IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case Number: CA&R 52/2025
In the matter between:
LESLEY MEINTnES Appellant
and
THE STATE Respondent
Coram: Tlaletsi JP et Lever J
Heard: 23 February 2026
Delivered: 24 February 2026.
ORDER
1) The convictions in the court a quo on two counts of rape is set aside and
replaced with a conviction on a single count of rape.
2) The sentence in respect of the two counts of rape is set aside and the matter
is referred back to the trial magistrate for sentencing proceedings.
JUDGMENT
Lever J
1. This is an appeal against a conviction on two counts of rape in the regional
court for the regional division of the Northern Cape held at Kimberley. The
appellant applied for and was granted leave to appeal by the learned trial
magistrate. However, the appellant was only granted leave to appeal on a
single narrow ground only. Mr Mafaro, who appeared for the appellant
conceded that there had been no petition by the appellant to broaden the
grounds of appeal. In the circumstances we are confined to the ground of
appeal for which leave to appeal has been granted.
2. The complainant was nine years old at the time of the rape. She was twelve
years old when she gave evidence about the said rape in court. The evidence
of a forensic nurse from the Thuthuzela Foundation was that there were fresh
anal and vaginal injuries that indicated forceful entry in both cases. The
forensic nurse was convinced that the injuries had occurred on the same day
that he had examined the comp lainant.
3. The complainant gave her evidence through an intermediary and with the
assistance of anatomically correct dolls. She only gave evidence of anal
penetration. Nonetheless , it is clear from the evidence of the forensic nurse
that she had been penetrated both anally and vaginally.
4. The issue on which the learned trial magistrate granted leave to appeal on is
whether these two acts of penetration constituted a single act of rape or two
separate and distinct acts of rape.
5. Ms Van Heerden who appeared for the State in this appeal referred this court
to the decision of Borchers J in the matter of S v Blaauw, where Borchers J
reasoned as follows:
"Mere and repeated acts of penetration cannot without more, in my mind, be equated
with repeated and separate acts of rape. A rapist who in the course of raping his victim
withdraw s his penis, positions the victim 's body differentl y and then again penetrates
her, will not in my view have committed rape twice. This is what I believe occurred
when the accused became dissatisfied with the position he had adopted when he stood
the complainant aga inst a tree. By causing her to lie on the ground and penetratin g her
again after she had done so, the accused was completing the act of rape he had
commenced when they both stood against the tree . He was not committing another
separate act of rape.
Each case must be determined on its own facts. As a general rule the more closely
connected the separa te acts of penetration are in terms of time (ie the intervals between
them) and place, the less likely a court will be to find that a series of separate rapes has
occurred." 1
6. This approach was followed in the Supreme Court of Appeal (SCA) in the
matter of S v Tladi2.
1 S v BLAAUW 1999 (2) SACR 29S (W) at 300 a - C.
2 S v TLADI 2013 (2) SACR 287 (SCA) paras [12] to [13] .
7. Ms Van Heerden then referred this court to the decision in S v Willemse3 where
the evidence showed that when an accused raped his victim vaginally and
turned her over and raped her anally, that the accused had formed two separate
intentions which constituted two separate and distinct acts of rape.
8. Ms Van Heerden pointed out that the facts in the case before this court and
those in Willemse 's case are different and must be distinguished.
9. The complainant in the present matter only testified about being penetrated
anally. However, the forensic nurse gave evidence that there were fresh
wounds to both the anal passage and the vaginal area consistent with forced
penetration. The forensic nurse also testified that he was informed that the
accused was ' spooning' with the complainant at the time and that in such
position penetration of the vagina can be followed by penetration of the anus
in a matter of seconds.
1 O.Accordingly, on the facts of the present case it has not been established that
both acts of penetration happened as a result of a separate and distinct intent.
Accordingly , the conviction on two separate rapes cannot be supported on the
facts of the instant case. This has been properly conceded by the State.
3 S v WILLEMSE 2011 (2) SACR (ECG) paras (18) to (19).
11. Accordingly, the conviction on the two separate and distinct rapes stands to
be set aside and replaced with a conviction on a single count of rape.
12.In the regional court the accused was convicted of two counts of rape. Both
counts were taken together for the purpose of sentencing in the regional court.
On the 10 September 2024 the regional court found substantive and
compelling reasons to depart from the statutorily prescribed minimum
sentence and on both counts of rape as the conviction in this case then stood,
the regional court imposed a sentence of 20 (twenty) years imprisonment.
13.After the decision of this court on appeal the original conviction on two counts
of rape has been set aside and has been replaced with a single conviction of
rape. The question that now looms large before this court is what becomes of
the sentence, which on the face of it represents an appropriate and just
sentence in the circumstances of the case for a conviction on two counts of
rape.
14. The powers of a court on appea l and the process to be followed in a criminal
matter are governed by both the Superior Courts Act IO of 2013 and the
Crimina l Procedure Act 51 of 1977. Section 19 of the Superior Courts Act as
read with section 309(1); 309(3); 304(2) ; and 3098 , provides both the process
that this court must follow on appea l and the powers that this court has in
dealing with the appeal before it.
15. The powers of this court are wide ranging on appeal. However, there is one
overriding concern that this court must take into account before it considers
what would be an appropriate manner to deal with a position as in the present
case where two convictions have been replaced with a single conviction and
where the two convictions where considered together for the purpose of
establishing a just and appropriate sentence to be imposed in the court a quo.
16. Sentencing by its very nature is a complex process of evaluating and balancing
several factors. In all cases the aim of the sentencing process is to achieve both
a just and appropriate sentence in the circumstances of the case.
17. To use a cooking analogy which is appropriate when considering a position
where two convictions are taken together for the purpose of sentencing and
such conviction is set aside and replaced with a single conviction. "The egg
has been scrambled and cooked in the court a quo." This court, in these
circumstances is in no position to unscramble the egg, reconstitute the egg,
scramble and cook it again. Accordingly , the only appropriate course of action
for this court is to set aside the two convictions for rape, replace it with a single
conviction for rape, set aside the sentence which resulted from considering
both convictions together for the purpose of sentencing and refer the matter
back to the learned trial magi strate to conduct sentencing proc eedings afresh.
18. Accordingly, the following order is made:
l. The convictions in the court a quo on t\vo counts of rape are set aside and
replaced with a conviction on a single count of rape.
2. The sentence in respect of the two counts of rape is set aside and tlhe matter
is referred back to the trial magistrate for sentenc ing proceedings.
Appearances
For Appellant:
Instructed by:
For Respondent:
Instructed by:
----L.G. LEVER
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION , KIMBERLEY
I agree,
L.P. TLALETSI
JUDGE PRESIDENT OF THE HIGH COURT
NORTHERN CAPE DIVISION , KIMBERL EY
Adv MMA Mafaro
Legal Aid South Africa, Kimberley
Adv A Van Heerden
The Directors of Public Prosecutions