the complainant naked on his bed. Mr Snyman submitted that the appellant
adapted his version as the trial progressed. In his view, the trial court analysed and
weighed the evidence of the State and the appellant in line with established legal
principles and accordingly rejected the appellant's version. Mr Snyman implored this
court to dismiss the appeal both on conviction and sentence.
11
Discussion
Ad Conviction
[35] Against this backdrop, I turn to evaluate the merits of this appeal on conviction.
The issue for determination in this appeal is whether the appellant's guilt was
established beyond a reasonable doubt.
[36] It is well established in our law that the duty to prove an accused's guilt rests
fairly and squarely on the shoulders of the State. The accused need not assist the
State in any way in discharging this onus. ( S v Mathebula 1997 ( 1) SACR 10 (W) ). In
assessing whether the State has discharged the onus of proving its case against the
accused beyond a reasonable doubt, it must consider all the evidence in concluding
whether to convict or acquit an accused. In other words, a court's conclusion must
account for all the evidence presented before it. ( S v Van der Meyden 1999 ( 1) SACR
447 (WLD) at 449h).
[37] The complainant was both a child witness and a single witness in this case.
She was 11 years old at the time of the alleged offense and was 12 years old when
she testified at the trial. Her evidence was given through an intermediary in terms of
section 170A of the CPA. As a single witness, the complainant's evidence had to either
be: (a) substantially satisfactory in every material respect, or (b)
corroborated. (Phogole v The State (370/2023) [2024) ZASCA 54 (9 May 2025)) para
77. Her evidence had to be approached with caution. In S v Webber 1971 (3) SA 754
(A) at 758F-H, the court held:
'A conviction is possible on the evidence of a single witness. Such witness must
be credible, and the evidence should be approached with caution. Due
consideration should be given to factors which affirm, and factors which detract
from the creditability of the witnesses. The probative value of the evidence of a
single witness should also not be equated with that of several witnesses.'
12
[38] Our court have stressed the fact that it is not possible to prescribe a formula in
terms whereof every single witness' credibility can be determined, but it is essential to
approach the evidence of a single witness with caution and to weigh up the good
qualities of such a witness against all the factors which may diminish the credibility of
the witness. (see S v Sauls 1981 (3) SA 172 (A) at 180E-H).
(39] Section 208 of the CPA provides that an accused person may be convicted of
any offence on the single evidence of any competent witness. As stated above, the
testimony of a single witness should be clear and satisfactory in all material aspects.
The exercise of caution against such evidence must not be allowed to displace the
exercise of common-sense. (S v Artman and Another 1968 (3) SA 339(SCA)).
(40] As correctly pointed out by Mr Snyman, the trial court was faced with two
mutually destructive versions of two single witnesses based on the evidence of the
complainant and the appellant. In S v Kotze (776/16) [2017] ZASCA 27 (27 March
2017) para 17, the court stated as follows regarding mutually destructive versions:
'Where a trial court is faced with two mutually destructive accounts, logic dictates that
'both cannot be true. Only one can be true. Consequently the other must be false.
However the dictates of logic do not displace the standard of proof required either in a
civil or criminal matter. In order to determine the objective truth of the one version and
the falsity of the other, it is important to consider not only the credibility of the witnesses,
but also the reliability of such witnesses. Evidence that is reliable should be weighed
against the evidence that is found to be false and in the process measured against the
probabilities. In the final analysis the court must determine whether the State has
mustered the requisite threshold proof beyond reasonable doubt.'
[41] In this case, it is common cause that the appellant and the complainant knew
[41] In this case, it is common cause that the appellant and the complainant knew
each other. The two are neighbours. It is also common cause that the complainant's
vagina was penetrated by a blunt object. The evidence of Doctor Felix corroborates
the version of the complainant that she was penetrated in her vagina by a blunt object.
The complainant pointed at the appellant as the person who raped her. The appellant
denied that he raped the complainant and, in fact, asserted that nothing happened
between them. The trial court rejected this version as false and found that the state
13
proved its case beyond a reasonable doubt. For the reasons that follow, I am of the
view that the findings of the trial court are correct and unassailable.
[42] It is important to stress that the complainant's evidence must not be assessed
in isolation. It must be assessed together with the evidence of the accused and the
other state witnesses. The appellant's evidence largely corroborates the complainant's
version. The complainant's evidence was that the appellant sent her to the shop to
buy a cool drink, and on her return, the appellant locked her inside his room and raped
her. On the other hand, the appellant's version is that he sent the complaint to the
shop to buy a cool drink, and that the complainant did not return to his house to bring
it.
[43] The complainant stated that after the rape, the appellant gave her R20. The
appellant, on the other hand, stated that he gave the complainant R20, which he
alleged was borrowed by the complainant's mother. From the two versions, the fact
that the appellant sent the complainant to the shop to buy a cool drink, and the
exchange of R20, corroborate the complainant's version.
[44) Furthermore, it is common cause that at some point, the complainant and the
appellant were in bed together, with the complainant naked. According to the
appellant, the complainant approached him and asked him to have sexual intercourse
with him. The complainant found him in bed, she undressed herself and got in bed
with him. While in bed, the complainant placed his hand inside the front of his pants
under his underwear. The appellant's version in this regard is very suspicious and
highly concerning. It must be borne in mind that the complainant was a vulnerable
child, and the appellant was 43 years old.
[45] From his version, it is not clear why he allowed the complainant to climb into
his bed and sleep with him under the duvet while she was naked. The complainant is
an 11-year-old child and could be the appellant's child. According to his version, the
an 11-year-old child and could be the appellant's child. According to his version, the
appellant allowed the complainant, young as she was, to insert her hand in his private
parts. If this version is accepted, surely this is an abhorrent act that an elderly person
in the appellant's position would have rebuffed with disdain and called the complainant
to order.
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[46] Importantly, this version was not put to the complainant during cross
examination. The appellant adapted his version during his evidence in chief and during
cross-examination. In my view, this version is implausible, does not make sense at all,
and the court below was correct in rejecting it.
[4 7] What compounds the difficulty in the appellant's version is that, notwithstanding
that he knew the complainant's mother, who is his neighbour, he did not tell her of the
alleged proposition of the complainant. This, in my view, is a clear indication that that
never happened and that the appellant fabricated his evidence. From the totality of the
evidence, it is very clear that the appellant took advantage of the complainant and her
poverty. He groomed the complainant by giving her money after having sex with her.
The complainant kept quiet and did not tell her parents because she was benefiting
financially from the abuse. She was keen to receive the R20 that the appellant gave
her each time the appellant had sex with her. She was able to buy chips for herself
and her friends with the money that she received from the appellant.
[48] It must be stressed that the complainant was an 11-year-old child at the time of
the incident. She was vulnerable and defenceless. She was lured and enticed by the
R20 she received from the appellant, and she returned to him in the subsequent days.
In my view, the court below was correct in not making any adverse finding on the
conduct of the complainant for going to the appellant on the second and third
occasions after the first rape. In S v D 1995 (1) SACR 259 (A) at 260G-H, the Supreme
Court of Appeal noted that children are vulnerable to abuse, and the younger they are,
the more vulnerable they are. They are usually abused by those who think they can
get away with it, and all too often do.
[49] As discussed above, the court a quo admitted the appellant's warning
statement as evidence against the appellant. It is interesting to note that the admission
statement as evidence against the appellant. It is interesting to note that the admission
that the appellant made in the warning statement accords with the evidence of the
complainant's father. When the complainant's father confronted the appellant about
the alleged sexual abuse, the father testified that the appellant informed him that the
complainant had been his girlfriend since 2021. Interestingly, in his warning statement,
the appellant told the investigating officer that the complainant was his girlfriend, and
15
they had consensual sex in September and November 2022. In other words, from the
evidence presented, the appellant admitted before two independent witnesses who
are not related to each other that the complainant was his girlfriend. It appears that the
appellant was unaware, when he made the warning statement, that the complainant
was too young to give valid consent. He would likely have been made aware by his
legal representative, which likely explains his altered version at the trial, when he
denied having had intercourse with the complainant.
[50] The appellant assailed the warning statement that he gave to the investigating
officer. Significantly, it is not in dispute that his rights were explained to him when the
statement was taken. After his rights were explained, the appellant chose to make a
statement. The statement was given in Xhosa, and the investigating officer reduced it
to writing in English. The appellant contended that he is Xhosa-speaking and does not
understand English. According to him, the admissions that he made in the warning
statement as discussed in paragraphs 19 and 20 above, did not come from him. In my
view, the warning statement is so detailed that it would be inconceivable to suggest
that the investigating officer concocted a version which implicates the appellant.
[51) The investigating officer made it clear in her evidence in chief and in cross~
examination that, after taking the warning statement, she read it back to the appellant,
who understood, indicated that he was satisfied with its contents, and thereafter signed
it. As correctly observed by the court a quo, there is no way that a police officer who
does not know the appellant and the complainant would fabricate such a statement
that would implicate the appellant adversely.
[52] Most importantly, the version in the warning statement aligns with the version
given by the appellant in court, except for the penetration part. This is clearly
given by the appellant in court, except for the penetration part. This is clearly
something the investigating officer could not have made up. Save for the fact that the
warning statement was admitted by the court when it gave judgment on the merits, it
is my firm view that the court a quo was correct in accepting the warning statement
against the appellant, which the appellant clearly made freely and voluntarily.
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[53] The appellant raised inconsistencies in the state's case and submitted that they
indicate the complainant was untruthful. For instance, one of those discrepancies was
that the complainant testified that her mother left home with her sister, but later in
cross-examination stated that her sister was playing away with friends. I have also
noted other discrepancies raised by the appellant in his grounds of appeal. However,
I am of the view that those contradictions are immaterial. They do not go to the heart
of what happened to the complainant. It is important to remind ourselves that
contradictions, per se, do not lead to the rejection of a witness' evidence.
[54] Furthermore, not every contradiction or error made by a witness unfavorably
affects their overall credibility. ( S v Oosthuizen 1982 (3) SA 571 (T)). In each case, the
court must consider the nature of the contradictions, their number and importance and
their bearing on the parts of the witness' evidence. In my view, these discrepancies
are immaterial and do not discount the reliability and credibility of the complainant. In
my judgment, the complainant was a candid and truthful witness, and the record
certainly lends credence to that conclusion. Her version was corroborated by all the
State witnesses and, to a great extent, by the appellants' version. She stated that the
appellant raped her almost two weeks before the doctor examined her. The doctor
confirmed that the complainant was penetrated with a blunt object in her vagina, and
he observed a cleft on the vagina, which is a healed tear.
[55] The healed tear accords with the complainant's version. It cannot be reasonably
suggested that the complainant was influenced to bring a case against the appellant.
The evidence proved beyond any reasonable doubt that the appellant rape the
complainant. Consequently, I am satisfied that the trial court's finding that the state
proved the guilt of the appellant beyond a reasonable doubt was correct and should
proved the guilt of the appellant beyond a reasonable doubt was correct and should
not be purged. Furthermore, I am of the firm view that the appellant's version was
implausible, and the court a quo was correct in rejecting it as false.
Ad sentence
(56) As far as the appeal on the sentence is concerned, it is trite law that sentencing
is pre-eminently a matter of the trial court's discretion. Interference with a sentence on
appeal is not justified in the absence of a material misdirection or irregularity, or unless
17
the sentence imposed is so startlingly inappropriate as to create a sense of shock. ( S
v Moosajee [1999] 2 All SA 353 (A), para 8). Thus, an appeal court will only interfere
with a sentence on appeal if it appears that the trial court has exercised its discretion
in an improper or unreasonable manner. S v Gerber [1998) 4 All SA 315 (NC).
[57] In the present matter, the essential enquiry is whether the court a quo in
imposing the sentence of life imprisonment had exercised its discretion judicially and
properly. It was argued on behalf of the appellant that the trial court failed to consider
the personal circumstances of the appellant properly and erred by failing to find
substantial and compelling circumstances to deviate from the prescribe sentence of
life imprisonment.
[58) The personal circumstances of the appellant were succinctly set out in the pre
sentence report of the Probation Officers and the Correctional Officers' report. The
appellant was 43 years old, not married and had four children from different
relationships. The children are 4, 18, 20 and 22 years old respectively. The appellant
is not the children's primary caregiver. Three of the children are adults. The minor child
resides with her maternal family. The appellant was not married but had a life partner.
The appellant was raised by his maternal grandfather as his father was working in
Johannesburg. The appellant met his father for the first time when he was 15 years
old. The appellant was employed at Kensington Zabbus Distribution for more than 6
years as an assistant truck driver. He earned R1250 per week. He supported his four
children by paying R1000 per child per month. The appellant passed standard 6. He
reported that he suffered from ill-health and had severe headaches and eye problems,
which led him to abandon school.
[59] In her pre-sentence report, the probation officer recommended that the court
consider sentencing the appellant to direct imprisonment in terms of section 276(1 )(b)
of the CPA.
of the CPA.
[60) Section 51(3) of the Criminal Law Amendment Act 105 of 1997 demands the
imposition of the prescribed minimum sentences unless a court is satisfied in a
particular case that there are 'substantial and compelling circumstances' that justify
the imposition of a lesser sentence. In the present matter, I am mindful of the
18
accused's personal circumstances. However, I hold the view that the sentence
imposed by the trial court is unimpeachable. The appellant raped an innocent child
who looked to him for protection. The appellant betrayed the trust that the complainant
had in him. He groomed her by giving her R20 instead of protecting her. As the
Probation Officer correctly observed, the complainant is a minor and therefore had no
defence protecting herself against a male adult. The Probation Officer further
submitted that in the light thereof that the appellant abused his power and is still not
taking responsibility for the commission of the offence, as well as the pain and suffering
the complainant suffered, the court should impose a stiff sentence to send out a clear
message that this kind of behaviour towards children will not be tolerated.
[61] Crucially, in S v Vilakazi 2009 (1) SACR 552 (SCA) para 58, the Supreme Court
of Appeal held that in cases of serious crime, the personal circumstances of the
offender, by themselves, will necessarily recede into the background. The court held
that once it becomes clear that the crime is deserving of a substantial period of
imprisonment, the questions whether the accused is married or single, whether he has
two children or three, whether or not he is in employment, are in themselves largely
immaterial to what that period should be, and those seem to be the kind of 'flimsy'
grounds that S v Ma/gas 2001 (1) SACR 469 (SCA) said should be avoided. But they
are nonetheless relevant in another respect.
[62] I have considered the personal circumstances of the appellant, the possibility
of rehabilitation, the victim impact statement of the complainant, and I cannot find any
misdirection in the sentence imposed by the trial court. Furthermore, I must emphasise
that the appellant was convicted of rape of a helpless 11-year-old child, which attracted
life imprisonment. Upon conviction on this count, the court a quo was bound to impose
life imprisonment. Upon conviction on this count, the court a quo was bound to impose
the prescribed sentence unless there were substantial and compelling circumstances
warranting a deviation from it. There were none. To the contrary, there are serious
aggravating factors that militate against deviating from the prescribed minimum
sentence.
[63) A final aspect requires comment. The trial court admitted the warning
statement of the appellant when it gave judgment on the merits. To the extent that the
appellant impugned the contents of the warning statement, the admissibility of that
19
statement, in my view, should have been dealt with before the closure of the state's
case to enable the defence to mount its defence accordingly. In S v Molimi 2008 (2)
SACR 76 (CC) paras 41 and 42, the Constitutional Court held that a timeous and
unambiguous ruling on the admissibility of evidence in criminal proceedings is a
procedural safeguard. The court held that when a ruling on admissibility is made at the
end of the case, the accused will be left in a state of uncertainty about the case he is
expected to meet and may be placed in a precarious position of having to choose
whether to adduce or challenge evidence.
[64] This notwithstanding, in my view, the guilt of the appellant was proven beyond
a reasonable doubt, even without the appellant's warning statement.
[65] In the final analysis, given all these considerations, I am of the view that the
appeal on both conviction and sentence must be dismissed.
Order
[66] In the result, the following order is granted.
66.1 The appeal on both conviction and sentence is hereby di$.mis.s~d, ___ _ ,,,..------· ~ ... _
I agree:
I
~-_,,. ,---___
Ll;KHULENI JD
G&DE.ll:IEJilGH COURT
- ~ ........ "
)/ ~-- DAVIS D _)
ACTING JUD~f:HIGH COURT
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APPEARANCES
For the Appellant: Mr Sivnarain
Instructed by: Legal Aid South Africa
For the Respondent (State): Mr Snyman
Instructed by: Director of Public Prosecutions
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