THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  482/07
REPORTABLE

In the matter between:

MALCOLM WILLIAM EGGLESTONE                                          APPELLANT

v

THE STATE                                                                               RESPONDENT

Coram:
Farlam, Mlambo JJA, Mhlantla AJA

Heard:
28 February 2008

Delivered:
30 May 2008

Summary:
Criminal Law – appeal against multiple convictions and sentence – consent –
what is –  indecent assault – what is – S v F still the law – owner of escort
agency having sexual intercourse with and indecently assaulting prospective
prostitute during on-the-job training – participation in training not amounting
to consent – convictions for rape and indecent assault confirmed.

Order in para [29].

Neutral citation:  This judgment may be referred to as Egglestone v The
State (297/2005) [2008] ZASCA 77 (30 May 2008).

(Dissenting Judgment p 16)

MLAMBO JA

[1] This is an appeal against convictions for rape, kidnapping, common
assault, indecent assault and a sentence of 10 years’ imprisonment. The
appellant was originally arraigned in the Cape Town Regional Court where he
faced a total of 11 charges made up as follows: rape (count one); indecent
assault (count two); assault (count three); kidnapping (count four); indecent
assault (count five); kidnapping (count six); indecent assault (counts seven,
eight, nine and ten) and rape (count eleven). The offences were allegedly
committed during March to May 1997 save for those in counts eight to eleven
which were alleged to have taken place in February 1998. The trial started on
9 April 1999 and was concluded three years later on 22 May 2002 when the
appellant was convicted on counts one to five and eight to ten.

[2] On 30 October 2002 the regional court sentenced the appellant to
12 years’ imprisonment structured as follows: 10 years on counts one and two
taken together for purposes of sentence; six months on count three, two years
on count four, one year on count five and six months on counts eight to ten all
taken together for purposes of sentence. It was ordered that the sentences
imposed on counts three, five and eight to ten were, in terms of s 280(2) of
the Criminal Procedure Act 51 of 1977, to run concurrently with the 10 year
sentence imposed on counts one and two.

[3] In an appeal before the Cape High Court (Ngwenya J and Wille AJ),
heard on 18 March 2005, the appellant’s conviction on counts nine and ten
was set aside as well as the 12 year sentence. The High Court imposed a 10
year imprisonment sentence structured as follows: 10 years’ imprisonment on
counts one to four all taken together for purposes of sentence and six months
imprisonment regarding the convictions on counts five and eight which was
ordered to run concurrently with the 10 year sentence. On the same day the
High Court granted the appellant leave to appeal to this court regarding the

conviction on counts five and eight and the six month imprisonment sentence
imposed in respect of those counts. Leave was refused regarding the
conviction on counts one to four and the sentence imposed in that regard but
on 27 July 2005 this court granted the appellant special leave to appeal to this
court regarding his conviction on those counts and the sentence imposed in
respect thereof.

[4] The charge sheet alleged that during April and May 1997 the appellant
raped Natasha Lindeboom (count one); assaulted her indecently by pulling
down her panties, touching her vagina and having anal intercourse with her as
well as forcing her to put his penis in her mouth (count two); assaulted her
with his open hand (count three); deprived her of her liberty of movement by
preventing her from leaving his premises at Erf 851, Somerset-West, Cape
Town (count four) where all the offences save for the one in count eight were
allegedly committed; that he indecently assaulted Monica Wessels by taking
off her bra and touching her breasts (count five) and that on or about
22 February 1998 at or near Cape Town the appellant indecently assaulted
Lee-Ann dos Santos by touching her leg, rubbing her stomach and trying to
touch her breasts as well as kissing her on her mouth (count eight).

[5] All the complainants were high school teenagers from the
impoverished communities around the Cape Peninsula recruited by the
appellant to work for him as escort agency prostitutes. The recruitment took
place by means of pamphlets distributed by other female employees of the
appellant. The job advertised in the pamphlets was however that of lingerie
modelling. Natasha Lindeboom (Lindeboom), the complainant in counts one
to four was walking home from school when she was handed one of the
pamphlets. She showed interest in the job but preferred to seek her parents’
permission to go for an interview. The appellant personally spoke to her
mother who gave her consent for Natasha to attend the interview. It is not
clear from the record whether the appellant was candid with Natasha’s mother
about the true nature of the job. Natasha and her younger sister Nicolette,
who was also a potential recruit, were interviewed at a restaurant.

[6] During this interview Natasha and Nicolette learnt that the job did not
just entail modelling lingerie but working in an escort agency as prostitutes
where they would be expected to perform certain sexual acts and provide
sexual favours to clients. It appears that they were informed that they were at
liberty to choose what part of the job they would prefer for instance as
receptionists and/or lingerie models excluding sexual activities. However,
irrespective of the job they preferred, it appears that they were informed that
they had to be trained as all inclusive escort agency prostitutes,
encompassing the whole spectrum of a prostitute’s work, such as rendering
private shows and different kinds of sexual favours to clients.

[7] After the restaurant interview the Lindeboom sisters were taken to the
appellant’s premises in Somerset West called the Stables. The premises were
highly secured and structured in the form of a reception area, negotiation
rooms, private rooms as well as show rooms for private shows and modelling.
There the appellant instructed the sisters at intervals to undress and provided
them with lingerie to put on. He then proceeded to fondle their breasts and
their genitals which was apparently a continuation of the interview. Afterwards
the sisters were taken to their home where Nicolette declined the job offer
whilst Natasha accepted and was fetched the next day to start working for the
appellant. It is not in dispute that during Lindeboom’s stay at the Stables she
participated in so-called training sessions carried out by the appellant during
which he would have touched and fondled her breasts and genitals, led her to
perform a pelvic massage and to have normal sexual intercourse as well as
oral and anal intercourse with him.

[8] Monica Wessels (Wessels), the complainant in count five, also went
through the restaurant interview. On arrival at the Stables she was also
instructed to undress and it was during this incident that the appellant fondled
her breasts. She, however, never took up the job offer despite expressing
interest. In so far as Lee-Ann dos Santos (Dos Santos) (the complainant in
count eight) is concerned, she participated in the selling of teddy bear gifts for
the appellant at restaurants and other public places. It was during one of such
jaunts that the appellant kissed her on her mouth and rubbed her on her leg

and stomach.

[9] The issue before us is whether the court a quo was correct in
dismissing the appellant’s appeal and in upholding the trial court’s view that
the state had succeeded in proving his guilt on the remaining counts.
[10] It is appropriate to start by briefly considering what amounts to indecent
assault. An authoritative discussion of the nature and meaning of the offence
is found in S v F 1982 (2) SA 580 (T) where it was held that indecent assault
is committed even though the violence is not directed at the complainant's
sexual organs. It is the accused's intention, manifested in words or conduct,
that is important and not necessarily the act. In order to constitute the offence,
it is not necessary, however, that the complainant's sexual organs should
actually have been touched. Any action whereby the accused aims with some
part of his or her body at the sexual organs of the complainant is sufficient. In
this regard Ackermann J stated that (at 585):

‘Ek is gevolglik van mening dat daar wel gekyk kan en moet word na die uitgesproke
bedoeling van 'n beskuldigde soos oorgedra aan die klaer (hetsy deur woorde, gedrag of by
implikasie) om vas te stel of ‘n aanranding ‘n onsedelike aanranding daarstel.’

[11] In S v Kock 2003 (2) SACR 5 (SCA) at p 10 par 9 Heher JA remarked
that:

‘Indecent assault is in its essence an assault (not merely an act) which is by its nature or
circumstances of an indecent character.’

Counsel for the appellant sought to persuade us that in this passage this court
overturned S v F in so far as the definition of indecent assault is concerned. I
do not agree. In my view S v Kock only introduced an objective test of
indecency and left the position expressed in S v F intact. In fact no exhaustive
discussion of the offence was done in S v Kock nor was there any reference
to S v F. I have no doubt that the position in this regard remains as
authoritatively set out in S v F.

[12] Perhaps some comment is also apposite regarding the required
approach to evidence in sexual offence cases. As already mentioned, in S v
Jackson 1998 (1) SACR 470 (SCA) this court discarded the so-called
cautionary rule which was the norm in sexual offence cases. In that case this
court ruled that the burden on the state is to prove the case beyond a
reasonable doubt – no more, no less. The evidence may, however, call for a
cautionary approach but that is a far cry from the application of a general
cautionary rule. Hot on the heels of S v Jackson came S v M 1999 (2) SACR
548 (SCA) where S v Jackson was reinforced.1

[13] Against this background I turn to the facts of this case. The basis of the
appeal against the convictions on the Lindeboom counts (counts one to four)
is that the trial court erred in finding that Lindeboom was a credible witness; in
accepting her evidence; in rejecting the appellant’s version of events, and in
finding that Lindeboom was not in the Stables of her own free will.  In this
regard it was submitted that Lindeboom had voluntarily come to the Stables
and had stayed there throughout at her own free will; that at no time did she
request or demand to be taken home; that she expressly consented to him
fondling and touching her; that she was willing and consented to undergo the
training he offered her as an all inclusive escort agency prostitute; that the
training he provided entailed his role playing a potential client, necessitating
that he perform various actual sexual acts with her, to prepare her for the
work ahead and that she consented to all the sexual activity that took place
between them. It was submitted that Lindeboom understood this fully and any
wrongdoing was denied. It was further submitted that there was only one
incident of sexual intercourse during training between them during the first
week and that further sexual intercourse between them was not related to
training but was fully consensual as they had become lovers.

[14] Regarding the Wessels indecent assault count (count 5) the appellant

1 At p 555b-c: ‘The factors which motivated this Court to dispense with the cautionary rule in
sexual assault cases apply, in my view, with equal force to all cases in which an act of a
sexual nature is an element. The reasons given by Olivier JA at 474f-477d in S v Jackson
therefore require no elaboration or qualification in relation to the crime of incest and I proceed
to consider the evidence without the restraints imposed by the cautionary rule.’

contends that the trial court erred in finding that Wessels had not consented to
his conduct. It was submitted that when he handled her breasts he had her
consent to touch her that way. Regarding the Dos Santos indecent assault
count (count eight) the submission was that the trial court erred in accepting
her version and in finding her to have been a credible witness and also finding
that the appellant’s conduct was objectively indecent. It was submitted that
the appellant intended to congratulate her by kissing her on her cheek but she
suddenly turned to face him and he thereby accidentally kissed her on her
mouth. As far as rubbing her leg and stomach was concerned, it was
submitted that he did this simply to congratulate her on making good teddy
bear gift sales and that he meant nothing other than just to express his
appreciation for her good performance.

[15] It is well established that as an appeal court we are at large in the
event of a misdirection on fact by the trial court, to ‘disregard the trial court’s
findings of fact, even though based on credibility, in whole or in part according
to the nature of the misdirection and the circumstances of the particular case;
. . .’ and arrive at our own conclusion.2 As always the correct approach in the
assessment of an accused’s guilt or innocence is that all the evidence must
be taken into account.3

[16] The trial court accepted Lindeboom’s evidence and found that she was
kept at the Stables against her will by the appellant and that during her stay
there he raped her, assaulted her by slapping her on her face, as well as
indecently assaulting her when he penetrated her anally. It is not clear
however from the trial court’s judgment whether all or some, and if so, which
of the incidents of sexual intercourse that took place between the appellant
and Lindeboom gave rise to the rape conviction. I mention this because
Lindeboom testified that on the Wednesday of the first week at the Stables,
the appellant raped her and that during the second week she had sexual

2 R v Dhlumayo 1948 (2) SA 677 (A) at 706. See also S v Heslop 2007 (1) SACR 461 (SCA)
at 472c.
3 S v Gentle 2005 (1) SACR 420 (SCA) at 433h-l; S v M 2006 (1) SACR 135 (SCA) at p 183
para 189.

intercourse with him on two further occasions. It is, however, apparent from
the trial court’s judgment that the reasoning that primarily led to the conviction
of the appellant on the Lindeboom counts was its finding that there was no
evidence that the appellant was in the process of starting an escort agency
business. The trial court reasoned that it could also find no evidence of the
appellant’s other businesses such as the selling of gifts at restaurants and
other public places.

[17] In coming to this finding the trial court overlooked objective and
uncontested evidence which established as a matter of fact that the appellant
was in fact engaged in the establishment of an escort agency. For instance
the recruitment modus operandi and the structure of the Stables fitted in with
the business that he said he was establishing which, he testified, was how it
was done in the industry. The appellant’s evidence in this regard is
undisputed. In my view, the trial court misdirected itself when it overlooked
this evidence about the appellant’s business activities.

[18] It is also clear that the trial court also misdirected itself when it
accepted Lindeboom’s evidence that she had been kept at the Stables
against her will. In arriving at this conclusion the trial court ignored common
cause evidence to the effect that Lindeboom had come to the Stables
voluntarily and had at no stage requested and/or demanded to be taken
home. There is also uncontested evidence that Lindeboom had a number of
opportunities to escape or simply walk away if she was so inclined but she did
not. Clearly the State had failed to prove beyond reasonable doubt that
Lindeboom was kept at the Stables against her will and was deprived of her
freedom throughout her stay there. The kidnapping conviction can therefore
not stand.

[19] However, in so far as Lindeboom’s rape and indecent assault is
concerned, my view is that the court a quo was correct in upholding the trial
court’s conclusion in that regard. Regarding the Wednesday rape she testified
that after the rape, she took a shower, staying there for a whole hour
contemplating what had just happened to her. Thereafter, when she had an

opportunity she telephoned Nicolette and reported the rape. Nicolette
confirmed that her sister had reported the rape to her in that telephone
conversation. She testified that she did not know what to do, but decided to
phone her sister’s boyfriend, Bradley, to tell him of the telephone call from her
sister. It is common cause that in the early evening of that Wednesday,
Bradley called Lindeboom on the appellant’s cell phone. Bradley could
however not be called to testify about the content of the telephone
conversation he had with Nicolette and with Lindeboom as he could not be
located.

[20] The appellant denied that he had sexual intercourse with Lindeboom
on that Wednesday. Whilst he disputed this rape allegation he admitted the
telephone call with Bradley. His version is that the first sexual encounter
between him and Lindeboom where he actually penetrated her was on the
Thursday of the first week and that this was purely part of her training as an
all inclusive escort agency prostitute. He stated that he was role playing a
client when he penetrated her. This also was his explanation regarding his
penetrating her anally the next day. This, he stated was also part of her
training and that she was a willing and consenting trainee, so to speak.
Furthermore he testified that the sexual intercourse between them on the
Monday and Tuesday of the next week was fully consensual and that it had
nothing to do with training. His version was that he had become estranged
from his girlfriend, Tamsyn, and as he had been sleeping in Lindeboom’s bed
during that time a relationship had arisen between them leading to their
having sexual intercourse on the stated occasions. He admitted though that
she was reluctant at first, during training, to participate in explicit sexual
activity with him. In fact he stated, with regard to the anal intercourse, that he
realized after penetrating her for the first time that she was uncomfortable and
he stopped. He testified that he realized at that stage that this was an activity
she could simply not perform and that it would have to be excluded from her
tasks. He also stated that she could not perform pelvic massages, having
failed, apparently, to perform one on him during training.

[21] It is so that as far as the Wednesday rape is concerned Lindeboom

contradicted herself about when this rape would have happened. She stated
in her examination-in-chief that the rape happened during the day, but in
cross-examination she said it happened in the evening. Furthermore in her
first police statement about her ordeal at the Stables she did not mention the
Wednesday rape at all. In relation to the sexual intercourse incidents of the
next week, Lindeboom was clear that the respondent had relentlessly tried to
have sexual intercourse with her but she had steadfastly resisted. She
testified that she succumbed to his advances during the second week
because she had lost the will to resist him anymore and allowed him to have
sex with her so that he could leave her alone. She was unshaken in cross-
examination that from the second day of her stay at the Stables, she was
confronted with the appellant’s advances for sexual intercourse. These, she
said, were aided by Ronel Dunbar and Tamsyn who took turns in trying to
persuade her to give in to the appellant’s demands. At some stage Tamsyn
slapped her on her face because of her continued refusal to give in to the
appellant’s demands.

[22] It is clear from the evidence that the appellant was astute in what he
was doing because he would come into Lindeboom’s room and get under the
blankets of her bed without saying a word. She testified that he would then
fondle her but she would stop him. This happened for a couple of days until
the Wednesday when he forced himself on her. I do not doubt that the
Wednesday rape occurred despite the contradiction about when it took place.
Her call to Nicolette that afternoon and Bradley’s telephone call to her in the
evening is uncontested. That is the one and only night that Bradley called her
and, in my view, this was no coincidence, it is because Nicolette had reported
to him what her sister had relayed to her. I am further of the view that the
appellant’s version of Lindeboom and him having become lovers leading to
their having sexual intercourse on the second week, was also correctly
rejected. Lindeboom had, by the second week clearly become worn out by the
pressure to give in to the appellant’s advances, and did so on the Monday and
Tuesday. She was correctly believed when she stated that no relationship had
materialised between her and the appellant.

[23] The appellant’s submission that Lindeboom’s willingness to dress in
lingerie and take part in training was proof of her consent for him to have
sexual intercourse with her cannot be accepted. No mention of actual sex
during training was mentioned during the interviews and anyway the appellant
was her employer and not a client who had paid for sexual favours. This
notion that as an employer he was entitled to have sexual intercourse with her
as his trainee employee, as part of job training, is fallacious. It amounts to a
situation where the trainee employee, in order to get the job, has no choice
but to submit to his sexual exploits irrespective of her feelings and inclination.
In my view, the appellant’s conduct is a classic illustration of a power situation
where as an adult twice Lindeboom’s age and in control of the Stables he
simply did as he pleased with her. One important manifestation of this is his
brazen conduct of simply sleeping in her bed, uninvited. He was clearly in a
dominant position and simply asserted this dominance by forcing himself on
her.4 His appeal on the rape and indecent assault convictions (counts one and
two) cannot succeed. One must further not forget that Lindeboom was clear
that she had agreed to work as a receptionist and that her willingness to take
part in training was because the appellant had told her that she nevertheless
had to do it. She was unshaken in cross-examination that she did not consent
to sexual intercourse even though she took part in training.

[24] It was also submitted that Lindeboom’s continued stay at the Stables,

4 Masiya v Director of Public Prosecutions, Pretoria and Another (Centre For Applied Legal
Studies And Another, Amici Curiae) 2007 (2) SACR 435 (CC) para 36: ‘. . . historically, rape
has been and continues to be a crime of which females are its systematic target. It is the most
reprehensible form of sexual assault constituting as it does a humiliating, degrading and
brutal invasion of the dignity and the person of the survivor. It is not simply an act of sexual
gratification, but one of physical domination. It is an extreme and flagrant form of manifesting
male supremacy over females. (See S v Chapman 1997 (2) SACR 3 (SCA) (1997 (3) SA 341)
at 344I-345B (SA). This Court has said in S v Baloyi 2000 (1) SACR 81 (CC) (2000 (2) SA
425; 2000 (1) BCLR 86) at para [12] that rape, like domestic violence, is “systemic, pervasive
and overwhelmingly gender-specific . . . [and] reflects and reinforces patriarchal domination,
and does so in a particularly brutal form”.’
See also S v Ferreira 2004 (2) SACR 454 (SCA) para 40 where the following is stated:
‘Sexual violence and the threat of sexual violence goes to the core of women’s subordination
in society. It is the single greatest threat to the self-determination of South African women. It
also, therefore, means having regard to an abused woman accused’s constitutional rights to
dignity, freedom from violence and bodily integrity that the abuser has infringed. (S v
Chapman 1997 (2) SACR 3 (SCA) at 5b-f (1997 (3) SA 341 at 344J-345E); the Constitution,
ss 10, 12(1)(c) and 12(2)).’

despite the activities she was supposedly coerced into, is clear evidence that
she was a willing participant in those activities. This is besides the point.
Lindeboom was not contradicted when she testified that she accepted the job
because her family was struggling financially and she actually left school to do
it. There is nothing to gainsay the suggestion that her continued stay at the
Stables was influenced by the appellant’s promises to her and her mother that
she would make a lot of money working for him. Furthermore, in so far as the
supposedly consensual sexual intercourse with her during training is
concerned, it cannot be stated that she was a novice in sexual matters and as
such needed to be ‘trained’ on how to have sexual intercourse with potential
clients. Lindeboom was, on the facts of this case, a teenager who had a
boyfriend and knew exactly what sexual intercourse was. As I have already
stated, the notion that training as a prostitute encompassed actual sexual
intercourse with one’s employer is besides me, more so when one is dealing
with a person who knew what sexual intercourse was.

[25] It was further submitted on the appellant’s behalf that Lindeboom’s
conduct after she left the Stables is not consonant with someone who had,
amongst other things, been raped. It is true that she testified that she reported
to her mother that she had been raped but nothing was done about her report.
The argument was that one would have expected her to have insisted on
going to the police or even her mother would have gone to the police when
she heard this, neither did so, instead they went to have a Mothers’ day lunch.
It was only after Lindeboom’s mother discussed the matter with a neighbour a
few days later that the neighbour encouraged them to contact the police,
which they did. I do not agree that this demonstrates that no sexual
wrongdoing had taken place. On the facts of this case, I cannot accept the
suggestion that Lindeboom should be disbelieved simply because she did not
behave in the manner suggested. This approach, in my view, unfairly puts
her, as a rape complainant, in the position of an accused in which the
appellant, as the real accused, stands to profit should it be found that the
complainant’s failure to conduct herself in a certain manner means she either
consented
or
is
simply
falsely
implicating
the
appellant.
Judicial
pronouncements against this approach have been unfortunately few and far

between. See, however, S v M (supra) where Cameron JA in my view, aptly
expressed the correct approach.5 In this case the fact that there was no
urgency in reporting to the police can never be a basis to find that no rape had
occurred. It must also be stated that the conviction for assault involving
Lindeboom cannot stand. No such evidence was led. The only assault on her
was the slap she got from Tamsyn.

[26] As far as Wessels is concerned, she was clear when she testified that
although she was surprised, she did not object to the appellant undressing her
and helping her loosen her bra and touching her breasts. In her evidence she
stated that ‘dit was snaaks’ but she just wanted him to do what he had to so
that she would leave. He had given her no prior warning that he was going to
fondle her breasts. The test relating to indecent assault is an objective one.6 It
has nothing to do with the fact that the complainant objected or not. Clearly,
the appellant’s conduct of touching Wessels’s breasts, a total stranger at that
time, is clearly objectively indecent. The same goes for the appellant’s
conduct of rubbing Dos Santos’s leg and stomach. The same cannot,
however, be said about the kiss. His version of how this happened is
sufficiently plausible.

[27] Finally I am of the view that taking all the evidence into account, the

5 At para 272: ‘Accused persons are entitled to be acquitted when there is reasonable doubt
about their guilt. That does not make it necessary or permissible for motives to be freely
imputed to sexual offence complainants at appellate level when these were not fairly and
properly explored in their testimony. To permit this would threaten return to the indefensible
days when complainants were treated as inherently unreliable, inherently inclined to false
incrimination, and inherently disposed to destructive jealousy in relation to their consensual
male sexual partners.’
See also Holtzhauzen v Roodt 1997 (4) SA 766 (W) at 778 where the following was stated:
‘However, rape is an experience of the utmost intimacy. The victims or survivors thereof are
largely confined to the female sex. I have heard the response of such survivors generically
described as “a scream from silence”. The result has been a paucity of South African legal
and judicial understanding and commentary on the full parameters and implications of this
phenomenon. Rape is an experience so devastating in its consequences that it is rightly
perceived as striking at the very fundament of human, particularly female, privacy, dignity and
personhood. Yet, I acknowledge that the ability of a judicial officer such as myself to fully
comprehend the kaleidoscope of emotion and experience, of both rapist and rape survivor, is
extremely limited.’
6 S v Kock (supra).

State had succeeded in proving the guilt of the appellant regarding all the
rape incidents involving Lindeboom as well as the indecent assaults on her
and on Wessels and Dos Santos. Those convictions were therefore properly
arrived at and the court a quo cannot be faulted in upholding them. A factor
that, I think, must not be lost sight of in this case is that even though
Lindeboom, Wessels and Dos Santos voluntarily went to the Stables, this did
not mean that this was a licence for their dignity and integrity to be violated at
will by the appellant. It appears from the appellant’s evidence that this is what
went on in his mind. He had targeted vulnerable young women who would
respond to the prospect of making money due to their poverty. To him,
immediately they came to his premises and were willing to go through with the
interview and training, he was at liberty simply to do with them as he pleased.
This, in my view, betrays the appellant’s real intention that as long as they
were on his premises they were his chattels to violate at will. Their dignity and
integrity irrespective of the job they enlisted for, should have been respected
at all times.7

[28] In so far as sentence is concerned, I am of the view that the sentence
imposed for the rapes was lenient. Rape has been described as a horrific
offence deserving of appropriately severe punishment which sends out a clear
message to would be offenders.8 Despite my view about the leniency of the

7 Mahomed CJ in S v Chapman 1997 (2) SACR 2 (SCA) at 5b-e stated: ‘The rights to dignity,
to privacy and the integrity of every person are basic to the ethos of the Constitution and to
any defensible civilisation. Women in this country are entitled to protection of these rights.
They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their
homes without the fear, the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives.’
8 S v Chapman (supra) at 5b: ‘Rape is 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.’ See also S v Mojaki 2006 (2) SACR 590 (T) at 591: ‘Rape is a very serious offence,
so serious that I doubt whether those who are not women will ever be able to fully understand
its effect on the victim. It violates the dignity of the person being raped. More so when it is
perpetrated on young, defenceless and innocent ones. Children are entitled to be children.’
See also Chapman (supra) at 5e: ‘The courts are under a duty to send a clear message to the
accused, to other potential rapists and to the community: We are determined to protect the
equality, dignity and freedom of all women, and we shall show no mercy to those who seek to
invade those rights.’

sentence imposed for the rapes, I am not at large to interfere in that regard
merely because I would have imposed a different sentence. There is no cross
appeal in this regard and besides the fact that the sentence is lenient does not
necessarily mean that it is so light that it induces a sense of shock. However,
the setting aside of the kidnapping conviction means that sentence has to be
reconsidered as the court a quo imposed one sentence for the kidnapping, the
rapes and indecent assault on Lindeboom. Taking all the circumstances of the
matter into account a sentence of eight years for the rapes and indecent
assault of Lindeboom appears appropriate when taken together for purposes
of sentence. I would also order that the sentence of six months’ imprisonment
imposed for the indecent assaults on Wessels and Dos Santos should run
concurrently with the sentence of eight years.

[29] In the circumstances the following order is made:

29.1 The appeal against the convictions on count three and four
succeeds and those convictions are set aside.

29.2 The appeal against the convictions on counts one, two, five and
eight is dismissed.

29.3 The sentence of 10 years imposed by the court a quo is set
aside and in its stead is substituted a sentence of eight years’
imprisonment.
29.4 The sentence of six months imposed for the convictions in count
five and eight is confirmed. It is ordered that this sentence shall run
concurrently with the sentence of eight years.

_________________
D MLAMBO

JUDGE OF APPEAL
CONCUR:
MHLANTLA AJA
FARLAM JA

[30] I have had the advantage of reading the judgment of my colleague
Mlambo JA in this matter. I agree with his conclusion that the appeal against
the convictions on counts three and four should be upheld and that the appeal
against the convictions on counts five and eight should be dismissed. As far
as the conviction on count one is concerned I agree that it should be upheld
but only in respect of the rapes committed on the Monday and Tuesday of the
second week of Natasha Lindeboom’s stay at the Stables: I do not think that a
rape on the previous Wednesday has been proven. I also think that the
appeal against the conviction on count two should be upheld. I further do not
agree regarding the sentence to be imposed.

[31] At the outset it must be pointed out that, as my colleague has found,
the magistrate misdirected himself materially to such an extent that this court
is obliged to decide the case purely on the record (without having the benefit
of seeing the witnesses) with the result that the question of onus becomes all-
important (see R v Dhlumayo 1948 (2) SA 677 (A), principles 11 and 13).

[32] As far as count one is concerned I am satisfied, having read and re-
read the relevant parts of the record and having had regard to what was put in
cross-examination to the complainant and what the appellant said in his
evidence, that the complainant submitted to his advances without actually
consenting and that he was reckless as to whether she consented or not. His
evidence as to the way she responded to his lovemaking, which was not put
to her in cross-examination, was, in my view, false and reinforces my
conclusion that he was in fact reckless. As far as the alleged rape on the
Wednesday is concerned the complainant’s boyfriend was not called and it is
dangerous to speculate as to what he would have said if he had given

evidence. The complainant contradicted herself as to when on the
Wednesday the rape occurred and did not mention it at all in her first police
statement. Obliged as we are to decide the case on the record I do not think
we can be satisfied in the circumstances that the complainant was raped on
the Wednesday of the first week.

[33] As far as count two is concerned it is common cause that the
complainant agreed to undergo training as what was euphemistically called an
all-inclusive lingerie model, ie as a prostitute. It is also clear, in my view, from
the record that at each stage in the training he asked the trainee if he could
proceed and made it clear to her that if she did not want to carry on he would
stop. In those circumstances I do not see how it can be found that in doing
what he did he realised that she was not consenting or that he was reckless
as to whether she consented or not. It follows that in my view the appeal
against this conviction should succeed.

[34] As far as the appeal against the sentence is concerned, I think that the
trial court and the court a quo erred in failing to take into account that the
appellant had been in custody as an awaiting trial prisoner for four and a half
years and that his health deteriorated badly during that period. He had also
lived in daily fear of assault and rape. Counsel for the appellant referred in this
regard to Schutz J’s approving reference (in S v Stephen 1994 (2) SACR 163
(W) at 168f) to the Canadian decision of Gravino (70/71) 13 Crim L Q 434
(Quebec Court of Appeal) in which it was said: ‘Imprisonment whilst awaiting
trial is the equivalent of a sentence of twice that length.’

[35] While I would hesitate to give general approval to that statement, I
think that the circumstances of the appellant’s pre-conviction incarceration
justify its application here. I fully endorse what was said in the cases cited in
my colleague’s judgment regarding the seriousness of the crime of rape but I
think that the factor to which I have just referred should have been taken into
account and that the sentence of ten years’ imprisonment imposed by the
court a quo should be replaced by a sentence of six years’ imprisonment.

……………..
IG FARLAM
JUDGE OF APPEAL

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
30 May 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

Malcolm William Egglestone v The State

The Supreme Court of Appeal today dismissed an appeal by Malcolm William
Egglestone against his conviction on rape and indecent assault charges. His
appeal on his conviction on assault and kidnapping charges was however
upheld.

The facts, briefly, are that Egglestone had recruited female teenagers under the
pretext that he would employ them as lingerie models. His real intention was to
employ them as prostitutes in his escort agency. Whilst in his care he performed
certain indecent acts with them and had sexual intercourse with one of them.
He said they had consented thereto and that it was also part of their on-the-job
training. The Supreme Court of Appeal, upholding the finding of the regional
court and Cape High Court (on appeal), concluded that he had been properly
convicted on the rape and indecent assault charges. The court, however,
upheld his appeal against the conviction in respect of the assault and
kidnapping charges. In regard to sentence the Supreme Court of Appeal
reduced a 10 year sentence of imprisonment to an effective eight years
imprisonment.