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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR296/2020
In the matter between:
THABANI MFANISENI ZULU APPELLANT
and
THE STATE RESPONDENT
Coram: MOSSOP and HLATSHWAYO JJ
Heard: 20 February 2026
Delivered: 27 February 2026
ORDER
On appeal from: the Empangeni Regional Court (sitting as the court of first
instance):
1. The appeal against the conviction and sentence on count one is dismissed
and both conviction and sentence are confirmed.
2. The appeal against the conviction and sentence on count two is upheld and:
(a) The finding of guilty is set aside and is replaced with a finding of not guilty.
(b) The sentence of life imprisonment is set aside.
2
JUDGMENT
MOSSOP J (HLATSHWAYO J concurring):
Introduction
[1] The appellant was convicted of two counts of rape committed approximately
a year apart, the first offence having occurred in 2016 and the second in 2017.
[2] The victim on both occasions was the same young girl, aged six at the time
of the first incident. The alleged perpetrator and the victim were known to each other.
While having no formal familial link to each other , through the coincidence of
circumstances, the complainant and the alleged perpetrator found themselves both
resident at the two different homesteads where the two crimes were allegedly
committed.
The entitlement to an appeal
[3] Upon conviction on both counts, t he appellant was sentenced to life
imprisonment on each count and the two sentences imposed were ordered to run
concurrently with each other. By virtue of his automatic right of appeal in terms of the
provisions of s 309(1) (a) of the Criminal Procedure Act 51 of 1977 , his appeal is
before us.
Preliminary observations
[4] As an opening comment, it is apposite to state that appeals involving the
alleged rape of young children are extremely difficult to decide , more so when the
alleged rapes are said to have occurred several years before the disclosure of the ir
occurrence was first made. This is the position in this instance. Both alleged rapes
were only disclosed two years after the last rape had allegedly occurred.
[5] Experience teaches that this is not an unusual state of affairs and matters of
such a nature are frequently before this court. The regularity with which the se types
of matters appear on the court rolls , however, does not mean that the determination
of such matters i s now routine. Far from it. This is because the facts of each case
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are unique, and each appeal must be carefully considered before concluding what
should become of it. Thus, deciding the facts of one matter gives no particular
advantage in deciding the facts of the next matter. But it is probably true to say that
such appeals are decided by fine margins, the cumulative weight of which ultimately
tips the scale one way or the other. However, determining what those fine margins
are is no easy matter and neither is determining when the tipping point has been
reached.
The State’s evidence
[6] Considering the evidence of the complainant on the first count, it was said to
have occurred at a homestead situated at Ntambanana, Northern KwaZulu-Natal, on
an undisclosed date in 2016. No precision on the date on this count, or , indeed, on
the second count of rape, was possible because the complainant could not herself
be certain of it due to her young age . Resident at the homestead whe re the first
offence allegedly occurred were the complainant, her maternal grandmother (the
grandmother) and the appellant.
[7] The homestead was that of the grandmother. It is not in dispute that the
grandmother, an elderly lady not in the best of health, had requested that the
appellant take up residence at her homestead to improve her sense of security , it
being believed that a masculine presence at an otherwise female -occupied
homestead would provide the grandmother with some peace of mind regarding her
personal safety. While there was no consanguinity between the grandmother and the
appellant, the appellant’s mother and the grandmother shared a common surname
and had conducted themselves as if they were, indeed, related . At the time of the
request made by the grandmother to the appellant’s family that the appellant come
and stay with her at her homestead, to which request the appellant’s family acceded,
the appellant was still a schoolboy attending a local school located close to the
the appellant was still a schoolboy attending a local school located close to the
grandmother’s homestead. The arrangement appears to have suited both families,
but not necessarily the appellant , who testified at the trial that he did not get on with
the grandmother.
[8] On the day of the first offence, the complainant stated that the appellant had
allegedly been instructed by the grandmother to go out and fetch water for the
4
homestead. He had declined to do so, leaving the grandmother, sickly as she
allegedly was, with the tiresome task of doing so.
[9] During the grandmother’s forced absence from the homestead, the appellant
allegedly took the complainant to his room located in a ron davel separate from the
main dwelling. He allegedly closed the door to the rondavel , told her to sit on the
bed, lifted up her skirt and took off her panties. She was told to pull her knees up and
he then loosened his belt and trousers, allowing his trousers to spill to the floor. He
then took his penis and inserted it into her vagina . The complainant explained that
she felt pain and that when the appellant had finished, she found that:
‘… some white substance came out that was like mucous and then h e took an orange towel
of his, he wiped me and he also wiped himself.’
[10] Describing what had occurred before the appellant had finished, the
complainant indicated that:
‘He was putting it in, taking it out, putting it in, taking it out.’
All the while, she was lying on her back with her legs drawn up.
[11] Upon the grandmother returning to the homestead, she called out to the
appellant who, after rearranging his clothing, instructed the complainant that she
should indicate that, if asked, she had been in his room attending to sorting out some
spoons. It appears that the appellant’s bedroom was actually situated in a rondavel
that was also used as a kitchen. The complainant subsequently made no mention of
what had allegedly just occurred to her grandmother.
[12] As regards the second count, o n a further undisclosed date, said to have
been in 2017, the complainant explained that she and her grandmother had
relocated from Ntambanana to the Mat shana area , which is located within the
broader reach of Empangeni, Zululand. They actually moved in with the appellant’s
family at their homestead . Resident at th e appellant’s homestead were the
family at their homestead . Resident at th e appellant’s homestead were the
complainant, her grandmother, her aunt and uncle (the appellant’s parents) , whose
homestead it was, their daughter , A[...] (A[...]), and the appellant’s brother , Phelele
(Phelele). The appellant only returned to the homestead over weekends.
5
[13] Ordinarily, so the complainant explained, she and A[...] would sleep together
in A[...]’s room. Despite A[...] having her own room, she and the complainant actually
preferred to sleep on a sponge mattr ess in the passageway outside the entrance to
A[...]’s parents’ bedroom. They did so because they were scared to sleep alone at
night and this sleeping arrangement provided them with some reassurance of their
safety.
[14] On an undisclosed date in 2017, the complainant and A[...] were asleep on
their sponge mattress in the passageway outside A[...]’s parents’ bedroom when the
appellant allegedly woke the complainant. As to what she wore , she first explained
that:
‘When we had gone to sleep, we had gone to sleep wearing T -shirts on the upper of the
body and panties. He took off my panty.’
[15] That description changed when she said the following:
‘We were sleeping and he woke me up in the morning. We were sleeping only in our parties
[spelling error, should be ‘panties’] and then he took my panty off and then I did not see what
he did to me because I was sleeping.’
[16] The place where this rape allegedly occurred was the bedroom that A[...]
would ordinarily occupy in the homestead , which was located right next door to her
parents’ bedroom. As to how she got to that bedroom, the complainant first
explained that:
‘He lifted me up or picked me up.’
[17] All of this allegedly occurred in the morning, a rather broad description. The
complainant clarified this to state that she meant a time of the day when it was
‘already bright or daylight’.
[18] As to what the appellant was allegedly wearing, it is difficult to be certain.
The complainant first said that she could not recall what he wore, but then said, in
the same breath (and sentence), that he was:
‘… wearing pants that were jeans.’
6
[19] This then also changed when she stated that the appellant was wearing:
‘… a pair of trunks and he was not dressed on the upper part of the body.’
[20] The complainant was allegedly placed on the bed in A[...]’s bedroom and the
appellant then undressed and put his penis in her vagina. Just then, Phelele knocked
on the door . The complainant was ‘made to lie down’, and the appellant went to
attend to the knock on the door . Phelele entered the bedroom, dancing and playing
music. Asked where she was when this occurred, the complainant said that she was
then lying on the foam mattr ess and had covered herself with a blanket that had
been arranged in such a fashion that permitted her to peep through an opening in its
folds. She was by now clad again in her panties, which she explained the appellant
had put back onto her. Confusingly, she also explained at some stage that she had
put her own panties on. This difference was never explored.
[21] Medical evidence was also led. Dr Jabulani Mthethwa (Dr Mthethwa) is an
experienced medical doctor, who explained that he had been both in private practice,
and in practice with the State , for a period of 24 years. Despite his longevity in the
field of medicine, h e indicated that he had not specialised in any particular field of
medicine, and he confirmed under cross -examination that he had no additional
qualifications in the specialised field of gynaecology.
[22] He testified that he had examined the complainant on 4 April 2019. It will be
remembered that the second alleged rape was alleged to have occurred sometime in
2017. The complainant had been accompanied to his rooms by her mother, and it
was reported to him by the complainant that a male known to her had put his private
part into her private part on several occasions. On precisely how many occasions
was not determined by Dr Mthethwa, nor was the identity of the alleged perpetrator
ascertained by him.
ascertained by him.
[23] Upon examining the complainant’s genitalia, he discovered two clefts in her
hymen at the six o’clock and eight o’clock position s, respectively. They were no t
considered by him to be fresh tears. He thus concluded that the hymenal clefts were:
‘… consistent with genital penetration with an object.’
7
[24] As regards precisely how old the clefts were that he observed, Dr Mthethwa
indicated that the best that he could s tate in this regard was that they were older
than 10 days. Considering that the alleged rapes were said to have occurred in 2016
and 2017 and that he examined the complainant in 2019, this was of no real
assistance in pinpointing when they had been caused. Dr Mthethwa could be no
more precise than that. He, finally, confirmed that his findings were consistent with
genital penetration with an object and that object might well have been a penis.
[25] The complainant’s mother testified that she noticed a change in the
complainant’s behaviour when the complainant came to stay with her in December
2017. The complainant finally disclosed to her mother that the appellant had raped
her but initially only mentioned one such incident , namely the 2016 incident . The
subject had arisen quite innocently one morning while the complainant’s mother was
getting the complainant ready for school. The complainant’s mother had generally
told the complainant what she should not let boys do when the complainant br oke
down and confessed that the appellant had raped her. After th is disclosure, the
complainant went to school and at the end of the school day , she was taken by her
mother to be examined by Dr Mthethwa. Whilst waiting to be seen by the doctor, the
complainant mentioned that she had also been raped a second time. The doctor’s
examination findings prompted the complainant’s mother to lay a charge at the South
African Police Services (SAPS).
[26] The complainant’s grandmother was also called to testify at the trial . Her
evidence did not materially advance the State’s case , save to confirm that the
appellant did stay in a rondavel when he stayed at her homestead and that the
rondavel was also utilised as a kitchen. To a suggestion put to her by the appellant’s
counsel that she was behind the appellant being falsely implicated in the alleged
counsel that she was behind the appellant being falsely implicated in the alleged
rapes, she stated the following:
‘I have never not wanted him to be at that home and I did not influence this child at all,
because she did not even tell me, she went and reported to her mother, she hid this away
from me.’
[27] The facts reveal that the grandmother was not informed at all of the events
involving her granddaughter and the appellant until such time as a charge had
8
already been laid with the SAPS. The logic of the grandmother’s response is
accordingly unassailable.
The appellant’s evidence
[28] The appellant stated that he wa s 24 years of age at the time of his trial . He
resolutely indicated that the complainant had lied about everything. As to why she
might be disposed to do so, h e initially could not think of a reason why the
complainant would falsely implicate him but later apparently something came to him.
This related to a friend of his breaking into the grandmother’s homestead in
Ntambanana after his friend had missed a bus that would have taken him home and
he then spent the night in the grandmother’s homestead. Why this would prompt the
complainant to accuse him of a double rape was not immediately clear, nor did it
ever become clear.
[29] The appellant called his mother to testify. She confirmed that the appellant
had not gotten on well with the grandmother and that they had often quarrelled over
fetching water. It will be remembered that the complainant testified that on the day of
the first rape, the appellant had refused to go and fetch water at the request of the
grandmother. Perhaps the most significant part of the appellant’s mother’s evidence
was her statement concerning the second count of rape when she stated that:
‘… I do not understand how it could be alleged that she was raped while she was sleeping in
my house, I do not understand why I would not hear anything if she was sleeping at my door
if somebody were to take her from my door.’
Analysis: conviction
[30] Mr Mkumbuzi, who appeared for the appellant on appeal , stated in his
heads of argument that the court a quo had erred in convicting the appellant and that
the court:
‘… should have found that the explanation given by the Appellant and his defence witness
was not so highly improbable that it should be rejected as false beyond reasonable doubt.’
[31] Any explanation given by an accused person should be considered and
[31] Any explanation given by an accused person should be considered and
assessed. The difficulty with Mr Mkumbuzi’s submission is that it is not clear what
9
the appellant’s explanation is. It seems to consist only of a denial of everything
alleged by the State. No alternative factual hypothesis was suggested. All the facts
advanced by the State through the witnesses that were summoned to testify for it
were lies, according to the appellant. According to him, he ha d been falsely
implicated in a plot to unlawfully convict him. Could this be true?
[32] The appellant alleged that the complainant’s grandmother was out to get him
because of the earlier -mentioned incident when a friend of his had broken into her
empty homestead; alternatively, the appellant rationalised that he had apparently
interfered with the grandmother’s electricity meter resulting in the supply of electricity
to the homestead being discontinued. Had any of these events occurred, they would,
on their own, have afforded reason enough for the grandmother to act against the
appellant and his friend . In my view, s he did not need to concoct a story of a
complicated double rape involving her granddaughter in order to cause trouble for
him.
[33] That this could not be a reason for what had happened to the appellant
becomes apparent when it is appreciated that the grandmother had absolutely
nothing to do with the charging of the appellant , as previously mentioned . As the
grandmother herself stated, the information about what had allegedly happened to
the complainant at the hands of the appellant was actively kept from her. When a
charge was eventually laid against the appellant, it was not done by her but by the
complainant’s mother. In my view, the appellant’s theorising as to why he has been
implicated may safely be rejected. I must, in the circumstances, find that the
appellant is not the victim of a plot.
[34] Does the rejection of the appellant’s speculative musings on why he has
been charged, and convicted, on its own mean that his guilt has been established?
In my view, it does not. There is no obligation on the appellant to establish why
In my view, it does not. There is no obligation on the appellant to establish why
someone might falsely implicate him in an alleged criminal act. 1 The existence of
some reason for this to have occurred may have made it easier for the court a quo to
intellectually accept the possibility of the innocence of the appellant. But his failure to
1 S v Lesito 1996 (2) SACR 682 (O) at 687i-688a; S v BM [2013] ZASCA 160; 2014 (2) SACR 2 3
(SCA) para 25.
10
advance a compelling reason for his implication in events does not, conversely,
establish his guilt. The burden of establishing guilt always remains on the State.
[35] The cogency and reliability of the evidence adduced by the State must
always be considered, even where the evidence of the accused person falls to be
rejected. Were this not to be the case, it may result in the accused person being
convicted on insufficient evidence simply because he was disbelieved.
[36] The regional magistrate considered the evidence of the complainant and
came to the conclusion that she was a credible and reliable witness. As a general
proposition with regard to count one, the rape of 2016, that was a proper finding in
my view . The complainant’s evidence on that count was easily understood and ,
moreover, had the ring of truth to it. There were details in her evidence that indicated
that she had truly experienced what she described. She referred to the appellant
discharging a ‘white substance’ ‘that was like mucous’ when he was finished with her
and described him thereafter wiping himself and her body with a towel. Had she not
seen this, I am of the view that she would not, at the tender age of six, be aware of
the discharge from t he appellant’s body that she imperfectly described as being
‘mucous’.
[37] In addition, w here all this was said to have occurred was in the appellant’s
bedroom, which was also the homestead’s kitchen. The explanation that the
appellant told her to provide if the grandmother questioned her on why she was in
the appellant’s bedroom, namely that she was attending to sorting out some spoons,
coincides with the use to which the room was put. All that evidence r eads
seamlessly.
[38] However, I have some reservations about the soundness of the
complainant’s evidence on the second count of rape. On that count , her evidence
was not as clear as her evidence on count one. I consider now parts of her evidence
was not as clear as her evidence on count one. I consider now parts of her evidence
on this count that I consider to pose certain difficulties for the State case:
(a) She testified that she was asleep on the foam mattr ess in the passage with
A[...] on the morning that she was raped for the second time . While she described it
as being in the morning, it was not the early hours of the morning when it was dark
because she indicated that when the incident occurred , the sun had already risen,
11
and it was ‘bright’. It seems unlikely that the appellant would venture to commit a
rape when his identity would be unequivocally established by anyone by virtue of the
natural light then prevailing and in a dwelling filled with sleeping persons who might
be alerted by any sound that might unintentionally be made.
(b) The appellant took her away from where she lay with A[...] without her
companion being disturbed or, in fact, without disturbing any of the other occupants
of the dwelling. The complainant indicated that the appellant:
‘… woke me up, picked me up and took me to the bedroom where A[...] and I sleep.’
However, Ms Naidu, who appeared for the State, argued that any shortcomings in
the complainant’s evidence arose from the fact that the complainant never really
woke up and lapsed back to sleep after being roused. This submission was ba sed
upon the following extract from the trial record:
‘He picked me up and I woke and then I seemed to fall back to sleep and I woke up when he
was inserting his penis in my vagina and then I asked him what he was doing and the
Phelele knocked.’
The evidence mentioned above arose under cross -examination. Thus, the
complainant went from initially being awake to lapsing back to sleep, which did not
initially appear to be her version in her evidence in chief. This change raises
questions about the accuracy and reliability of her observations and recollections.
(c) The complainant could not consistently describe what the appellant was
wearing, as previously mentioned.
(d) The complainant made no mention of the door to A[...]’s room , into which
she was taken, being locked and the unexpected arrival, and entrance, of the
appellant’s brother playing music and singing adds a surreal element to the scene.
The brother must have made some observations about what was occurring in the
room or, at the very least, have asked some questions, yet he was not called to
testify.
room or, at the very least, have asked some questions, yet he was not called to
testify.
(e) But the single most difficult aspect of the complainant’s evidence was that
when Phelele entered A[...]’s room, the complainant stated that she was:
‘… lying on the sponge mattress when he was dancing.’
Only one foam mattress was ever mentioned at the trial. It was in the passageway
outside the appellant’s mother’s room. How the complainant got there through the
same door through which Phelele entered the room is not easy to imagine.
12
[39] The appellant’s mother was incredulous that such events could have
allegedly played out in such confined living quarters without someone else being
aware of what was happening. That appears to me to be a valid observation.
[40] Mr Mkumbuzi stated in his heads of argument that the trial court ought to have
drawn a negative inference from the fact that the complainant did not immediately
disclose what the appellant had allegedly done to her after the first rape , and even
after the second rape. This is a submission of no merit. Reluctance on the part of
rape survivors, or at least some of them, to report an incidence of rape at the first
opportunity is a firmly recognised fact and this is even more likely to be the case
where young children are the victims.
[41] When the rape of an adult occurs, the Supreme Court of Appeal has found it to
be a:2
‘… humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the
victim.’
The rape of a child is even more appalling and must be utterly confusing to the child
when the perpetrator is a trusted person . The power dynamic that exists between an
adult and a child may leave the child victim bewildered and afraid of possible
consequences if they should speak out. Adult victims are often unable to process
what has happened to them and do not always reveal what has happened to them.
Even more so when the victim is a young child.
[42] The point taken by Mr Mkumbuzi, is, however, not a novel one and has been
taken by others before. In Monageng v S ,3 Maya JA , before her elevation to the
position of Chief Justice, had the following to say in relation to a similar argument
presented to the Supreme Court of Appeal:
‘[23] Much was made by the appellant's counsel of the complainant's apparent ability to
act normally after the rape and her delay in reporting it. It has been firmly established in a
number of studies on the impact of violence, including rape, against women that victims
number of studies on the impact of violence, including rape, against women that victims
display individualised emotional responses to the assault. Some of the immediate effects are
2 S v Chapman 1997 (3) SA 341 (SCA) at 344I-J.
3 Monageng v S [2009] 1 All SA 237 (SCA) para 23 and 24.
13
frozen fright or cognitive dissociation, shock, numbness and disbelief. It is therefore not
unusual for a victim to present a façade of normality.
[24] It is further widely accepted that there are many factors which may inhibit a rape
victim from disclosing the assault immediately. Children who have been sexually abused,
especially by a family member, often do not disclose their abuse and those who ultimately do
may wait for long periods and even until adulthood for fear of retribution, feelings of
complicity, embarrassment, guilt, shame and other social and familial consequences of
disclosure. Significantly, the newly passed Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 provides, in section 59, that -
"In criminal proceedings involving the alleged commission of a sexual offence, the court may
not draw any inference only from the length of any delay between the alleged commission of
such offence and the reporting thereof."
Raising a hue and cry and collapsing in a trembling and sobbing heap is not the benchmark
for determining whether or not a woman has been raped. There was thus nothing unusual
about the complainant's behaviour and her explanation for not immediately reporting the
appellant is plausible.’ (Footnotes omitted)
[43] In a perfect world the complainant would have disclosed what had occurred
to her after the first rape. But as we all know, this world is not perfect. The argument
advanced by Mr Mkumbuzi seeks to impose adult qualities and conduct on a child
who lacks the intellectual capacity and maturity of an adult. Besides that criticism of
this argument, the inference that we were invited to draw cannot be drawn because
of the provisions of s 59 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 . To Mr Mkumbuzi’s credit, he did not dwell much on this
issue in argument before us.
[44] In ICM v The State ,4 the Supreme Court of Appeal made the following
observations on child witnesses:
observations on child witnesses:
‘With regard to the complainant’s age the legal position is that a court considering the
evidence of a child, must be satisfied that the child is a credible and reliable witness. The
credibility assessment relates to the child’s honesty whilst reliability relates to the child’s
cognitive ability or brain development. The child’s cognitive ability is assessed by having
regard to factors such as his or her ability to encode, retain, retrieve and recount information
or an event. The “intimidating and bewildering atmosphere” under which the child testified
4 ICM v The State [2022] ZASCA 108 (ICM) para 23.
14
should also be factored in. As with any other witness, the child witness’ testimony should be
evaluated in the light of the totality of the evidence.’ (Footnote omitted.)
[45] The criteria mentioned in ICM, as a general proposition, were present in the
complainant’s narration of events relating to the first count. On that count, h er
evidence was clearly the truth and was not seriously challenged by Mr Mkumbuzi
before us . Her ability to recall what happened on the second occasion was less
impressive. I do not , however, lay that failing at her door , for, in my view, she was
poorly led by the public prosecutor. Issues that could easily have been clarified were
not and were left unexplained. I must not be understood to be saying that the second
rape did not occur. I suspect very much that it did. However, our system of law
requires proof beyond a reasonable doubt. We would not be true to that system if we
were to find persons guilty merely on the suspicion, even a strong suspicion, that
they had committed a crime.
[46] I mentioned at the commencement of this judgment that the outcome of an
appeal may swing on fine margins. In this instance, it seems to me that the fine
margins have accreted to the benefit of the appellant insofar as count two is
concerned.
Analysis: sentence
[47] Mr Mkumbuzi submitted in his heads of argument that the sentence of life
imprisonment imposed on the first count of rape induces a sense of shock and that
the seriousness of the offence was over emphasised by the regional magistrate . He
argued before us that what had happened to the complainant was not the worst type
of rape and that it was possible to imagine worse violations.
[48] The difficulty with that proposition is that what the appellant did to the
complainant was not imaginary, but very real. While there may not have been horrific
physical injuries to the complainant, there is no doubt that she was injured , as her
victim impact statement reveals:
victim impact statement reveals:
‘By now I feel sad when someone asks me I feel sad. I feel like kill the person who did this to
me. When I sitting and thinking it comes in my mind. I always look at YuTube (sic) for funny
15
videos to forget. I respected him but he betrayed me. I hate him for what he did to me and
also denie (sic) that he raped me. I feel different from other children now. I am sad.’
[49] That is a heart -breaking statement , riddled with despair, to come from a
child.
[50] People who rape children must brace themselves for severe sentences if
convicted. Mr Mkumbuzi proposed a sentence of 25 years ’ imprisonment as an
alternative to the sentence imposed upon the appellant . I cannot agree. There were
no substantial or compelling circumstances presented to the regional magistrate.
The appellant’s age is insufficient to justify a departure from the prescribed minimum
sentence.
[51] In Maila v S,5 the Supreme Court of Appeal stated the following:
‘Taking into account Jansen, Malgas, Matyityi, Vilakazi and a plethora of judgments which
follow thereafter as well as regional and international protocols which bind South Africa to
respond effectively to gender-based violence, courts should not shy away from imposing the
ultimate sentence in appropriate circumstances, such as in this case. With the onslaught of
rape on children, destroying their lives forever, it cannot be “business as usual ”. Courts
should, through consistent sentencing of offenders who commit gender -based violence
against women and children, not retreat when duty calls to impose appropriate sentences,
including prescribed minimum sentences. Reasons such as lack of physical injury, the
inability of the perpetrator to control his sexual urges, the complainant (a child) was spared
some of the horrors associated with oral rape, which amount to the acceptance of the real
rape myth, the accused was drunk and fell asleep after the rape, the complainant accepted
gifts (in this case, sweets) are an affront to what the victims of gender -based violence, in
particular rape, endure short and long term. And perpetuate the abuse of women and
children by courts. When the Legislature has dealt some of the misogynistic myths a blow,
children by courts. When the Legislature has dealt some of the misogynistic myths a blow,
courts should not be seen to resuscitate them by deviating from the prescribed sentences
based on personal preferences of what is substantial and compelling and what is not. This
will curb, if not ultimately eradicate, gender -based violence against women and children and
promote what Thomas Stoddard calls “culture shifting change”.’ (Footnote omitted.)
I agree with these sentiments.
5 Maila v S [2023] ZASCA 3 para 59.
16
[52] Children are powerless against adults, and the courts must endeavour to
protect them through the imposition of proper sentences that will deter others of like
mind. The appellant defiled an innocent and defenceless child to satisfy his lust. To
my thinking, he received a just and proportionate sentence on count one.
Conclusion
[53] I conclude that it would be unsafe to allow the appellant’s conviction and
sentence on count two to stand and to that extent , the appeal should be allowed. In
the view that I take of the matter, t he conviction and sentence on count one is sound
and should not be disturbed.
Order
[51] I would accordingly propose the following order:
1. The appeal against the conviction and sentence on count one is dismissed
and both conviction and sentence are confirmed.
2. The appeal against the conviction and sentence on count two is upheld and:
(a) The finding of guilty is set aside and is replaced with a finding of not guilty.
(b) The sentence of life imprisonment is set aside.
_____________________________
MOSSOP J
I agree:
_____________________________
HLATSHWAYO J
17
APPEARANCES
Counsel for the appellant: Mr P Mkumbuzi
Instructed by: Durban Justice Centre
Care of:
Pietermaritzburg Justice Centre
High Court Unit
Pietermaritzburg
Counsel for the respondent: Mr S Naidu
Office of the Director of Public
Prosecutions