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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A75/2024
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 11 May 2026
SIGNATURE
In the matter between:
ESSET MABONA Appellant
and
THE STATE Respondent
JUDGMENT
LENYAI J (JANSE van NIEWENHUIZEN J Concurring)
[1] This is an appeal by the appellant against both his conviction and the sentence
imposed by the Regional Court of Gauteng, sitting at Benoni on the 26 th May
2021. The appellant was charged with, and subsequently convicted of, rape in
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terms of section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Ac t.1Following his conviction, he was sentenced to 20 years’
imprisonment.
[2] The appellant’s application for leave to appeal against his conviction was
refused by the trial court and it granted leave to appeal against sentence . The
appellant subsequently petitioned the High Court Division, Pretoria for leave to
appeal against his conviction, which leave was granted on 22 November 2023.
[3] The appeal is directed, firstly, at the correctness of the trial court’s findings on
the merits, particularly its reliance on the evidence of a single child witness, and
secondly, at the appropriateness of the sentence imposed. The identity of the
appellant is not in dispute.
[4] The first witness for the State was M[...] M[...] M[...], a medical practitioner who
examined the complainant. She testified that during the examination, the
complainant reported to her that a known male person had sent her to the
shop, and upon her return, the appellant placed her on his lap, slipped his
fingers into her panty, and inserted his finger into her private parts. The witness
recorded a fresh tear on the complainant’s left labia minora, while the hymen
remained intact. She testified that, although her findings could not conclusively
confirm sexual abuse, they equally could not exclude it. In her view, the injury
may be consistent with sexual abuse, although it may also have been caused
by other means. She further indicated that there was no evidence of
penetration into the vagina. Notwithstanding this, she stated that the injury
observed was compatible with the history provided by the complainant. She
explained that, had there been an intention to penetrate the vagina fully, such
conduct would likely have resulted in injury to the hymen.
[5] The second witness for the state was O[...] S[...]. She testified that she was 9
years old. She was 6 years old at the time of the incident. She testified that she
years old. She was 6 years old at the time of the incident. She testified that she
was watching television at the Appellant’s place. The chair she was sitting on
was uncomfortable and the Appellant invited her to sit with him on his chair.
She sat on the Appellant’s thighs. The Appellant undressed her tights and
1 32 of 2007.
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panty. The Appellant inserted his finger inside her vagina. He said she must go
and play and gave her R1,00. She told her friends, K[...], A[...], L[...] and L[...].
Her friends told their mothers, and their mothers came to report to her mother.
They went to the clinic and to the police station . There was a family meeting.
The Appellant was present in the meeting and was drunk. He was asked about
the allegations, and he replied that he wanted to sleep with her and that he was
opening ways. She testified that a magistrate came to the room where children
are kept and asked her questions that were asked in court.
[6] The third witness for the state was N[...] T[...] L[...] , the complainant’s mother.
She testified that the complainant is her child. She was a tenant at the
Appellant’s residential place. The complainant used to watch television in the
Appellant’s room. The complainant told her that the Appellant inserted his finger
into her private. There was a meeting where the Appellant was confronted with
the allegations. The Appellant agreed and stated that he did it and that he was
paving a way to sleep with the complainant. The Appellant gave the
complainant R1.00. It was put to her under cross examination that the
complainant never testified that she felt pains when she was peeing.
[7] The issues to be determined by the court are the following:
a. Whether the Appellant inserted his finger into the vagina of the
Complainant or whether the injury on the Complainant’ labia minora was
caused by the Appellant’s finger?
b. Was the sentence imposed by the trial court appropriate?
Conviction
[8] Section 3 of Criminal Law Sexual Offences and Related Matters Amendment
Act provides that—
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“Any person (“A”) who unlawfully and intentionally commits an act of sexual
penetration with a complainant (“B”), without the consent of B, is guilty of the offence
of rape.”
[9] Section 1 of the Criminal Law Sexual Offences and Related Matters
Amendment Act define sexual penetration as 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.”
[10] At the time of the incident, the complainant was six years old. Consequently,
the provisions of section 51(1), read with Schedule 2 of the Criminal Law
Amendment Act (“CLAA”) find application in this matter .2 Section 51(1) of the
CLAA reads as follows:
“Notwithstanding any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person it has convicted of an offence referred
to in Part I of Schedule 2 to imprisonment for life.”3
[11] Rape of a person under the age of 18 is listed in Part I of Schedule 2 to the
CLAA. Accordingly, the prescribed minimum sentence of life imprisonment is
applicable. This is so in the present matter, as the complainant was six years
old at the time of the incident.
[12] An appellate court will be reluctant to interfere with a trial court’s findings of fact
and its assessment of the evidence, especially where such findings turn on
credibility, unless a material misdirection is demonstrated or the conclusions
2 105 of 1997.
3 Ibid.
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reached are plainly incorrect. In S v Francis 1991(1) SACR 198(A) ,4 the
approach of an appeal court to findings of fact by a trial court was crisply
summarized as follows:
“The powers of a court of appeal to interfere with the findings of fact of a trial court
are limited. In the absence of a witness’ evidence, is presumed to be correct. In order
to succeed on appeal, the applicant must therefore convince the court of appeal on
adequate grounds that the trial court was wrong in accepting the witness’ evidence a
reasonable doubt will not suffice to justify interference with its findings. Bearing in
mind the advantage which a trial court has seeing, hearing and appraising a witness,
it is only in exceptional cases that the court of appeal will be entitled to interfere with
a trial court’s evaluation of oral testimony.”
[13] Furthermore, in S v Hadebe and Others 1997(2) SACR 641(SCA) ,5 the
supreme court of appeal stated that:
“In the absence of demonstrable and material misdirection by the trial Court, its
findings of fact are presumed to be correct and will only be disregarded if the
recorded evidence shows them to be clearly wrong. The reasons why this deference
is shown by appellate Courts to factual findings of the trial court are so well known
that restatement is unnecessary.”
[14] In Osman and Another v Attorney -General, Transvaal 1998 (4) SA 1224 (CC), 6
Madala J stated that:
“Our legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who fails to produce
evidence to rebut that case is at risk. The failure to testify does not relieve the
prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal, the prosecution's case may be
sufficient to prove the elements of the offence.”
[15] Having regard to all the evidence that has been brought before the court a quo
[15] Having regard to all the evidence that has been brought before the court a quo
and contained in the record , the definition of rape per section 3 and 1 Criminal
Law Sexual Offences and Related Matters Amendment Act 32 of 2007, and
most importantly evidence by witnesses and most critical, the medical
practitioner, I am satisfied that the prosecution has proven all the elements of
4 S v Francis 1991(1) SACR 198(A) at 204D-E.
5 S v Hadebe and Others 1997(2) SACR 641(SCA) at 645E-F.
6 Osman and Another v Attorney-General, Transvaal 1998 (4) SA 1224 (CC) at para 22.
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rape. The appellant did unlawfully and intentionally commit an act of sexual
penetration on the complainant without her consent . In other words, there is a
prima facie case proved by the state. The burden of proof the shifted to the
appellant to rebut the state’s prima facie case.
[16] In the criminal matter, the state bears the onus to prove its case against the
accused beyond a reasonable doubt. The audi alteram partem rule is a
fundamental principle of our law and is entrenched in the Bill of Rights in the
Constitution of the Republic of South Africa, 1996. Every litigant is therefore
entitled to a fair and public hearing before a court where the dispute is capable
of resolution through the application of law. The appellant was afforded the
opportunity to defend hi s case but chose to exercise the right to remain silent
which he is very much entitled to.
[17] The appellant in this matter has exercised his right to remain silent in terms of
section 35(3)(h) of the Constitution. In S v Boesak 2001 (1) SACR 1 (CC), 7 the
Constitutional Court stated that:
“The right to remain silent applies at different stages of a criminal prosecution. An
arrested person is entitled to remain silent and may not be compelled to make any
confession or admission that could be used in evidence against him or her. This right
arises again at the trial stage, where an accused is entitled to be presumed innocent,
to remain silent, and not to testify. However, the fact that an accused person is under
no obligation to testify does not mean that the decision to remain silent carries no
consequences. Where there is evidence calling for an answer and the accused elects
to remain silent, a court may be entitled to conclude that, in the absence of an
explanation, the evidence is sufficient to prove guilt. Whether such a conclusion is
justified depends on the weight of the evidence.”
[18] In the present matter, the appellant was confronted with evidence calling for an
[18] In the present matter, the appellant was confronted with evidence calling for an
answer and failed to provide a satisfactory response thereto. By electing to
remain silent in the face of such evidence, the appellant failed to gainsay the
State’s case. In the circumstances, his silence weighs against him, as there
was no version placed before the court to rebut the incriminating evidence. I am
accordingly satisfied that the prosecution presented evidence sufficient to
7 S v Boesak 2001 (1) SACR 1 (CC) at para 24.
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establish a prima facie case which, in the absence of any rebuttal, proved the
appellant’s guilt beyond a reasonable doubt. The conviction of the appellant
was therefore correct. His silence thus leads irresistibly to the conclusion that
there was nothing to be said in his favour.
[19] The court a quo correctly recognised that the complainant was a single witness
in respect of the alleged rape and accordingly approached her evidence with
the requisite caution, duly admonishing her in that regard.
[20] In terms of section 208 of the Criminal Procedure Act (“CPA”),8 an accused
may be convicted of any offence on the single evidence of any competent
witness. The complainant in this matter is a single witness on the rape incident
and therefore section 208 of the CPA is applicable. In S v Stevens 2004 JDR
0505 (SCA),9 the Supreme Court of Appeal stated that “ It is a well -established
judicial practice that the evidence of a single witness should be approached
with caution, his or her merits as a witness being weighed against factors which
militate against his or her credibility.”
[21] The appellate division in S v Sauls and Others 1981 (3) SA 172 (A), 10 stated
the following regarding the application of the cautionary rule on single witness
evidence—
“There is no rule of thumb test or formula to apply when it comes to a consideration
of the credibility of the single witness (see the remarks of Rumpff JA in S v Webber. .
.). The trial judge will weigh his evidence, will consider its merits and demerits and,
having done so, will decide whether it is trustworthy and whether, despite the fact
that there are shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told. The cautionary rule referred to by De Villiers JP
in 1932 [in R v Mokoena 1932 OPD 79 at 80] may be a guide to a right decision but it
does not mean "that the appeal must succeed if any criticism, however slender, of
does not mean "that the appeal must succeed if any criticism, however slender, of
the witnesses' evidence were well founded" (per Schreiner JA in R v Nhlapo (AD 10
November 1952) quoted in R v Bellingham 1955 (2) SA 566 (A) at 569.) It has been
said more than once that the exercise of caution must not be allowed to displace the
exercise of common sense.”
[22] Furthermore, the court a quo also found corroboration emerging from the
evidence of her mother and the medical practitioner. The latter testified that the
8 51 of 1977.
9 S v Stevens 2004 JDR 0505 (SCA) at para 17.
10 S v Sauls and Others 1981 (3) SA 172 (A) at 180E-G.
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injury sustained by the complainant could not exclude sexual abuse and that
such an injury could be caused by the insertion of a finger. The complainant’s
ability to recall and demonstrate the events in detail, including using anatomical
dolls, strengthen the state case particularly given that she was only 6 years old
at the time of the incident and that the trial commenced approximately two
years thereafter. I agree with the trial court finding that the slight contradictions
between her evidence and her mo ther’s evidence are not material and that her
evidence was indeed satisfactory, credible and reliable.
[23] The appellant’s contention that the complainant’s testimony is not fully
corroborated, on the basis that the J88 does not exclude the possibility that the
injuries could have been caused by some other means, is without merit. The
purpose of medical evidence is not to exclude every hypothetical alternative
cause of injury, but rather to support or be consistent with the complainant’s
version. In the present matter, the findings recorded in the J88 are not
inconsistent with the complainant’s account of sexual assault and, when
considered together with her clear and credible testimony, serve to corroborate
her version in material respects. The argument advanced by the appellant is
therefore speculative and does not create a reasonable doubt.
[24] The argument that the State failed to call certain witnesses is equally without
merit. The State is not required to call every possible witness, but only to
present sufficient evidence to prove its case beyond reasonable doubt which it
has done. In this instance, that threshold was met and the burden shifted to the
appellant to rebut the state’s prima facie case.
[25] The appellant, having failed to present any cogent rebuttal to the State’s
evidence, did not displace the inferences properly drawn therefrom. On a
conspectus of the evidence as a whole, I am satisfied that the court a quo
conspectus of the evidence as a whole, I am satisfied that the court a quo
correctly convicted the appellant. The conviction accordingly stands to be
upheld.
Sentencing
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[26] The appellant submitted that in sentencing the Appellant to an effective term of
20 years’ imprisonment, the sentencing court erred in over -emphasized the
seriousness of the offence and the interest of the society whilst the personal
circumstances of the appellant w ere under-emphasized. The appellant had
further submitted that the court a quo erred in imposing the sentence which is
shockingly harsh and which induces a sense of shock.
[27] In S v Bogaards 2013 (1) SACR 1 (CC) ,11 the Constitutional Court held that an
appellate court’s power to interfere with sentences imposed by lower courts
was as follows:
“It can only do so where there has been an irregularity that results in a failure of justice; the
court below misdirected itself to such an extent that its decision on sentence is vitiated; or the
sentence is so disproportionate or shocking that no reasonable court could have imposed it.”
[28] The Supreme Court of Appeal in S v Monyane and others 2008 (1) SACR 543
(SCA),12 further stated that “it would interfere with sentences imposed by a trial
court only where the degree of disparity between the sentence imposed by the
trial court and the sentence this court would have imposed was such that
interference was competent and required.”
[29] It is apposite to note again that in this matter the complainant was 6 years old
at the time of the incident and life imprisonment is applicable. However, the
court has got the discretion to deviate from the prescribed minimum sentence if
there are compelling and substantial circumstances.
[30] The Supreme Court of Appeal in S v Malgas 2001 (1) SACR 469 (SCA),13
summarized courts power to deviate from the prescribed sentence as follows:
11 S v Bogaards 2013 (1) SACR 1 (CC) at para 41.
12 S v Monyane and others 2008 (1) SACR 543 (SCA) paras 23 and 26.
13 S v Malgas 2001 (1) SACR 469 (SCA) at para 25.
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(a) “Section 51 has limited but not eliminated the courts' discretion in imposing
sentence in respect of offences referred to in Part I of Schedule 2 (or
imprisonment for other specified periods for offences listed in other parts of
Schedule 2).
(b) Courts are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the particular prescribed
period of imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification be imposed for the listed crimes in the
specified circumstances.
(c) Unless there are, and can be seen to be, truly convincing reasons for a
different response, the crimes in question are therefore required to elicit a
severe, standardised and consistent response from the courts.
(d) The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation, and marginal differences in
personal circumstances or degrees of participation between co -offenders
are to be excluded.
(e) The Legislature has however deliberately left it to the courts to decide
whether the circumstances of any particular case call for a departure from
the prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and the need for effective sanctions against it,
this does not mean that all other considerations are to be ignored.
(f) All factors (other than those set out in D above) traditionally taken into
account in sentencing (whether or not they diminish moral guilt) thus
continue to play a role; none is excluded at the outset from consideration in
the sentencing process.”
(g) The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick ('substantial and compelling') and
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must be such as cumulatively justify a departure from the standardised
response that the Legislature has ordained.
(h) In applying the statutory provisions, it is inappropriately constricting to use
the concepts developed in dealing with appeals against sentence as the
sole criterion.
(i) If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed sentence unjust in
that it would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would be done by imposing that sentence, it is
entitled to impose a lesser sentence.
(j) In so doing, account must be taken of the fact that crime of that particular
kind has been singled out for severe punishment and that the sentence to
be imposed in lieu of the prescribed sentence should be assessed paying
due regard to the benchmark which the Legislature has provided.”
[31] In S v Vilakazi 2009(1) SACR 552(SCA),14 the Supreme Court of Appeal stated
that:
“It is clear from the terms in which the test was framed in Malgas and endorsed in
Dodo that it is incumbent upon a court in every case, before it imposes a prescribed
sentence, to assess, upon a consideration of all the circumstances of the particular
case, whether the prescribed sentence is indeed proportionate to the particular
offence.”
[32] The court in S v Chapman 1997 (2) SACR 3 (SCA),15 described rape as a “very
serious offence, constituting as it does a humiliating, degrading and brutal
invasion of the privacy, the dignity and the person of the victim.”
[33] The appellant submitted that in sentencing the Appellant to an effective term of
20 years’ imprisonment, the sentencing court erred in over -emphasizing the
seriousness of the offences and the interest of the society whilst the personal
circumstances of the appellant was under -emphasized. I am of view that the
14 S v Vilakazi 2009(1) SACR 552(SCA) at para 15.
15 S v Chapman 1997 (2) SACR 3 (SCA) at 5-B.
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court a quo has correctly balanced the personal circumstances of the accused
with the seriousness of the crime and interest of justice. It must also be taken
into account that the complainant suffers from depression and is very m uch
aggressive towards other children especially boys per probation officer’s report.
[34] The personal circumstances of the appellant, as placed on record, were duly
considered by the trial court. He was born on 11 January 1975 and was 46
years old at the time of sentencing, and 43 years old when the offence was
committed. He was unmarried and had no dependants. His highest level of
education was Grade 11, and he was not formally employed, earning an
income of approximately R300 per week through recycling activities.
Importantly, he had no previous convictions at the relatively advanced age of
43, a factor which ordinarily entitles an accused to some measure of mercy. He
was arrested on 13 May 2018 and released on bail in the amount of R2 000 on
29 May 2018.
[35] Notwithstanding these personal circumstances, the trial court was required to
balance them against the seriousness of the offence, the interests of society,
and the circumstances of the complainant. The offence in question involves the
sexual violation of a minor child of tender age, which constitutes a grave
invasion of bodily integrity and dignity. Such offences are prevalent and
demand a firm and deterrent response from the courts.
[36] Despite the seriousness of the offence, the trial court imposed a sentence of 20
years’ imprisonment, which is less than the prescribed minimum sentence of
life imprisonment. This clearly indicates that the court exercised its discretion
with due regard to all relevant factors.
[37] There is no indication that the trial court committed any material misdirection or
overemphasised any particular factor. The sentence imposed is neither
disproportionate nor does it induce a sense of shock. In the circumstances,
disproportionate nor does it induce a sense of shock. In the circumstances,
there is no basis for this Court to interfere with the sentence.
Order
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[38] The appeal against both the conviction and sentence is dismissed.
___________________________
LENYAI J
JUDGE OF THE HIGH COURT
PRETORIA
And
I concur and it is so ordered.
______________
JANSE van NIEWENHUIZEN J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearance:
For the Appellant: S Moeng Instructed by Legal Aid SA
For the Respondent: EM Mafunisa Instructed Director of Public
Prosecutions
Date of Hearing 16 April 2026
Date of Judgement May 2026
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