IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
HIGH COURT CASE NO: A27/23
DPP REFERENCE NO: 10/2/5/1/3-32/21
LOWER COURT CASE NO: SH6/105/2019
In the matter between:
MABUTHI T. MAYA APPELLANT
and
THE STATE
Neutral citation: Maya v The State (High Court Case no: A27/23) [2026]
ZAWCHC (18 March 2026)
Coram: LEKHULENI J et MAYOSI, AJ
Heard: 25 November 2025
Delivered: 18 March 2026
Summary: Appeal against conviction for two counts of rape and
subsequent minimum sentence of life imprisonment – evidence not proving
elements of the second rape charge – elements of attempted rape established
- appropriate sentence.
ORDER
1 On appeal from : The Regional Court, Parow, against conviction for
two counts of rape and the sentence of life imprisonment.
2 The appeal against conviction in respect of count 5 is hereby
dismissed.
3 The sentence of life imprisonment imposed by the court a quo in
respect of counts 5 and 7 is hereby set aside.
4 The appellant is hereby sentenced to imprisonment for a period of 15
years in respect of count 5.
5 The appellant’s second conviction for the offence of rape in count 7 is
hereby set aside, and is replaced with an order that the appellant is
guilty of the offence of attempted rape.
6 The appellant is sentenced to imprisonment for a period of 12 years in
respect of count 7.
7 The sentences of imprisonment in respect of counts 5 and 7 shall not
run concurrently.
8 In terms of section 280(2) of the CPA, the sentenc es in respect of
counts 6, 11, 12 and 13 shall run concurrently with the sentence in
count 5 and 7.
JUDGMENT
Mayosi AJ (LEKHULENI J concurring):
Introduction
[1] The appellant was arraigned in the Regional Court, Parow, on sixteen
counts ranging from rape, sexual assault and robbery with aggravating
circumstances arising from events that allegedly happened between 2016
and 2018, involving different complainants.
[2] On 24 February 2020, the appellant pleaded not guilty to all sixteen
counts, and elected to remain silent.
[3] On 29 August 2022, the appellant was convicted by the court a quo on
six of the sixteen count s, namely on counts 5 (rape), 6 (attempted robbery
with aggravating circumstances) , 7 (rape), 11 (attempted robbery with
aggravating circum stances), 12 (assault) and 13 (compelling or causing a
person to witness a sexual offence) . He was acquitted on the remainder of
the charges that he faced.
[4] The court a quo sentenced the appellant as follows:
[a] Life imprisonment for c ounts 5 and 7 which were taken
together for the purposes of sentence.
[b] Fifteen years imprisonment for counts 6 and 11 . They were
also taken together for the purposes of sentence.
[c] Three years imprisonment for count 12.
[d] Ten years imprisonment for count 13.
[5] The sentences were ordered not to run concurrently. The appellant
was declared unfit to possess a firearm and, furthermore, it was ordered that
his name be recorded in the Register for Sexual Offenders provided for in
section 50(2) of the Criminal Law Amendment Act ( Sexual Offences and
Related Matters) 32 of 2007 (the Act).
[6] On 19 September 2022, the appellant filed a notice to ap peal against
the conviction and sentence of life imprisonment (i.e., counts 5 and 7) .
Leave to appeal was denied for the other charges of which the appellant was
convicted. The appellant subsequently exercised his automatic right of
appeal in respect of the two life sentences.
[7] The particulars of the charges faced by the appellant in counts 5 and 7,
are as follows:
THAT [he] is guilty of the crime of contravening the provisions of Section 3 read
with Sections 1, 55, 56(1), 57, 59, 60, 61 and 68 of [the Act] read with Sections
256, 257, 261 and 28 1 of Criminal Proc edure Act 51 of 1977; the provisions of
Sections 51 and Schedule 2 Part I, II, III of the Criminal Law Amendment Act
105 of 1997, as amended as well as Sections 92(2) and 94 of the Criminal
Procedure Act 51 of 1977. – Minimum sentences are applicable.
IN THAT on or about 28 /06/2018 and at or near [home address], Welgemoed in
the Regional Division of the Wes tern Cape the said accused did unlawfully and
intentionally commit and act of sexual penetration with a [female] person to wit
[the complainant] (20 years) by inserting his penis into her vagina without [her]
consent.
[8] The State called four witnesses in support of these charges, namely,
the complainant, her mother, Dr Noordien and Warrant Officer Heyns.
[9] The convictions for counts 5 and 7 meant that the appellant was found
guilty of two c ounts of rape as defined in section 3 of the Act. The
significance of this for the purposes of this appeal lies in the fact that an
accused convicted of having raped his victim more tha n once must, in terms
of section 51(1) (as read with Part I of Schedule 2) of the Criminal Law
Criminal Amendment Act 105 of 1997 (the Criminal Law Amendment
Act), be sentenced to life imprisonment unless the court in terms of section
51(3)(a) of the Criminal Law Amendment Act is satisfied that substantial
and compelling circumstances justifying a lesser sentence exist.
[10] For the purposes of this appeal the appellant contends that:
[a] only one act of rape occurred as per the testimony of the
complainant;
[b] the first time when he attempted to penetrate the complainant
vaginally, no penetration occurred because the complainant tigh tened
her leg muscles, thereby preventing the rape from occurring; and
[c] when he later attempted to rape the complainant again, this time
in the presence of her mother, no penetration occurred because his
penis was flaccid.
[11] It is clear therefore that in this appeal the appellant does not take issue
with the first conviction for rape as it is common cause that sexual
penetration as defined did occur in that instance , and further that the
remaining elements of section 3 of the Act were present.
[12] It is the second conviction for rape that is attacked in this appeal, on
the grounds that there was no evidence upon which the court a quo could
find that it had occurred.
[13] The sentence of life imprisonment that was imposed by the court a
quo is attacked because of the legal consequence s that f ollow when an
accused is convicted of having raped his victim more than once in terms of
the provisions of the Criminal Law Amendment Act. Since it is contended
by the appellant that the second rape did not occur, then i n that case the
sentence of life imprisonment cannot be sustained.
[14] The appeal is opposed by the State.
Relevant factual background
[15] The events that resulted in the two rape convictions that form the
subject matter of this appeal occurred on 28 June 2018, at the complainant’s
parental home in Welgemoed, in Cape Town. Th e complainant shared this
home with her mother and two sisters , her father having passed away a year
or so earlier. The complainant was 20 years old at the time of the incident.
[16] In her evidence, the complainant estimated that her ordeal began at
about 11h30 that morning. She had arrived earlier that morning for vacation
from Stellenbosch University where she was a student in the engineering
faculty. The com plainant was alone at home after her mother had gone to
work earlier that morning . She was outside attending to a task that her
mother had asked her to do when the appellant , having accessed the
property, appeared before her and forcibly led her back inside the house.
Once inside the house he wanted to know who else was home and after
establishing that she was alone , he walked around the house assessing items
and repeatedly asked her: ‘where is the money, where is the gold ’, by which
she understood hi m to be demanding valuables . As he walked around the
house doing his appraisal, s he noticed that w henever he touched items, he
would wear gloves.
[17] This forced tour of the house took them to various room s until they
came upon a small room near her mother’s bedroom which the complainant
referred to as a safe room. I will maintain this term in my judgment, as this
room is integral to the events that occurred on that da y. When she gave her
evidence the complainant’s mother described the safe room as being about a
metre wide and a metre and a half long with shelves on both sides running
length wise. At the far end of the safe room there was a small safe – the type
that is typically found in hotel rooms mounted to a wall and requir es a
combination code to open. The safe room d id not have any lights or
windows and was completely dark inside.
[18] The complainant unlocked the door to the safe room and there were at
least four laptops inside, which the appellant took. He also took her mother’s
Nikon camera that was in there. This camera carried a great deal of
sentimental value for the family as it contained numerous pictures of her
recently de ceased father. In addition, the appellant took the complainant’s
cell phone.
[19] The appellant demanded that the complainant open the safe, but she
could not, as she did not know the access code to do so. He did not believe
her. The appellant persisted with his demands, which were re -enforced by a
knife that he held to her throat. Ultimately, when his threats did not produce
the desired result , he resolved that in that case they should wait for he r
mother to return from work , having elicited from the complainant the
information that her mother might know the code and that she would be
returning from work at lunchtime.
[20] It was during this period of waiting for her mother to return from
work that the first rape for which the appellant was convicted occurred.
Apparently bored and whiling away the time whilst waiting for her mother’s
return, the appellant wandered around the house . He and the complainant
were standing in her bedroom when he ordered her to take off her clothes .
He pushed her against one of the cupbo ards in her roo m with her back
towards him. The complainant could feel him trying to insert his penis into
her vagina from behind , but she tightened her leg muscles and made it hard
for him to succeed in doing so.
[21] The appellant then took her to her sister’s room next door to hers and
pushed her down onto the bed . The complainant was pleading with him not
to do this, telling him that she did not want this , but he ignored her. She was
still protesting when he took the knife and held it against her thr oat. He
pushed her legs open, inserted his penis into her vagina; proceeded to
copulate until ejaculation. After that , he told her to take a shower . She
refused to do so and proceeded to use a blanket to wipe off his liquid.
[22] That blanket was later taken into evidence, and it was from t hat
blanket, the complainant’s underwear and her vaginal fluids that DNA
matching that of the appellant was extracted and obtained , securing the
appellant’s conviction for this count of rape. Dr Noordien and Warrant
Officer Heyns gave evidence in this regard, which proved beyond reasonable
doubt that the appellant had raped the complainant.
[23] I pause to mention that in the record that served before us for the
purposes of this appeal , the cross -examination of Dr Noordien by the
appellant’s legal representative was absent. Efforts to reconstruct and
complete the record did not cure this problem. However, given the ambit of
the appeal (i.e., whether or not the appellant penetrated the complainant once
or twice), it was agreed by both parties that there was no prejudice caused by
the absence of Dr No ordien’s cross-examination from the record , and that
the appeal could proceed. In the circumstances, the Court held the view that
it served the interests of justice to proceed with the appeal.
[24] I return to the events of the day in question.
[25] After raping her, the appellant took the complainant back to the safe
room, told her to be quiet and locked her inside. Whilst there waiting for her
mother’s return, the complainant pondered for a moment whether keeping
quiet as instructed was the correct thing to do when her mother returned. She
heard the garage door open and close as her mother returned in her car. The
time was now approximately 13h15.
[26] The complainant had up until that point chosen the path of least
resistance by appearing to be compliant with the knife-wielding appellant, in
order not to aggravate him, and in the interests of self -preservation. She
decided not to be quiet when she heard her mother . Driven by a desire to
protect her mother and prevent an already bad s ituation from turning worse,
the complainant yelled: ‘run mom, run’ as loudly as she could, although she
was not certain if her mother could hear her.
[27] The mother testified that she did in fact hear her daughter screaming
for her to run , although she sounded muffled . Upon hearing her daughter,
this had the effect o f making her walk towards the direction that the
complainant’s voice came from rather than away from it, as she had by then
gathered the sense that there was something very wrong.
[28] After her mother arrived, the appellant held a knife to her throat and
dragged her to the safe room where she joined the complainant. He had
already taken the mother’s cell phone from her and a bunch of keys that
were in her pocket . The appellant demanded that the mother give him her
wedding and engagement rings as well as her watch. These were gifts from
her late husband. In anger, the mother took these items off and threw them
with force on the floor where they became concealed under the clutter that
was there. It took them about a week after the incident before they found
them.
[29] And so t he ordeal continued, this time with the appellant demanding
that the mother open the safe. She refused to do so , telling him that the only
person who knew the code was her late husband. This made the appellant
very angry, and he persisted with his demands whilst holding a knife to the
mother’s throat.
[30] When he could see that he w as not succeeding with the mother , the
appellant told her that if she did not comply with his demands, he would
rape her daughter in front of her. At which point the mother started pleading
with the appellant, basically begging him not to do this and to leave her
daughter alone. These pleas fell on deaf ears.
[31] The appellant instructed the complainant to take off her pants , which
she did. He t ook out his penis and tried to insert it inside her vagina . His
penis was flaccid and he could not insert it inside her vagina. He then shoved
the complainant towards her mother, who was behind her in the safe room
and proceeded to lock them both inside again. At that point, when they were
left alone in the safe room , the complainant told her mother not to worry -
the worst thing that could happe n had happened because the appellant had
already raped her.
[32] The ordeal continued, with the appellant repeatedly locking the
mother and daughter inside the safe room, only to return to threaten them
some more if they did not open the safe. Neither the complainant nor her
mother could remember how many times the appellant did this. At some
point he returned to them holding a kettle filled with bo iling water, and
threatened that if the y did not open the safe, he would pour the hot water
over them.
[33] The appellant demanded that the complainant’s mother give him her
bank cards. At which point the complainant remembered that their house had
an old Telkom fixed line telephone that nobod y paid any attention to , the
type with a portable handset . Looking for an opportunity to retrieve this
phone, the complainant offered to give the appellant her own bank cards. He
went with her out of the safe room to get them, leaving her mother locked
inside. The complainant got to her bank cards and whilst she was writing
down fake PIN numbers for him, he got distracted and she managed to pick
up the telephone handset and put it in the back pocket of her jeans. When
she was back in the safe room with her mother, she gave her the phone and
told her to hide it.
[34] At some point whilst they were back inside the safe room and the
appellant was demanding that her mother open the safe, the complainant
noticed a bunch of keys on one of the shelves inside. She knew that this
bunch had a key to the safe room door, as she had used the key on this bunch
to open the safe room for the appellant earlier that day. The safe room key
that the appellant had in his posse ssion, and which he had been using to
repeatedly lock and open the door , was on the bunch of keys that he had
confiscated from her mother. With a fair amount of care and caution , so as
not to draw the attention of the appellant with crackling keys, the
complainant managed to pick up this bunch of keys, isolate and remove the
key for the safe room door ( it had distinct features) from it, and carefully
place the bunch of keys back on the shelf so that the appellant would not
notice anything being amiss in ca se he had seen the bunch of keys on the
shelf earlier.
[35] After finally coming to the realisation that he was not going to get
what he wanted from the complainant and her mother (i.e., to open the safe),
the appellant locked them inside the safe room and he left. Before he did so,
the complainant’s mother protested insistently that he could not leave them
inside the safe room as they would have no way of getting out for at least
three days when one of her daughter s returned f rom school camp. The
mother did not know at that point that the complainant had managed to
secure the key to the safe room door. The appellant nevertheless locked
them inside and left. They heard him attempting to start the mother’s car in
the ga rage, but for some reason he could not drive it off and he left the
property, presumably on foot.
[36] After a moment of quiet, the complainant used the safe room key that
she had earlier isolated to unlock the door and free them from the room. In
the mother’s bedroom, t hey pressed the panic button linked to their security
company. Still f eeling unsafe and unsure that the appellant was actually
gone, t hey locked themselves inside the mother’s bathr oom which ha d a
reinforced door and small windows . Using the handset that she had earlier
taken from the house, the complainant called her uncle and told him what
had happened , and to call the police. Thereafter the complainant left the
bathroom, made sure that her mother lock ed herself inside whilst the
complainant went to her mother’s bedroom which had bigger windows.
From there she could see the men from the security company. She jumped
out of the window of her mother’s bedr oom, opened the gate and gave them
access to the property. The police arrived shortly thereafter.
[37] And so it was that their nightmare came to an end. The time was
approximately 14h30.
[38] Dr Nadia Noordien examined the complainant later that same da y at
Karl Bremner Hospital, and compiled the J88 report of her examination and
findings. A rape kit was compiled consisting o f the complainant’s
bloodstained underwear and specimens collected from her vaginal area, and
it was sent away for analysis.
[39] Warrant Officer Christie Heyns, employed as a forensic analyst in the
South African Police Service , testified that she analysed the exhibits that
were handed to her and compiled a report. She testified that the DNA that
was found on th e blanket that was retrieved f rom the scene and from the
specimens obtained from the complainant’s underwear matched the
reference sample that was obtained from the appellant , meaning that the
appellant’s DNA was found on these items.
The appeal against conviction
[40] Section 3 of the Act stipulate s that any person who unlawfully and
intentionally commits an act of sexual penetration with a complainant
without the consent of the complainant is guilty of the offence of rape.
[41] There is no reasonable doubt, factually or legally, that rape is what the
appellant did to the complainant when, on 28 June 2018, he instructed her to
take off her clothes , moved her from her sister’s bedroom to her own
bedroom where he threw her on the be d, pushed her legs open, inserted his
penis inside her vagina and ultimately ejaculat ed inside of her , all without
her consent and whilst holding a knife against her throat.
[42] The DNA evidence of Dr Noordien and Warrant Officer Heyns put
this beyond reasonable doubt. The appellant seems to accept in this appeal
that the magistrate was correct to find him guilty of rape in this instance.
[43] The appellant’s version in the court a quo, which in the main
consisted o f a bare denial but also included a claim that his DNA was
planted where it was found in order to frame him for the crime, could not be
reasonably possibly true and the magistrate , in my view, was correct to
reject it and convict the appellant of rape on count 5.
[44] As mentioned previously, the appellant’s appeal on conviction lies
against his second conviction for rape, which in my view stands on a
different footing. It calls for an enquiry into the definition of sexual
penetration for the purposes of determining whether the evidence before the
court a quo was such as to establish, beyond reasonable doubt, all of the
elements of rape under the Act. In my view, and for the reasons that appear
below, the evidence did not establish that the appellant raped the
complainant a second time.
[45] The Act stipulates that s exual penetration includes any act which
causes penetration to any extent whatsoever by:
[a] the genital organs of one person into or beyond the genital
organs, anus, or mouth of another person;
[b] any other part of the body of one person or, any object,
including any part of the body of an animal, into or beyond the genital
organs or anus of another person; or
[c] the genital organs of an animal, into or beyond the mouth of
another person,
and “sexually penetrates” has a corresponding meaning.
[46] There was no evidence that penetration occurred during the
appellant’s other attempt to rape the complainant.
[47] The complainant’s evidence in chief regarding the appellant’s next
attempt to rape her after the first rape, this time in the presence of her
mother, was thus, in relevant part:
COMPLAINANT: …so he told me that, h e told [her mother] that he
would rape me in front of her again if she did not comply and she still
refused to open the safe so he told me to take off my pants. So he tried to
stick his penis back in but it was flaccid and I do not think that he actually
would have been able to but he did not do it and then he sort of shoved me
back in with mom.
PROSECUTOR: You are saying when he tried to stick his penis it was
erected or not?
COMPLAINANT: It was mostly flaccid.
PROSECUTOR: Is it possible for you to tell the Court you are saying he
tried to stick it in where did he put his penis?
COMPLAINANT: He would have tried to put it back in my vagina
but…[incomplete].
[48] This evidence was not disturbed in cross-examination, which went as
follows, in relevant part:
MS CUPIDO: Okay you say his penis was mostly flaccid it was not erect.
COMPLAINANT: Yes.
MS CUPIDO: Okay. So, at any stage did he then touch you with his
flaccid penis or not.
COMPLAINANT: As far as I remember he did.
MS CUPIDO: He what? He.
COMPLAINANT: Touch me with his flaccid penis.
COURT: In your vagina?
COMPLAINANT: Near it.
[49] The mother in her evidence confirmed that the rape was threatened in
her presence, but it did not happen.
[50] The magistrate ’s finding that the appellant penetrated the
complainant’s vagina twice on 28 June 2018 is therefore not borne out by
the evidence that was before her . It was a patent error her part, and the
subsequent conviction of the appellant for rape falls to be set aside.
[51] Section 256 of the Criminal Procedure Act 51 of 1977 ( the CPA )
stipulates that if the evidence in criminal proceedings does not prove the
commission of the offence charged but proves an attempt to commit the
offence, the accused may be found guilty of an attempt to commit that
offence. I believe that this is such a quintessential case.
[52] The evidence supports a finding that the appellant is guilty of the
offence of attempt ed rape set out in section 55 of the Act , which provides
that a person who attempts to commit a sexual offence in terms of the Act is
guilty of an offence, and may be liable on conviction to the punishment to
which a person convicted of actually committing that offence would be
liable.
[53] From the evidence it is clear that on the second occasion the appellant
intended to have sexual intercourse with the complainant, and to have it
without her consent. He acted out his intention by causing the complainant
to undress against her will ; by taking out his penis and approaching the
complainant’s body to insert it inside of her vagina. In the process, his
penis touched the complainant’s body, near her vagina . Mercifully for the
complainant and her mother, his penis failed to execute that which he
intended and was attempting to do. It is rather like the hypothetical example
where A holds a loaded gun against B’s head intending to shoot and kill B;
A pulls the tri gger to fire into B’s head but for some reason he misses B’s
head or the gun jams and fails to fire the shot. That cannot on any standard
be said to be tantamount to murder.
[54] I am satisfied that t he evidence that was before the magistrate
established beyond reasonable doub t that the appellant intended to commit
sexual penetration without the complainant’s consent; he took steps to do so
but failed to complete the act. The appellant had a ‘finally formulated
intention’ to penetrate the complainant. See in this regard R v D 1958 (1) SA
199 (A) at 203H-204D; and S v Du Plessis 1981 (3) SA 382 (A) at 400B-D,
both of which cases were cited with approval by the Supreme Court of
Appeal in Fortuin v S,1 at para 6.
[55] For these reasons, the second conviction f or rape under count 7 must
be set aside, and the appellant must be found guilty of the offence of
attempted rape in terms of section 55 of the Act read with the provisions of
section 256 of the CPA. I now turn to consider the appeal against sentence.
The appeal against sentence
[56] The Criminal Law Amendment Act provides for a minimum-sentence
scheme in respect of certain offences. The prescribed minimum sentence
should be imposed by a court as a point of departure , unless the court finds
that substantial and compelling circumstances exist. The minimum sentence
1 Unreported SCA case no 838/2017 [2018] ZASCA (13 February 2018).
legislation ‘was introduced by the legislature to address the rising levels of
criminality in this country.’ See S v Mbulelo [2019] ZASCA 154.2
[57] The Criminal Law Amendment Act provides that a Regional Court or
a High Court shall sentence a person it has convicted of the offence of rape
to imprisonment for a period of not less than 15 years if that person is, like
the appellant, a first offender.
[58] In S v N 3 it was held that in determining whether ‘ substantial and
compelling circumstances’ existed justifying a sentence less than th e
prescribed minimum sentence, the court is to consider al l facts relevant to
sentence, both aggravating and mitigating and in the light thereof decide
whether the prescribed minimum sentence is grossly disproportionate to the
crime committed.
[59] After convicting the appellant of the two charges of rape which then
triggered the minimum sentence provisions of the Criminal Law
Amendment Act, the magistrate considered whether there were any
substantial and compelling circumstances justifying her departure from the
prescribed sentence. She found there to be none.
[60] It is contended for the appellant that the magistrate erred in not paying
sufficient attention to his personal circumstances. I am not convinced that
this is correct. The record shows that she did in fact consider them, and then
correctly proceeded to bal ance th ose personal circumstances with the
seriousness of the offences that she had found the appellant guilty of as well
as the public interest. Had the magistrate been right about the second rape
conviction, the prescribed minimum sentence imposed woul d have accorded
2 Unreported SCA case no 148/2019, 26 November 2019 at [10]
3 2000 (1) 209 (W)
with the interests of justice in the absence of substantial and compelling
circumstances.
[61] The setting aside of the second rape conviction, however, necessitates
that this Court consider what the appropriate sentences are for the offences
of rape, for which a minimum sentence is prescribed, and attempted rape
that the appellant is guilty of.
[62] The following are said to the appellant’s personal circumstances:
[a] The appellant was 29 years old at the time of the sentencing in
2022.
[b] He left school at grade 8.
[c] He was unmarried and had no children.
[d] The appellant was assisting his family through causal work.
[e] He had been was awaiting trial for more than 3 years at the time
of sentencing.
[f] He had a relevant previous conviction that should not be over -
emphasised.
[63] It is contended that whilst these personal circumstances when taken
individually may not constitute substantial and compelling circumstance s,
when they are assessed cumulatively, they can be re garded as such,
justifying this Court deviating from the applicable prescribed minimum
sentence.
[64] For the purposes of this sentencing exercise, I set out below what I
consider to be the aggravating factors in this case.
[65] First, the calm manner in which the appellant executed his reign of
terror on that day is nothing short of chilling. The complainant had the right
to freedom and security of her person, which include d the right to be free
from all forms of violence . Rape is a particular form of violence that not
only shattered the complainant’s security of her person, but also degrade d
her dignity as is apparent from the contents of her victim impact statement .
The appellant treated the complainant’s body as though it possessed no
intrinsic value, other being a means to his ends.
[66] Second, the rape was a gross violation of the complainant’s right to
bodily and psychological integrity. The indelible compromise to the
complainant’s psychological integrity is evident f rom how this eve nt
changed the trajectory of her life. She was a 20 year engineering student at
Stellenbosch University at the time. After the incident she dropped out of
university and could not return for some time; she avoided all social contact
for more than 6 months; became severely depressed and suicidal to such an
extent that she was put under sui cide watch. She e ngaged in reckless
behaviour as a result of depression. She suffered from social anxiety ;
struggled with intimacy; feared stranger s and became overwhelmed by
feelings of shame; embarrassment; lack of self-esteem and what seems to me
to be a general inability to retrace a path that might lead her to a version of
herself that she loved and wanted to live with . Worse, after she was raped,
she had to endure a course of ARV medication (to prevent her from
contracting HIV from the appellant if he had the virus) to which she suffered
a series of bad reaction s that she took months to recover from. She still
suffers from post -traumatic disorder from the incident; has been in therapy
since July 2018 and she takes anti -depressants to treat her anxiety and
depression. In her victim impact statement, the complainant told the Court
that she struggles to come to terms with the incident and continues to suffer
from PTSD.
[67] Third, the appellant’s conduct after he raped the complainant is
indicative of a person possessed of a sense of entitlement to do what he was
doing. This is apparent from the fact that after he raped her, the appellant
kept telling the complainant that he had not raped her; that they were just
friends having a bit of fun . The complainant had never seen the appellant
before that day. His conduct was s elf-serving and manipulative , indicative
of a person who not only saw himself as entitled to rape the complainant and
take whatever he wanted in her home ; but also, a person who did not in fact
see anything wrong with what he was doing . Whilst he was in r eality
dismantling the good prospects of a young woman’s life , he saw the entire
episode as a bit of fun for him. This casual attitude, whilst inflicting trauma
on that scale, is a further chilling factor in the appellant’s entire demeanour
on that day.
[68] Fourth, the appellant then proceeded to torture , first, the complainant
and then her mother for a solid four hours. Using rape as a weapon, he
attempted to rape the complai nant again, subjecting her mother to the
unspeakable prospect of having to witness the rape, all so that he could gain
access to whatever was inside that locked safe. And then there was the
threat to throw boiling water over them . He kept them in a dark confined
space that entire time, and just before he left proceeded to ask for hugs from
the complainant and her mother. Finally, he locked them in side that dark
room from which, for all he knew, there was no means for them to escape.
Had the complainant not earlier isolated the key to the safe room door, she
and her mother could very well have perished in that room after the
appellant left them there.
[69] Fifth, it was not just the complainant’s right s that the appellant
violated, but also those of her mother and her sisters. An entire family was
robbed of the sanctity of their own home; the simple pleasure which many
are fortunate to take for granted, of enjoying their homes as places of refu ge
and peace. The appellant shattered that for this family on that day. Pursuant
to that ordeal, t hey moved out of the house and returned some eighteen
months later. In a bid to help her family cope and protect them, the
complainant’s mother moved to Wellington, taking her youngest daughter
out of the English medium school that she was attending in Stellenbosch to
an Afrikaans medium school in Wellington, which caused her to struggle.
To top it off, the appellant’s theft of the Nikon camera and the laptops, all of
which were never recovered, meant that the family lost irreplaceable pictures
of their husband and father who had recently passed away , which was a
version of yet another loss of their father. There is no member of the
complainant’s family that was left unsullied by the appellant’s conduct on 28
June 2018.
[70] Sixth, as if what he had done on that day w ere not enough, the
appellant continued his torture of the complainant. He called her on her cell
phone later that same day. She hung up the phone after she recognised his
voice. He followed this up with Whats App message s a few days later,
referring to her as ‘sweetheart’; at one point writing: ‘I LOVE u Sweet heart
hey’; and then:
‘I want to say sorry for the
Weapon that I Did Point to
your neck, i feel very sad for
that…
I feel Sorry for that
Pls put ur Profile pic I would
like to see u on it pls
i want to send u my Pic But I
dont Know u would like it
Can we meet together’
[71] These messages caused the complainant and her mother to harbour the
reasonable fear that the appellant would return to their ho me, a nd so his
reign of terror continued even after the day of the incident . The notion that
the events of that day had somehow initiated some kind of romance between
him and the complainant i s repugnant. It is consistent with the brazenness
and entitlement displayed by the appellant.
[72] It is fair to say that in the rising levels of criminality that the minimum
sentence legislation was intended to address, rape is a scourge that is at
epidemic proportions in our country. It is inflicted mostly, but not
exclusively, by men on other men and women of all ages, babies included.
It cuts across race and class lines. For far too many people than should ever
be the case in any society, rape has become a lived reality that they have h ad
to survive and live with the grim consequences of. The complainant, and to
some extent her mother an d sisters, are now in the ranks of this unfortunate
group of people.
[73] All of these aggravating factors, which are relevant with equal force to
the conviction for attempted rape, outweigh the mitigating factors presented
by the appellant ’s personal circ umstances for the proposes of sentencing .
More so, in S v Vilakazi 4 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,
4 2009 (1) SACR 552 (SCA) para 58.
are in themselves largely immaterial to what that period should be, and those
seem to be the kind of 'flimsy' grounds that S v Malgas 5 said should be
avoided.
[74] Consequently, w hen regard is had to the seriousness of the sexual
offences of which the appellant is convicted , the accused’s personal
circumstances, the aggravating factors and the interests of the public, I see
no reason to depart from the prescribed minimum sentence of imprisonment
for 15 years for the offence of rape. There are no substantial and compelling
circumstances that justify such a departure.
[75] Section 55 of the Act empowers this Court to impose of the offence of
attempt the same punishment for which a person convicted of rape would be
liable. For all of the reasons set out above, and in the circumstance of this
case, a sentence of imprisonment for a period of 12 years for the offence of
attempted rape is just.
Conclusion
[76] For all the reasons set out in this judgment, the appeal is partially
upheld and, in the circumstances, the following order is proposed:
[1] The appeal against conviction in respect of count 5 is hereby
dismissed.
[2] The sentence of life imprisonment imposed by the court a quo
in respect of counts 5 and 7 is hereby set aside.
[3] The appellant is hereby sentenced to imprisonment for a period
of 15 years in respect of count 5.
5 2001 (1) SACR 469 (SCA).
[4] The appellant’s second conviction for the offence of rape in
count 7 is hereby set aside, and is replaced with an order that the
appellant is guilty of the offence of attempted rape.
[5] The appellant is sentenced to imprisonment for a period of 12
years in respect of count 7.
[6] The sentence s of imprisonment in respect of counts 5 and 7
shall not run concurrently.
[7] In terms of section 280(2) of the CPA, t he sentences in respect
of counts 6, 11, 12 and 13 shall run concurrently with the sentence in
count 5 and 7.
_____________________________
N MAYOSI
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
_____________________________
J LEKHULENI
JUDGE OF THE HIGH COURT
APPEARANCES
For appellant: Ms A. De Jongh, Cape Town Justice Centre
For the State: Advocate EA Kortje, National Prosecuting Authority