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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: A135/2025
In the matter between:
THEO HARTZENBERG Applicant
and
THE STATE Respondent
Coram: DA SILVA SALIE, J et MAPOMA, AJ
Heard on: 27 February 2026
Delivered on: 27 February 2026
Summary:
Criminal law – sexual offences – appellant convicted of statutory rape of a 15 year old
minor, sexual exploitation of the minor for sexual services in exchange for reward and
engaging sexual services with an adult – distinction between exploitation of a c hild
and engaging sexual services of the 18 year old adult – construction of the statutory
elements of the appellant being anally penetrated – definition of sexual penetration
does not require that the appellant had to penetrate – anal penetration by the
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complainant as sought by the appellant suffice in terms of the Act – postponement to
call two defence witnesses to testify before the appellant correctly refused – the
evidence of the minor complainant accepted as satisfactory and reliable
notwithstanding shortcomings and investigation irregularities – conviction in respect of
statutory rape and sexual exploitation of a minor confirmed – appeal dismissed in
respect of counts 2 and 7 - conviction in respect of engagement of an adult for sexual
services set aside– effective sentence of 8 years’ imprisonement confirmed
ORDER
1. The appeal against the conviction on Count 25 is upheld, and the conviction is
set aside.
2. The appeal against the convictions on Count 2 (alternative) and Count 7 is
dismissed.
3. The sentence on Count 25 is set aside, antedated to 2 December 2024.
4. The sentence imposed in respect of counts 2 and 7 are confirmed.
5. The effective sentence remains eight (8) years’ imprisonment.
6. The appellant’s bail is withdrawn and he is to report to the Clerk of the Criminal
Court, Wynberg, at 10h00 on Monday, 2 March 2026 for his transportation and
incarceration to the Correctional Facility to commence his sentence as
imposed.
7. The Chief Registrar of this Court is directed to furnish a copy of this judgment
on date hereof to the Clerk of the Criminal Court, Wynberg, for the Clerk to act
as contemplated in the above paragraph.
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JUDGMENT
DA SILVA SALIE, J:
Introduction
[1] This is an appeal against conviction and sentence. The appellant was legally
represented throughout the proceedings in the court a quo. He pleaded not guilty to
all charges and elected not to provide a plea explanation in terms of section 115 of the
Criminal Procedure Act 51 of 1977 (“the CPA”). After the State closed its case, the
appellant brought an application for discharge in terms of section 174. The magistrate
granted a discharge on most counts because the complainants on those counts were
not called or the evidence was insufficient. The application was refused in respect of
the remaining counts, and the appellant thereafter closed his case without testifying.
[2] The charges arose from alleged sexual offences in the Muizenberg beachfront
area between March and May 2021. The remaining convictions relate to one minor
complainant, EC (15 years old at the time), and one adult complainant, JF (18 years
old at the time).
[3] The appellant was 36 years old, an admitted attorney of the High Court, and
resided at the Empire Building Apartments situated directly opposite the Muizenberg
beachfront. He was commonly known in the area by the nickname “lawyer.” The
complainants were amongst other children who frequented the beachfront locality
daily.
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[4] The locations identified by the complainants included the area below the
municipal hall with its distinctive red -tiled roof, the beachfront hokkies, the colourful
wooden bathing huts, and “die kolletjie” near the bridge—well-known public landmarks
associated with the Muizenberg beachfront.
[5] The appellant was convicted on:
(a) Count 2 (alternative charge): Statutory rape, a c ontravention of the
provisions of section 15(1) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007. He was sentenced to 8 years ’
imprisonment, of which 3 years was suspended for 5 years, on condition that
he is not convicted of the same offence within the period of suspension. The
sentence would run concurrently with Count 7.
(b) Count 7: Sexual exploitation of children, a contravention of the provisions
of section 17(1) of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007. He was sentenced to 8 years’ imprisonment; and,
(c) Count 25: Engaging sexual services of a person older than 18 years, a
contravention of section 11(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, Act 32 of 2007. He was sentenced to 3
months’ imprisonment, wholly suspended for 3 years on condition he is not
convicted of same offence. The effective term imposed was 8 years’
imprisonment.
(d) He was also found unsuitable to work with children, and that in terms of
section 120 (4) of the Children’s Act 38 of 2005, his name be added in the
National Child Protection Register in Part B.
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(e) The court also ordered in terms section 50A of the Criminal Law (Sexual
Offences and Related Matters Amendment Act 32 of 2007) that his name be
included in the National Register for Sexual Offenders.
Factual Background
[6] The complainants were boys living on the streets in the Muizenberg beachfront
precinct. They moved between the beachfront, the civic centre, the bridge, and the
informal wooden structures (“hokkies”). They knew the appellant by his nickname
“lawyer” and regularly saw him entering and exiting the Empire Building.
[7] EC testified that the appellant offered him money to penetrate him anally and
that this occurred on more than one occasion in secluded areas near the beachfront.
EC explained that he was living on the streets and accepted the money out of
necessity.
[8] JF, an adult complainant, testified that he too had anal intercourse with the
appellant once and afterwards received money. He also corroborated elements of
EC’s testimony, notably the incident with faecal matter on EC’s trousers.
[9] The complainant TR, who was younger, testified that he acted as a lookout but
was never induced into sexual activity. The appellant was acquitted on all counts
involving TR.
[10] EC testified that after one act of penetration he found faecal matter on his
trousers and informed the group. JF confirmed this account, stating that EC told them
what had happened and that the boys laughed about it. The magistrate accepted this
corroboration as material.
Investigative Irregularities Raised
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[11] The appellant criticised aspects of the investigation, including the manner in
which statements were taken, inconsistencies about who accompanied the police
during his arrest, and discrepancies in dates. These issues were fully ventilated before
the magistrate, who found that whilst the investigation was not beyond reproach, the
irregularities did not materially affect the reliability of the evidence on the counts
resulting in conviction.
Identification
[12] The appellant challenged the identification evidence. In Abdullah v The State
(Case no 134/21) [2022] ZASCA 33 ( 31 March 2022), the Supreme Court of Appeal
reiterated that identification must be approached with caution, particularly where there
is any risk of dock identification.
[13] This Division in S v Willemse and Others (SS93/2019) [2020] ZAWCHC 105
(15 September 2020) at para 78 and Abdullah (supra) at para 13, (unreported)
emphasised that recognition, where the witness knows the accused beforehand,
substantially reduces the risk of error compared with first -time observation. In this
case, the complainants knew the appellant from the area, knew his residence, and
knew him by his established nickname. Their identification rested on recognition and
not on fleeting encounters or courtroom pointing-out.
Right to Silence and court a quo’s refusal to postpone
[14] The court refused to postpone the matter when at the commencement of the
defence case, the appellant sought to call two witnesses to testify before him on
orientation of the Muizenberg beachfront. After the court’s finding that no exceptional
circumstances exist to grant such leave, the appellant elected not to testify and closed
his case. In my view the discretion was properly exercised and there was no
irregularity. In the result I am further satisfied that this did not amount to an unfair trial.
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[15] The appellant chose not to testify. While no adverse inference may be drawn
solely from silence, where the State’s evidence raises matters that call for an answer,
and the accused elects not to give one, the State’s case remains uncontested. (S v
Boesak 2001 (1) SACR 1 (CC)).
Analysis of Convictions
Counts 2 (Alternative) and 7 — Upheld
[16] The magistrate considered the evidence of EC with the necessary caution for
child witnesses. His evidence regarding the sexual acts, the locations, the payments,
and the nature of the appellant’s conduct was coherent and consistent in material
respects.
[17] Contradictions common among children living in conditions of instability did not
relate to the core allegations. The corroboration provided by JF strengthened the
reliability of EC’s evidence. The contradictions were not material and though there
were shortcomings, it cannot be said that the magistrate’s acceptance of such
evidence as satisfactory and reliable was misplaced.
[18] The evidence proved beyond reasonable doubt that EC, a minor under 16,
penetrated the appellant at the appellant’s instance and for money (Count 2), and that
the appellant induced EC to perform a sexual act for reward (Count 7). There is no
basis to interfere with these convictions.
Count 25 — Conviction Unsustainable
[19] The evidence of JF established that intercourse with the appellant did occur
and that he received money afterwards. However, section 11(1) criminalises engaging
the sexual services of an adult for reward, requiring proof of procurement, solicitation,
or engaging of services in a commercialised sense.
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[20] JF’s evidence does not establish that he was engaged as a sex worker or that
his sexual services were procured for reward. The payment was spontaneous and
unaccompanied by any arrangement or understanding that he was being hired. The
essential element of “engaging the services” was not proved. The conviction on Count
25 therefore cannot stand.
Sexual Penetration — Gender Neutrality and configuration in terms of the 2007
amendment
[21] The definition of “sexual penetration” in section 1 of the Act is deliberately broad
and gender-neutral. It includes:
[21.1] Any penetration whatsoever of the anus or genital organs by the genital
organs of another person. The statutory wording does not require that the
appellant be the penetrating party. The minor’s penis penetrated the appellant’s
anus. The appellant intentionally caused that penetration to occur. The
penetration therefore falls squarely within the statutory definition. The physical
configuration of the act is legally irrelevant. The legislative purpose of the Act
was to move away from the historic, gendered conception of rape that
depended on male penile penetration of a female complainant. The appellant’s
argument that he “could not rape because he was penetrated” would therefore
fail as a matter of statutory construction.
Sentence
[22] The remaining convictions relate solely to EC, who was 15 at the time. EC lived
on the streets, without parental care or supervision, and was financially and socially
vulnerable. His circumstances rendered him susceptible to exploitation.
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[23] The appellant, a 36- year-old attorney residing opposite the beachfront,
exploited EC by offering small sums of money for acts of anal penetration. The conduct
was predatory and targeted a child in precarious circumstances. The moral
blameworthiness is high.
[24] The magistrate imposed 8 years on Count 2 (alternative of which 3 years were
suspended for 5 years), 8 years on Count 7, with 3 years of Count 2 to run concurrently
with Count 7. However, notwithstanding Count 25 now set aside, this sentencing
structure remains appropriate. The effective sentence of 8 years’ imprisonment is
justified.
[25] The sentence is proportionate and accords with the purposes of punishment in
S v Zinn. There is no basis for interference.
Order
[26] In the result I make the following order:
1. The appeal against the conviction on Count 25 is upheld, and the
conviction is set aside.
2. The appeal against the convictions on Count 2 (alternative) and Count 7
is dismissed.
3. The sentence on Count 25 is set aside, antedated to 2 December 2024.
4. The sentence imposed in respect of counts 2 and 7 are confirmed.
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5. The effective sentence remains eight (8) years’ imprisonment.
6. The appellant’s bail is withdrawn and he is to report to the Clerk of the
Criminal Court, Wynberg, at 10h00 on Monday, 2 March 2026 for his
transportation and incarceration to the Correctional Facility to commence
his sentence as imposed.
7. The Chief Registrar of this Court is directed to furnish a copy of this
judgment on date hereof to the Clerk of the Criminal Court, Wynberg, for
the Clerk to act as contemplated in the above paragraph.
_____________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
I AGREE:
_____________________________
Z. L. MAPOMA
ACTING JUDGE OF THE
HIGH COURT
WESTERN CAPE DIVISION
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Appearances
For Applicant: A dv. GK Mhlanga
Instructed by: Musetsho Law Inc.
For Respondent: Adv. A Ferreira
Instructed by: The National Prosecuting Authority