THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable

Case no: 429/2022
In the matter between:

SIMON MAILA
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Maila v The State (429/2022) [2023] ZASCA 3 (23 January 2023)

Coram:
MOCUMIE, CARELSE and MOTHLE JJA and MJALI and SALIE AJJA

Heard:
14 November 2022

Delivered:  23 January 2023

Summary:  Criminal law and procedure – evidence of a single child witness in a rape
case – the double cautionary rule – contradictory evidence – admission of a warning
statement obtained illegally – alibi defence – motive as a defence – sentence –
whether there are substantial and compelling circumstances justifying a lesser
sentence than life imprisonment.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (Phatudi J and
Ndlokovane AJ, sitting as court of appeal):
The appeal against the conviction and sentence is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mocumie JA (Carelse and Mothle JJA and Mjali and Salie AJJA concurring):
[1] Rape remains under-reported nationally, but there may be no rapes more
hidden than those committed within families.1 Sexual violence victims ‘often
experience a profound sense of shame, stigma and violation’.2 These factors are
compounded by attempts from family members of the victim or the perpetrator to
influence the victims not to file charges or, if charges have been filed, to withdraw the
case so that the families can resolve the problem amicably. Often the perpetrator
offers to pay the medical costs for the victim’s medical treatment, including
psychological treatment, and even maintenance of the family in cases of indigent
families.

[2] This appeal concerns the rape of a 9-year-old girl, who was raped in 2010, in
her home, which she shared with her uncle (the appellant), his young son, her mother,
her grandmother and her aunt. The rape occurred during the day when her mother,
grandmother and aunt were not at home.

[3] The appellant was convicted by the Regional Court in the Regional Division of
Limpopo, Lenyenye of the rape of his 9-year-old niece and sentenced to life
imprisonment. In terms of s 309(1) of the Criminal Procedure Act 51 of 1977 (the CPA),

1 See news24 article, https://www.news24.com/health24/news/public-health/rape-within-families-
remains-under-reported-20150821-2.
2 UNODC Handbook for the Judiciary on Effective Justice Responses to Gender-based Violence
against Women and Girls at 25.

read with s 10 and s 43(2) of the Judicial Matters Amendment Act 42 of 2013 (JMA
Act of 2013), once the regional court imposed the sentence of life imprisonment, the
appellant was entitled to an automatic right of appeal to the full bench of the high court.
The full bench of the Limpopo Division of the High Court, Polokwane (per Phatudi J
and Ndlokovane AJ) dismissed the appeal on both conviction and sentence. The
appeal before us (in respect of both the conviction and sentence) is against the
judgment of the full bench, with special leave of this Court.

[4] Both the trial court and full bench found that the appellant raped the
complainant. Counsel for the appellant contended that the State did not prove its case
beyond reasonable doubt; that the trial court misdirected itself materially by admitting
a self-incriminating warning statement, which was purportedly made by the appellant
before a police officer of the rank of a warrant officer; that the appellant was allegedly
assaulted by the police and the complainant’s mother to make that statement; and,
furthermore, that the trial court did not take into account the discrepancies in the
evidence of the complainant and also disregarded the alibi defence raised by the
appellant.

[5] The issues for determination before this Court are whether the appellant was
properly convicted on the evidence of a single witness; and whether the trial court
correctly admitted the warning statement – which was illegally obtained – and in which
he incriminated himself.

Background Facts
[6] The facts of this case are briefly as follows. On 6 December 2010, the
complainant was home with her cousin, Shaun, the appellant’s young son (a year older
than her). Both her mother and grandmother were not at home. Her mother had gone
to another village to deliver documents. Her grandmother was working in the field. The
appellant arrived home from another village. Upon his arrival, the appellant sent Shaun
to fetch a newspaper for him from Mmakwena, Limpopo. In Shaun’s absence, the
appellant raped the complainant twice. There were secretions or discharge from her
vagina. Her vagina was ‘torn’, as she put it. She was treated by a medical doctor some
four-to-six days after the rape.

[7] The complainant gave a detailed description of the sexual assault. She stated
that once Shaun had left, the appellant called her to sit next to him on a sofa in the
lounge where he had found her and Shaun earlier on. Thereafter, the appellant went
to his bedroom when he called her to join him. Once inside his bedroom, the appellant
instructed her to undress. Initially the complainant said that she undressed herself, but
later on said that she refused to undress (a discrepancy which she was challenged on
during cross-examination). The appellant removed her skirt and panty. Thereafter, he
threw the complainant onto the bed and penetrated her the first time. He withdrew his
penis. At that stage, she saw secretions or a discharge coming out of her vagina. He
then penetrated her for the second time. Every time the appellant penetrated the
complainant, she experienced pain. She pushed the appellant off her and ran to her
grandmother’s bedroom, where she put her clothes back on. When she exited the
house, she met Shaun.

[8] It was common cause that the complainant did not report the rape to anyone
on the day in question, including Shaun, who she met shortly after the incident. Four-
to-six days later, her grandmother observed that the complainant was walking with
discomfort, and advised her mother to inspect her vagina. Upon this inspection, the
mother noticed that her vagina was ‘torn’ and she had some secretions or discharge,
which (it is common knowledge) was indicative of an infection of some sort. When her
mother asked her what had happened to her vagina, she told her that the appellant
had raped her. The mother cried.

[9] The complainant testified that the reason that she did not report the incident to
anyone on the same day of the rape, or immediately thereafter, was because the
appellant had threatened to beat her up if she did so. Pertinently, the complainant’s
version (on the rape) was not challenged or disputed. The only material question put
to her was that someone will be called to tell the court that she hurt herself or was hurt
(presumably on her vagina) when she was playing with other children.

[10] To support the complainant’s evidence, the State led the evidence of the
complainant’s mother. Corroborating the complainant, her mother testified that the
complainant reported to her that she was raped by the appellant when she was not at
home and on the day when she had gone to deliver documents at another village.

Further testifying that the complainant’s vagina was ‘torn’ and she found a discharge
in it. Nothing too significant transpired during cross-examination, save for the fact that
prior to this incident, she and the appellant got along like brother and sister. But since
this incident, they no longer got along. She (the complainant’s mother) agreed, adding
that it was because of what the appellant had done to her daughter that the relationship
soured.

[11] The appellant’s defence was one of an alibi. In his evidence-in-chief, he stated
that on 6 December 2010 he was at home, but denied that he raped the complainant.
Furthermore, the appellant said that the first time that he heard about the allegations
of rape against him was when he appeared in court. This is simply not true, as it was
common cause that when he was arrested on 15 December 2010, he was informed of
the charge against him. He stated that he was severely assaulted by the complainant’s
mother and the police when he was arrested for the rape of the complainant. The
police kicked him several times with booted feet, at the scene of the crime and at the
police station. In cross-examination, he denied that he raped the complainant. He
seemed to suggest that it was someone else, but did not say who or why he said so.
He maintained that the complainant falsely implicated him, because she was
influenced by her mother and grandmother. This, according to him, was motivated by
the bad blood between the parties.

[12] It is the appellant’s version that the acrimony between him and his sister was
because he did not want her boyfriend, who was unemployed, to live with them. He
supported his entire family. He proffered no explanation as to why his version – that
he had been assaulted by the police and his sister, and that there was bad blood
between him and his sister – was not put to them during cross-examination. He
conceded that he did not do so. And that he did not inform his legal representative
about this version. He had no explanation for his silence in the face of such damning
evidence against him, save to state that he did not know how court processes work
and was not aware that he could inform his legal representative during the trial. Yet, it
is on record that his legal representative approached him from time to time and there
were breaks in between the proceedings, during which he could have informed his
legal representative that he did not agree with the statements put to the witnesses or

informed the legal representative of what else to put to the witnesses, which the
witnesses had (according to him) omitted to mention in their evidence-in-chief.

[13] Contradicting himself, the appellant stated during cross-examination that: ‘I
have already explained that on 6 December 2010 when this thing happened I was
home’. He also called a witness, who testified that on 7 December 2010 the appellant
was at work. The two interacted until they knocked off duty.

[14] In this Court, counsel for the appellant submitted that this was a typographical
error for which the transcribers were to blame. Instead, the record should reflect the
following: ‘I have already stated that on 6 December 2010 when this thing happened I
was not home’. (Emphasis added.)

[15] The fallacy in this submission is that, when an appeal record is prepared, it is
the responsibility of the appellant and his legal representative(s) to go through it
thoroughly to ensure that the record is correct and to set out the grounds of appeal
relied upon. None of the grounds of appeal refer to this alleged ‘typo’ in the judgment.
Nonetheless, this argument was never raised during the hearing before the full bench.
In any event, the complainant’s evidence that on 6 December the appellant was at
home when he raped her was not challenged during cross-examination.

[16] The full bench accepted the findings of the trial court. The full bench, like the
trial court, admitted the warning statement that the appellant purportedly made to the
police, in which he admitted that he raped the complainant. At the outset of the appeal
hearing in this Court, counsel for the State, correctly, conceded that the statement was
illegally obtained – that the trial court as well as the full bench were wrong to admit the
statement as evidence. On the strength of this concession made on behalf of the State,
that should be the end of the inquiry.

Ad Conviction
[17] The evidence in this case was based on the evidence of a single witness, the
complainant. Apart from being a single witness to the act of rape, the complainant was
a girl child, aged 9 years at the time of the incident. For many years, the evidence of
a child witness, particularly as a single witness, was treated with caution. This was

because cases prior to the advent of the Constitution (which provides in s 9 for equality
of all before the law) stated inter alia that a child witness could be manipulated to
falsely implicate a particular person as the perpetrator (thereby substituting the
accused person for the real perpetrator). To ensure that the evidence of a child witness
can be relied upon as provided in s 208 of the CPA,3 this Court stated in Woji v Santam
Insurance Co Ltd,4 that a court must be satisfied that their evidence is trustworthy. It
noted factors which courts must take into account to come to the conclusion that the
evidence is trustworthy, without creating a closed list. In this regard, the court held:
‘Trustworthiness . . . depends on factors such as the child’s power of observation, his power
of recollection, and his power of narration on the specific matter to be testified. . . . His capacity
of observation will depend on whether he appears “intelligent enough to observe”. Whether
he has the capacity of recollection will depend again on whether he has sufficient years of
discretion “to remember what occurs” while the capacity of narration or communication raises
the question whether the child has the “capacity to understand the questions put, and to frame
and express intelligent answers.”’ (Emphasis added.)

[18] This Court has, since Woji, cautioned against what is now commonly known as
the double cautionary rule.5 It has stated that the double cautionary rule should not be
used to disadvantage a child witness on that basis alone. The evidence of a child
witness must be considered as a whole, taking into account all the evidence. This
means that, at the end of the case, the single child witness’s evidence, tested through
(in most cases, rigorous) cross-examination, should be ‘trustworthy’. This is dependent
on whether the child witness could narrate their story and communicate appropriately,
could answer questions posed and then frame and express intelligent answers.
Furthermore, the child witness’s evidence must not have changed dramatically, the
essence of their allegations should still stand. Once this is the case, a court is bound
to accept the evidence as satisfactory in all respects; having considered it against that
of an accused person. ‘Satisfactory in all respects’ should not mean the evidence line-
by-line. But, in the overall scheme of things, accepting the discrepancies that may

3 Section 208 of the CPA provides: ‘An accused may be convicted of any offence on the single evidence
of any competent witness’.
4 Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A) at 1028B-D. Note the caution courts are advised
to take note of when they consider the reliability of a child witness in rape cases: Woji by M Bekink
‘Defeating the anomaly of the cautionary rule and children’s testimony – S v Haupt 2018 (1) SACR 12
(GP).
5 See Vilakazi v S [2016] ZASCA 103; 2016 (2) SACR 365 (SCA) and cases cited therein.

have crept in, the evidence can be relied upon to decide upon the guilt of an accused
person. What this Court in S v Hadebe6 calls the necessity to step back a pace (after
a detailed and critical examination of each and every component in the body of
evidence), lest one may fail to see the wood for the trees.7 This position has been
crystallised by the Legislature in s 60 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, which provides that:
‘Notwithstanding any other law, a court may not treat the evidence of a complainant in criminal
proceedings involving the alleged commission of a sexual offence pending before that court,
with caution, on account of the nature of the offence.’

[19] As indicated, in his defence the appellant raised an alibi that he was at work
when the complainant was raped. However, this was not put to the witnesses. Nor was
it stated in his plea explanation, as the plea tendered on his behalf by his counsel was
that of a bare denial.

[20] It is trite that an accused person is entitled to raise any defence, including that
of an alibi – that at the time of the commission of the crime, they were not at the scene
of the crime but somewhere else. They can also lead evidence of a witness(es) to
corroborate them on their whereabouts at the critical time. Nevertheless, it is trite that
an accused person who raises the defence is under no duty (as opposed to that of the
State) to prove his defence. If the defence is reasonably possibly true, they are entitled
to be discharged and found not guilty.8

[21] The only responsibility an accused person bears with regards to their alibi
defence is to raise the defence at the earliest opportunity. The reason is simple: to
give the police and the prosecution the opportunity to investigate the defence and bring
it to the attention of the court. In appropriate cases, in practice, the prosecution can
even withdraw the charge should the alibi defence, after investigations, prove to be
solid.

6 S v Hadebe and Others 1998 (1) SACR 422 (SCA).
7 Ibid at 426F-H.
8 Tshiki v S [2020] ZASCA 92 (SCA) with cases cited therein.

[22] The alibi defence has received the attention of our courts, in particular that of
the Constitutional Court in Thebus v S,9 where it is stated:
‘. . . [A] failure to disclose an alibi timeously has consequences in the evaluation of the
evidence as a whole [and] is consistent with the views expressed by Tindall JA in R
v Mashelele. After stating that an adverse inference of guilt cannot be drawn from the failure
to disclose an alibi timeously, Tindall JA goes on to say:
“But where the presiding Judge merely tells the jury that, as the accused did not disclose his
explanation or the alibi at the preparatory examination, the prosecution has not had an
opportunity of testing its truth and that therefore it may fairly be said that the defence relied on
has not the same weight or the same persuasive force as it would have had if it had been
disclosed before and had not been met by evidence specially directed towards destroying the
particular defence, this does not constitute a misdirection.”’10 (Emphasis added.)

[23] Having said that, and taking into consideration the concession by the State,
undoubtedly, the admission of the warning statement by both courts was a material
misdirection which would (ordinarily) have vitiated these proceedings, as it was not in
the interests of justice or public interest for the warning statement to have been
admitted. This means that the evidence of the State should have been considered
without the warning statement.

[24] Without this evidence, the question that must be determined is whether the
evidence of a single witness (in this case, a 9-year-old girl child) was satisfactory in all
material respects. At the same time, whether or not the appellant’s version was
reasonably probably true.

[25] Applying the Woji principles to this case, I find that the evidence of the
complainant is trustworthy and, thus, (supported by aliunde evidence of the mother
and medical doctor) satisfactory beyond reasonable doubt. Despite her young age,
the complainant’s evidence was consistent and clear. She was able to respond to
statements put to her and questions posed by the defence with certainty and clarity;
intelligently and without difficulty. The cross-examination of the complainant was
rigorous and to some extent unnecessary. Where she did not understand the question,

9 Thebus and Another v S [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC).
10 Ibid para 63.

the question was repeated and she responded appropriately. During cross-
examination, the complainant broke down in tears but she composed herself and
remained adamant that the appellant was her rapist.

[26] The complainant was consistent to the extent that her evidence was supported
by independent medical evidence set out in the J88 form as well as the report she
made to her mother. The medical doctor who examined the complainant noted that
there was penetration of the hymen. The appellant on his own (although not admitting
that it was him) agreed that the complainant was raped and could not have fabricated
a story of having being raped. The version that was put to the complainant that she
hurt herself or was hurt (presumably) when she was playing with other children, was
abandoned in the light of the complainant’s clear evidence. She was observed by
elderly people that she was walking with discomfort. The mother noted her vagina
‘torn’ and the medical doctor confirmed it. The complainant had an infection as a result
of the act of penetration and she was given medication to treat the infection. The
complainant only reported the rape to her mother when her mother examined her and
asked her what had ‘torn’ her vagina. The complainant’s mother and grandmother did
not threaten her.

[27] As Milton states,11 reluctance on the part of rape survivors, or some of them, to
report the rape at the first opportunity is a firmly recognised fact. It is also generally
accepted that with young children the reluctance is compounded. The complainant
testified that the appellant threatened to beat her if she told anyone about the rape.
She was not challenged with another version or shown to be lying through cross-
examination. The explanation she gave was spontaneous and ‘has a ring of truth’ to
it.

[28] As I indicated, after rigorous cross-examination, the complainant’s evidence
remained unshaken except for the two discrepancies mentioned above. It is evident
that she did not report the rape on the same day, but it cannot be said that she was
motivated to do so later by her mother and grandmother. A first report statement refers

11 J R Milton South African Criminal Law and Procedure Vol II 3 ed at 461.

to the statement by a person to whom the victim of rape first reported the incident.12
Authors and experts in the field of psychology and criminology state that ‘[e]ach victim
reacts differently after a violent act. [They] may try to dismiss or ignore what happened
and even normalise it by having contact with the perpetrator in the future. [They] may
only decide to report once [they are] supported by a family member or when a friend
confirms that this behaviour is indeed wrong. If the perpetrator is considered as a
trustful person, victims may take years to link their situation to violence and recognise
it as such. Sexual violence victims often experience a profound sense of shame,
stigma and violation’.13 What is important is that the first report is made at the first
opportunity available to the victim of sexual violence. In most cases, when they feel
safe to do so, or they do not fear reprisals. Failure of the complainant to report an
alleged rape as soon as possible cannot be ‘the benchmark for determining whether
or not a woman has been raped’.14

[29] This Court, in Vilakazi v S,15 stated:
‘. . . [O]ur courts have not considered the lack of evidence of a voluntary complaint (also
referred to as a “first report”) to be fatal to a charge of rape. In this regard, Milton, in South
African Criminal Law and Procedure, says:
“It is not mandatory that there should be evidence that the woman has complained that she
has been raped. However, if she has, such [a] complaint is admitted in evidence to show
consistency and to negative a defence of consent, but not as proof of their contents nor to
corroborate the complainant. But it is not essential that consent should be in issue; the
complainant may, for instance, be a girl of under 12 years of age.
The purpose of admitting evidence of a complaint is that it serves to rebut any suspicion that
the woman has lied about being raped. The corollary is, of course, that should a woman not
complain, or not complain timeously, the conclusion may be drawn that she is lying in her
evidence that she was raped. The conclusion may well be unfair to the victim, since women
may hesitate to complain of rape for reasons of shame, embarrassment or fear.”’ (Emphasis
added.)

12 See D T Zeffertt & A P Paizes The South African law of evidence 2 ed (2009) at 971.
13 UNODC Handbook for the Judiciary on Effective Justice Responses to Gender-based Violence
against Women and Girls, at 25.
14 See Monageng v S [2008] ZASCA 129; [2009] 1 All SA 237 (SCA) para 24.
15 Vilakazi v S [2016] ZASCA 103; 2016 (2) SACR 365 (SCA) para 15.

[30] On its own, the complainant’s evidence was satisfactory in all material respects.
I am in agreement with the trial court that the discrepancies in her evidence on the two
aspects relied upon are not a material misdirection. Whether the appellant undressed
her or she undressed herself and whether, after the rape, she ran to her grandmother’s
bedroom or outside the house or her room are irrelevant and immaterial to whether
she was indeed raped, when and by whom.

[31] I, therefore, undoubtedly find that the trial court was correct to accept the
evidence of the complainant as satisfactory in all material respects. And, thus, the
appellant was properly convicted on the evidence of a single witness.

[32] Coming to the appellant’s version. It is trite that the proper approach to evidence
is to look at the evidence holistically to determine whether the guilt of the accused has
been proven beyond reasonable doubt.16 This approach was reaffirmed by this Court
in Tshiki v S17 as follows:
‘In a criminal trial, a court’s approach in assessing evidence is to weigh up all the elements
that point towards the guilt of the accused against all that which is indicative of their innocence
taking proper account of inherent strengths and weaknesses, probabilities and improbabilities
on both sides and having done so, to decide whether the balance weighs so heavily in favour
of the State as to exclude any reasonable doubt about the accused’s guilt.’18

[33] There are improbabilities in the appellant’s version in general and, in particular,
his alibi. The version put to the complainant was stated as follows: ‘if someone can tell
you that the reason for you not walking properly is that you injured yourself while
playing with other kids, what will you say?’. In reply, the complainant said: ‘I say that’s
not true’. It was further put to the complainant that she was falsely implicating the
appellant, because of some ill feeling between him and his sister (the complainant’s
mother) and her grandmother. The complainant denied that. Moreover, this motive
was not even put to her mother or the social worker, who compiled the victim impact
statement (VIS) in respect of the complainant, during cross-examination. There is no
evidence that there was any other person at their home, other than the appellant and

16 S v Van der Meyden 1999 (1) SACR 447 (W) at 448.
17 Tshiki v S [2020] ZASCA 92 (SCA).
18 Ibid para 23.

his son, Shaun, who was not present when the rape occurred. Crucially, the appellant
did not disclose the alibi timeously for the police and the prosecution to follow it up in
the three years before the trial commenced. Nor was this alibi taken up with any vigour
by the defence during cross-examination of the mother and the social worker. The
defence witness called could hardly corroborate him. Suffice to state that the appellant
was indeed at work on 7 December 2010, although, he could not remember if it was a
Monday or Tuesday.

[34] To bolster his alibi, the appellant took issue with the date on which the
complainant alleged he had raped her as reflected in the J88 form: 7 December
instead of 6 December as she alleged. It is correct that the medical doctor noted 7
December as reported to him. However, there is no evidence as to who provided the
doctor with that information: the complainant or the police or the mother or whoever
took her for medical examination. This ignores the fact that on the same J88 form the
police noted that the incident occurred on 6 December 2010.

[35] Furthermore, the plea tendered on behalf of the appellant was one of a bare
denial; not an alibi. It was pertinently put to the complainant that she hurt herself
(presumably on her vagina) when she was playing with other children. It was never
put to her or any of the witnesses that the incident that the complainant is alleged to
have hurt herself when she was playing, did not occur on 6 December but 7 December.
The only reasonable inference to draw is that the alibi is a made-up story. Additionally,
that the appellant built his defence as the case proceeded to dovetail the evidence of
the complainant in an attempt to take advantage of her young age and any confusion
which may emerge and lead to contradictions, if viewed in isolation.

[36] The improbability of this alibi further lies in the following. The appellant was
legally represented by an attorney from 30 December 2010. From 31 January 2013
until the end of the trial, he was represented by an advocate, on a brief by a firm of
attorneys. The charge sheet, annexure A Case No RN 102/2010 alleged that ‘on or
about 06.12.2010’. When the charge was put to the appellant, on 1 March 2013, the
State alleged that the rape took place on 6 December 2010. When the complainant
was called to testify, she was asked to tell the court what happened on 6 December
2010. From the commencement of the trial, there was no objection from the defence

on the date and day given by the complainant in her evidence-in-chief and on her
statement to the police. The only challenge raised with the complainant concerned the
discrepancy on the date mentioned in her statement and the J88 form. The
complainant responded by sticking to her version that it was on a Monday when the
incident happened, it was the day her mother had gone to another village to deliver
documents, which, according to the record, was 6 December 2010.

[37] The defence witness that was called to testify in this regard was not very
impressive. Besides stating that on 7 December the appellant was at work, there was
no substantiation. When he was cross-examined on the simple issue of what day it
was on which the appellant was at work, he could hardly remember whether it was a
Monday or a Tuesday. Having regard hereto, the trial court was correct to reject the
appellant’s version.

[38] This Court warned in Thebus19 that a court cannot attach much weight to an
alibi that is raised later; in this case, three years later. This is because such an alibi is
prone to fabrication, as evidenced in this case.

[39] As a result, the evidence, when viewed in its totality and excluding the warning
statement of the appellant, proves the appellant’s guilt beyond reasonable doubt and,
accordingly, the trial court rightly convicted the appellant as charged. Consequently,
the appeal against the conviction must fail.

Ad Sentence
[40] I now turn to the question of sentence. The trial court imposed the prescribed
minimum sentence of life imprisonment. It is common cause that the provisions of s 51
of the Criminal Law Amendment Act 105 of 1997 (Act 105 of 1997) are applicable.
Section 51 of Act 105 of 1997 provides:
‘51.
Discretionary minimum sentences for certain serious offences –
(1)
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.

19 Thebus and Another v S [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) para
65.

. . .
(3)
(a) If any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser sentence than the
sentence prescribed in those subsections, it shall enter those circumstances on the record of
the proceedings and must thereupon impose such lesser sentence. . .’

[41] Part I of Schedule 2 of Act 105 of 1997 provides for offences including inter alia:
‘Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007 –
(a)
. . .
(b)
where the victim –
(i) is a person under the age of 18 years;
. . .
(iv) is or was in a domestic relationship, as defined in section 1 of the Domestic
Violence Act, 1998, with the accused.’20

[42] This case, accordingly, falls squarely within s 51(1) read with Part I of Schedule
2 of Act 105 of 1997, as the trial court correctly found.

[43] It is trite that sentencing or punishment is pre-eminently a matter of discretion
of the trial court. A court exercising appellate jurisdiction cannot, in the absence of a
material misdirection by the trial court, approach the question of sentence as if it were
the trial court and then substitute the sentence arrived at by it simply because it prefers
it. To do so would be to usurp the sentencing discretion of the trial court.

[44] Where, however, a material misdirection by the trial court vitiates its exercise
of that discretion, an appellate court is of course entitled to consider the question of
sentence afresh. In doing so, it assesses sentence as if it were a court of first instance
and the sentence imposed by the trial court has no relevance.

[45] Nevertheless, even in the absence of a material misdirection, an appellate court
may yet be justified in interfering with the sentence imposed by the trial court. It may

20 In terms of the Domestic Violence Act 116 of 1998, ‘domestic relationship’ means ‘a relationship
between a complainant and a respondent in any of the following ways: . . . (d) they are family members
related by consanguinity, affinity or adoption; . . . (f) they share or recently shared the same residence’.

do so when the disparity between the sentence of the trial court and the sentence
which the appellate court would have imposed had it been the trial court is so marked
that it can properly be described as 'shocking', 'startling' or 'disturbingly
inappropriate’.21

[46] The sentence imposed by the regional court is one that is prescribed by the
legislature – that of life imprisonment – as it found that the appellant raped the
complainant more than once and the complainant was under the age of 18 years.
When setting out minimum sentencing for certain offences, ‘the Legislature aimed at
ensuring a severe, standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be seen to be, truly
convincing reasons for a different response’.22 (Emphasis added.)

[47] Counsel for the appellant submitted that the trial court did not take into account
the appellant’s personal circumstances. It also, according to counsel, did not take into
account that this was not one of the ‘brutal cases’, as the complainant was not
physically injured. Counsel was taken to task during the exchange with the members
of the bench on this submission, but he could not take the argument further. Correctly
so, because apart from this minimising the traumatic effects of rape on any victim and
more so a child, it is well documented that ‘irrespective of the presence of physical
injuries or lack thereof, rape always causes its victims severe harm’.23

[48] The Legislature has specifically amended the Criminal Law Amendment Act to
provide categorically that the fact that a complainant was not injured during a rape
cannot be considered as compelling or substantial. In terms of s 51(3)(aA) of Act 105
of 1997, which came into operation in December 2007:
‘When imposing a sentence in respect of the offence of rape the following shall not constitute
substantial and compelling circumstances justifying the imposition of a lesser sentence:
….
(ii)
an apparent lack of physical injury to the complainant;
….

21 S v Malgas 2001 (1) SACR 469 (SCA) para 12.
22 Ibid para 8.
23 Amanda Spies ‘Perpetuating Harm: Sentencing of Rape Offenders Under South African Law’ (2016)
(2) SALJ 389 at 399.

(iv)
any relationship between the accused person and the complainant prior to the offence
being committed.’

[49] In its judgment on sentence, the trial court took into account two reports: a victim
impact statement (the VIS) in respect of the complainant to reflect her voice in
proceedings that affect her directly; and a pre-sentence report in respect of the
appellant. The State led the evidence of the social worker who compiled the VIS after
interviewing the complainant, the appellant and their family members.24 She stated
that the appellant did not use a condom during the rape. As a result, the complainant
suffered an infection which was not medically treated until she was examined some
days later. That is why she walked with discomfort.

[50] Furthermore, the social worker stated that the rape had impacted negatively on
the complainant to the extent that her school performance dropped. She was afraid of
the appellant and feared to be left alone with him. She was withdrawn. As a result of
counselling, the complainant was able to talk to the appellant and even asked him to
buy her sweets. Both the complainant and her mother were deeply hurt, emotionally
scarred, confused and felt a sense of hopelessness as a result of the rape. She finds
it difficult to trust people. They were relieved only when the appellant was arrested and
held in custody. Family members were taken through counselling to deal with this
incident. It is not clear if this therapy is still ongoing.

[51] It must be noted that even without a psychological assessment, from reported
cases of rape based on literature and evidence of experts in court, rape has a
devastating impact on anyone, let alone a child. Although the complainant seemed to
be coping better at school, individuals are impacted differently. The experts have noted
certain features common in all rape cases: post-traumatic stress disorder (PTSD),
including flashbacks, nightmares, severe anxiety, and uncontrollable thoughts.
Depression, including prolonged sadness, feelings of hopelessness, unexplained
crying, weight loss or gain, loss of energy or interest in activities previously enjoyed.

24 The prosecutor did well to request and obtain a Victim Impact Statement. A victim has its own interests
which must be reflected to give them a voice in their own proceedings.

Suicidal thoughts or attempts. Dissociation, including not being able to focus on work
or on schoolwork, as well as not feeling present in everyday situations.25

[52] The trial court had regard to the basic triad of sentencing and also warned itself
to balance the various interests.26 It took into account the appellant’s personal
circumstances. He was a first offender. He was gainfully employed. He had three
children of his own. The children lived with their respective mothers, except for one,
whose mother had passed on, but was staying with relatives and not with the appellant.
It clearly took into account the best interests of the appellant’s children with reference
to sentencing an accused person who has minor children,27 taking into account that
the children have relatives and that the Department of Social Development can be
approached to provide for the children under social grants and such facilities available
to children in need of care.

[53] The trial court noted the following as aggravating circumstances: the appellant
was the complainant’s maternal uncle and in a position of trust – who is ‘supposed to
protect and love’ the complainant and not abuse her. The trial court did not note
specifically that the appellant took advantage of the presumably long absence of the
mother and grandmother (as alluded to earlier on)28 to abuse the complainant. A factor
ordinarily present in rapes committed within families or by those close to the families
to commit these violent crimes, knowing well that the victims are left on their own at
particular times of the day or on certain days.

[54] The regional court took into account the seriousness of the offence and the
prevalence of rape in the Napuno Magistrate’s Court District (four cases on the court
roll on 23 August 2013, when sentence was imposed).

25 See footnote 1 above.
26 The basic triad: the seriousness of the offence, the offender’s personal circumstances and the
interests of society, and, lately, a fourth element distinct from the three: the interests of the victim of the
offence.
27 As guided by the Constitutional Court in S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12)
BCLR 1312 (CC) paras 28-36.
28 Paragraphs 2 and 10 above: The mother had gone to another village to deliver documents. The
grandmother was working in the field.

[55] All these factors, in the view of the regional court, were not compelling and
substantial enough to justify a lesser sentence.

[56] Having considered the reasons for sentence, taking into account the now well
documented and known psychological impact of victims of rape, especially children,
the regional magistrate did not commit any misdirection in imposing the prescribed
sentence. Counsel could not point to any. Had the trial court found otherwise, it would
have been to deviate for no sound reasons.29

[57] Rape of women and children is rampant in South Africa. It has reached alarming
proportions despite the heavy sentences which courts impose. South Africa has one
of the highest rape statistics in the world, even higher than some countries at war. The
country’s annual police crime statistics confirms this: in 2019/2020, there were 42 289
rapes reported as well as 7 749 sexual assaults. This translates into about 115 rapes
per day.30

[58] The appellant infringed the right to dignity and the right to bodily and
psychological integrity of the complainant, which any democratic society (such as
South Africa) which espouses these rights, including gender equality, should not
countenance for the future of its children, their safety and physical and mental health.
In S v Jansen,31 the court stated it thus:
‘Rape of a child is an appalling and perverse abuse of male power. It strikes a blow at the very
core of our claim to be a civilised society. . . . The community is entitled to demand that those
who perform such perverse acts of terror be adequately punished and that the punishment
reflect the societal censure. It is utterly terrifying that we live in a society where children cannot
play in the streets in any safety; where children are unable to grow up in the kind of climate
which they should be able to demand in any decent society, namely in freedom and without
fear. In short, our children must be able to develop their lives in an atmosphere which behoves
any society which aspires to be an open and democratic one based on freedom, dignity and
equality, the very touchstones of our Constitution.’

29 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA).
30 Amada Gouws ‘Rape is endemic in South Africa. Why the ANC government keeps missing the mark’
9 August 2022, Mail & Gaurdian, https://mg.co.za/opinion/2022-08-09-rape-is-endemic-in-south-africa-
why-the-anc-government-keeps-missing-the-mark/.
31 S v Jansen 1999 (2) SACR 368 (C) at 378G-379B.

[59] Taking into account Jansen, Malgas, Matyityi, Vilakazi and a plethora of
judgments which follow thereafter as well as regional and international protocols which
bind South Africa to respond effectively to gender-based violence, courts should not
shy away from imposing the ultimate sentence in appropriate circumstances, such as
in this case. With the onslaught of rape on children, destroying their lives forever, it
cannot be ‘business as usual’. Courts should, through consistent sentencing of
offenders who commit gender-based violence against women and children, not retreat
when duty calls to impose appropriate sentences, including prescribed minimum
sentences. Reasons such as lack of physical injury, the inability of the perpetrator to
control his sexual urges, the complainant (a child) was spared some of the horrors
associated with oral rape, which amount to the acceptance of the real rape myth, the
accused was drunk and fell asleep after the rape, the complainant accepted gifts (in
this case, sweets) are an affront to what the victims of gender-based violence, in
particular rape, endure short and long term. And perpetuate the abuse of women and
children by courts. When the Legislature has dealt some of the misogynistic myths a
blow, courts should not be seen to resuscitate them by deviating from the prescribed
sentences based on personal preferences of what is substantial and compelling and
what is not. This will curb, if not ultimately eradicate, gender-based violence against
women and children and promote what Thomas Stoddard calls ‘culture shifting
change’.32

[60] The message must be clear and consistent that this onslaught will not be
countenanced in any democratic society which prides itself with values of respect for
the dignity and life of others, especially the most vulnerable in society: children. For
these reasons, this Court is not at liberty to replace the sentence that the trial court
imposed. For an uncle, who is the position of trust just as a father, to rape his own
niece is unconscionable and deserves no other censure than that imposed by the trial
court: life imprisonment. The sentence is not disproportionate to the serious offence
that the appellant committed on a 9-year-old child, his niece. The sentence is, thus,
justified in the circumstances.

32 Thomas B Stoddard ‘Bleeding heart: Reflections on using the law to make social change’ (1997) 72
New York University LR 967 at 971.

[61] It would be remiss of me if I do not raise a concern that I had in this appeal,
although not pertinent to the disposal of the appeal. The clear discrepancy between
the J88 form and the statements of the witnesses as well as their evidence-in-chief
was just swept under the carpet. Linked to that, on one hand, the responsibility of the
prosecutor(s) to address the defect, and, on the other hand, the responsibility of the
court(s) to address the same when assessing evidence. Where there is a clear
discrepancy between the dates mentioned in the charge sheet or indictment, the J88
form (as in this case) and the evidence relied upon by the State, the prosecutor(s)
must address the defect at the relevant stages of the trial. Sections 86, 88 and 270 of
the CPA make provision for this anomaly. This gives the defence the opportunity to
address the anomaly adequately. And the trial court to include it in its assessment of
the evidence to come to the conclusion of whether the accused person is guilty or not.
The test is always the prejudice that the accused may suffer in his defence.

[62] In the result, the following order is granted:
The appeal against the conviction and sentence is dismissed.

____________________

B C MOCUMIE
JUDGE OF APPEAL

Appearances

For the appellant:

L M Manzini
Instructed by:

Legal Aid South Africa, Polokwane

Legal Aid South Africa, Bloemfontein

For the respondent:
A R Sithada
Instructed by:

Director of Public Prosecutions, Polokwane

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
23 January 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Maila v The State (429/2022) [2023] ZASCA 3 (23 January 2023)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal from the Limpopo Division
of the High Court, Polokwane, sitting as a full bench (the high court), which had dismissed an
appeal against the conviction and sentence of the appellant, Mr Simon Maila. The appellant
was convicted of the rape of his 9-year-old niece and sentenced to life imprisonment by the
Regional Court in the Regional Division of Limpopo, Lenyenye (the regional court).

The facts of the case were briefly as follows. On 6 December 2010, the complainant, a 9-year-
old girl, was raped in her home, which she shared, inter alia, with her uncle (the appellant), her
mother and her grandmother. The rape occurred during the day when both her mother and
grandmother were not at home. In their absence, the appellant raped the complainant twice.

The issues for determination by the SCA were whether the appellant was properly convicted
on the evidence of a single witness; and whether the trial court correctly admitted the warning
statement – which was illegally obtained – and in which he incriminated himself.

The SCA found that, taking into consideration the concession by the State, undoubtedly, the
admission of the warning statement by both the regional and high courts was a material
misdirection. This meant that the evidence of the State should have been considered without
the warning statement.

On the conviction, the SCA found that the regional court was correct to accept the evidence of
the complainant as satisfactory in all material respects. And that the discrepancies in the
complainant’s evidence on the two aspects relied upon were irrelevant and immaterial to
whether she was indeed raped, when and by whom. Thus, the appellant was properly convicted
on the evidence of a single witness.

With regard to the appellant’s version, the SCA found that there were improbabilities in the
appellant’s version in general and, in particular, his alibi. As a result, the evidence, when
viewed in its totality and excluding the warning statement of the appellant, proved the
appellant’s guilt beyond reasonable doubt. Consequently, the appeal against the conviction had
to fail.

On the sentence, the SCA found that the regional magistrate did not commit any misdirection
in imposing the prescribed sentence of life imprisonment. The regional court had regard to the
basic triad of sentencing; it noted the following as aggravating circumstances: the appellant
was the complainant’s maternal uncle and in a position of trust – who is ‘supposed to protect
and love’ the complainant and not abuse her; and it took into account the seriousness of the
offence and the prevalence of rape in the region. The SCA agreed that there were no compelling
and substantial circumstances to justify a lesser sentence.

Notably, the SCA remarked on the deplorable rape statistics in South Africa. And, accordingly,
communicated that courts should, through consistent sentencing of offenders who commit
gender-based violence against women and children, not retreat when duty calls to impose
appropriate sentences, including prescribed minimum sentences, in appropriate circumstances,
such as in this case.

In the result, the SCA dismissed the appeal against both the conviction and sentence.

~~~~ends~~~~