S.M v S (Appeal) (A14/2025) [2025] ZAWCHC 221 (27 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

(WESTERN
CAPE DIVISION, CAPE TOWN)

 
Case No: A14/2025

In
the matter between:

S[…]
M[…]                                                             

Appellant

and

THE
STATE                                                           

Respondent

Court: Justice J
Cloete et Acting Justice De Jager

Heard: 23 May 2025

Delivered
electronically : 27 May 2025

JUDGMENT

CLOETE
J:

[1]       
The
appellant was convicted as charged in the Wynberg Regional Court on
29 April 2024 on two counts of contravening s3 of the Criminal
Law (
Sexual Offences and  Related Matters) Amendment Act [1]
( rape) and one count of contravening s 5(1) of  the
aforementioned Act (sexual assault ). Given that the complainant was

13 years old at the time of commission of the offences, the  counts
of rape attracted the prescribed minimum sentence of life

imprisonment in terms of s 51 (1) read with Part 1 of Schedule 2 of
the Criminal Law Amendment Act [2],
commonly referred to as the so-called minimum sentence legislation.

[2]       
On 16 May
2024 the appellant was sentenced to life imprisonment on each count
of rape and 5 years imprisonment on the count of sexual
assault.
These sentences automatically run concurrently in terms of s
39(2)(a)(i) of the Correctional Services Act.[3]
 The appellant has exercised his statutory right of appeal to
this court in terms of s 309 of the Criminal Procedure Act[4]
in respect of the convictions and sentences for the rape counts. He
was granted leave to appeal the conviction and sentence in
respect of
the sexual assault count by the trial court on 3 September 2024.

[3]       
The following facts became common cause during the trial. The
complainant’s
date of birth is 3 March 2008. The appellant is
her stepfather, who at the time of the alleged offences was 47 years
old and had
been married to the complainant’s mother in terms
of customary law since 25 December 2018. The incidents resulting in
the
appellant being charged occurred sometime during August to
December 2021. The complainant fell pregnant and gave birth to the
appellant’s
son on  6 May 2022 when she was just 14 years
old. It is apparent from the record that the appellant had little
choice but
to admit paternity given that DNA results proved that
there was a 99.9% probability that he was the child’s
biological father.

[4]       
The complainant did not report the incidents to anyone until on
Sunday 17 April 2022
her mother noticed white pre–lactation
fluid on the complainant’s black bra she was wearing as she
prepared to take
a morning bath in preparation for church. Her mother
asked the complainant directly, and she disclosed the incidents to
her. The
complainant’s mother, under the guise of attending
church since the  appellant was in the house,  took the
complainant
to the police station where the matter was reported. The
appellant was arrested the same day.  The  J88, handed in
by
consent, reflects the complainant’s report to Dr. Matanda of
the Thuthuzela Clinic at Heideveld , who conducted her 
medical
examination two days later on 19 April 2024,  that ‘ ..her
stepfather  raped her  three times last
year …”.
Dr. Matanda also recorded  the complainant was approximately 27
weeks pregnant (ie 6 to 7 months) but
recommended an ultrasound
examination; and that his clinical findings were consistent with the
complainant’s report (which
he referred to as evidence) of
sexual assault.

[5]       
The
appellant’s plea explanation and subsequent defence was that of
consent.  Importantly, he made formal admissions
in terms of
s220 of the Criminal Procedure Act at the outset of the trial. [5]
These were that, as alleged in the charge sheet: (a) on count 1, he
had penetrated the complainant’s vagina with his penis;
(b) on
count 2, he had penetrated her vagina with his tongue; and (c) on
count 3, he had touched her breasts. He disputed however
that the
incidents occurred on diverse occasions (as also alleged in the
charge sheet) during the period in question . According
to him, all
three incidents occurred on the same day, but he could not recall the
date. Further details of his version emerged
during the evidence led
by the state. These were that  the complainant seduced him by
showing him photographs of naked individuals
having sexual
intercourse, and that she willingly participated in the incidents.
 Ultimately, therefore, the only two material
issues in dispute
were : (a) whether the incidents occurred on three occasions over the
period in question, or all on the same
day; and (b) whether the
complainant was a willing participant.  (In terms of s 57(1) of
the Criminal Law (Sexual Offences
and Related Matters) Amendment Act,
a child under the age of 12 years is incapable of consenting to a
sexual act).

[6]       
During the trial the complainant and her mother gave evidence on
behalf of the state.
The appellant testified in his defence and
called no other witnesses. It is not necessary to deal in detail with
the evidence given
by the complainant about precisely what occurred,
given the s220  admissions. On the disputed issues,  it  is
clear
from her evidence that  she was consistent in her account
of how, on three separate occasions on a Thursday morning  after

her mother left for work and only she and the appellant ( apart from
her infant brother) were in the house, the appellant instructed
her
to remove her clothing, lie on the bed he shared with her mother, and
committed the offences.

[7]       
She was also consistent in her testimony that she was scared of the
appellant because
he had previously assaulted both her and her
mother, and felt threatened into submitting. Similarly she was
unshaken in her evidence
that on each occasion she had tried to push
the appellant away but he was too strong; on the second occasion he
warned her not
to tell her mother; and on the third occasion the
appellant only desisted after her friend from next door arrived at
the front
gate, the complainant shouted out the friend’s name,
and the friend opened the gate to enter the property.  Finally,

the complainant gave a consistently clear and cogent explanation why
she did not tell her mother earlier, namely that she was scared
of
what the appellant might do to both of them.

[8]       
The complainant denied having shown the appellant photographs as
alleged (she was
cross-examined about mentioning videos rather than
photographs but nothing turns on this because her denial  that
she showed
him anything was emphatic throughout her evidence.)
 Questions put to her on behalf of the appellant about the
intimate details
of each incident were irrelevant, given his earlier
formal admissions in terms of s 220.

[9]       
The complainant’s mother confirmed the report was made to her
after she questioned
the complainant on 17 April 2022. She
corroborated the complainant’s testimony in relation to the
report and what occurred
thereafter in all material respects. In
particular, she confirmed her observation of the complainant’s
bra; that she took
the complainant directly to the police under the
guise of going to church; and testified that she did so because both
she and the
complainant were scared of the appellant, having both
been assaulted by him previously. She also repeated that the
complainant
feared the appellant and she was thus  not surprised
that in the circumstances the complainant had not made an earlier
report
to her. In any event, in terms of s 59 of the  Criminal
Law (Sexual Offences and Related Matters) Amendment Act, a court may

not draw any inference solely from the length of a  delay
between the alleged commission of an offence and the reporting
thereof.

[10]    
In his testimony the appellant gave what was clearly an embellished
version of how the complainant
allegedly seduced him, including a
number of salacious details that were not put to the complainant on
his behalf during her evidence.
He even went so far as to claim 
the complainant had “craved“ sexual attention from him.
Contrary to his earlier
version that all three incidents occurred on
the same day, he testified that they constituted one single
continuous event. Again,
contrary to his earlier version that he
could not recall when this occurred, he was suddenly able to remember
that it was in August
2021.He downplayed the evidence of the
complainant that he had previously assaulted her, maintaining it was
only a matter of two
slaps because she asked him for money, was
insolent, and he had become “a little bit angry”.  This
too had not
been put to the complainant or indeed her mother, who
according to the appellant was present at the time.  He admitted
however
that the alleged slaps were given only a month before the
complainant, according to him, could no longer resist his physical
charm
and seduced him, and that she was generally a very obedient
child. He had apparently been bemused by the sudden change in her
behaviour.

[11]    
The falsity of his version is also demonstrated by his belated claim
that the complainant  threatened
him with the words “ I
will get you” if he did not succumb to her sexual demands.  The
appellant repeatedly contradicted
himself on what had occurred during
the commission of the offences; and during cross-examination conceded
that he had not only
previously slapped the complainant but “might
have kicked her“ too. He also admitted smacking the
complainant’s
mother and kicking her on the same occasion when
the mother tried to defend her. Importantly he eventually conceded
that both the
complainant and her mother were already afraid of him
prior to the rapes and sexual assault.

[12]    
The trial court accurately summarised the evidence and the law,
including that pertaining to the evidence
of a single witness. She
was correct in her finding that the complainant was a credible and
reliable witness; that the complainant’s
mother corroborated
her version in all material respects in relation to the prior
assault, the report and what occurred thereafter,
and that the
appellant adapted his version whenever the shoe started to pinch. She
was also correct in her conclusion that the
state proved its case
beyond reasonable doubt and the appellant’s version should be
rejected as not reasonably possibly true.
 This dispenses with
the appellant’s grounds of appeal as contained in his notice of
appeal, and the appeal against
conviction fails.

[13]    
Turning now
to sentence.  The appellant was a first offender who reached the
age of 47 years without any known brushes with
the law. He was in
custody from the date of his arrest (about two years). His personal
circumstances are unremarkable. This was
a particular heinous series
of offences, and the record reflects the devastating impact on the
complainant and her mother, both
in their evidence and the
complainant’s victim impact report. This is one of those cases
where the appellant’s personal
circumstances and clean prior
record must necessarily recede into the background :
S v Vilakazi[6]. In
her carefully reasoned judgment the trial court again referred to the
applicable legal principles and weighed all relevant facts
and
circumstances. She correctly concluded that there were no substantial
and compelling circumstances to justify a deviation from
the
prescribed minimum sentence, or that the imposition of life
imprisonment would be disproportionate to the crimes of which the

appellant was convicted. There is no basis for this court to
interfere. It follows that the appeal against sentence must also
fail.

[14]    
The following order is made:

The appellant’s
appeal against both conviction and sentence are dismissed.

J I CLOETE

Judge of the High Court

I
agree

N
C DE JAGER

Acting
Judge of the High Court