H.N v S (A211/2024) [2025] ZAGPPHC 1378 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1378 | Noteup | LawCite sino index ## H.N v S (A211/2024) [2025] ZAGPPHC 1378 (12 December 2025) H.N v S (A211/2024) [2025] ZAGPPHC 1378 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1378.html sino date 12 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA CASE NO: A211/2024 (1)    REPORTABLE: YES / NO (2)    OF INTEREST TO OTHER JUDGES: YES/NO (3)    REVISED. SIGNATURE DATE: 12/12/2025 In the matter between: H[...] N[...]                                                                                                         Appellant and THE STATE                                                                                                 Respondent This Judgment was handed down electronically and by circulation to the parties’ legal representatives by way of email and shall be uploaded on caselines. The date for hand down is deemed to be on 12 December 2025. JUDGMENT MKHABELA J (LESO AJ CONCURRING) Introduction [1] This is an appeal against the conviction and sentence imposed on the appellant for the repeated rape of a 9-year-old girl. The offences were committed in 2018 and 2019 in the complainant’s home, where she lived with her mother and the appellant. [2] The appellant was convicted by the Pretoria Regional Court on 5 April 2022, and sentenced to life imprisonment on 6 July 2022, being the prescribed minimum sentence for the rape of a person under the age of 16-years. [3] The appeal lies before this court by virtue of the appellant’s right to an automatic appeal in terms of section 309(1)(c) of the Criminal Procedure Act 51 of 1977 (the CPA). [4] The trial court found that the appellant had indeed raped the complainant. However, counsel for the appellant contended, firstly, that the state did not prove its case beyond reasonable doubt as the trial court had failed to apply the necessary cautionary rule to the evidence of the complainant, who was both a single and child witness. [5] Secondly, it was contended that the trial court erred in failing to consider the evidence in its totality, in that, there was evidence that the appellant was HIV positive, yet the complainant tested negative. This was despite the evidence that she was raped over period of two years. The gist of this contention is that if the appellant, who was HIV positive, had raped the complainant repeatedly over two years, she would likely have contracted the virus. [6] Since the appeal is both against conviction and sentence, it was submitted on behalf of the appellant that the court erred in its failure to regard the cumulative personal circumstances as constituting substantial and compelling circumstances warranting a deviation from imposing the prescribed life sentence. [7] It follows, therefore, that the issue on conviction is whether the appellant was properly convicted on the evidence of the complainant as both a single and child witness in respect of the rape. [8] In respect of the appeal against the sentence, the crisp issue is whether the trial court committed a material misdirection which vitiated its sentencing discretion. Even in the absence of misdirection, the second leg of the issue is whether the imposed sentence is disturbingly inappropriate. Background facts [9] In 2018, the appellant called the complainant to her mother’s bedroom. Upon her arrival, the appellant showed the complainant a game of snake on his phone. He then asked the complainant to comment on which snake was bigger between his penis and the snake on the phone. The complainant did not respond. He then undressed the complainant and inserted his penis into her vagina. [10] After he had raped her, the appellant instructed the complainant to go to her bed and she obliged. This ordeal happened in the evening when the complainant’s mother was on nightshift duty, and the appellant was alone with the complainant. [11] In the morning, the appellant prepared water for the complainant to bath. He then told the complainant not to disclose the rape to anyone since by doing so the appellant would kill her and her mother. [12] When the complainant was asked by the prosecutor whether the appellant raped her once on that night in 2018, she told the court that he had raped her three times on that fateful night. [13] As if the first three counts of rape were not enough, the appellant raped her again and this was now in 2019. On this occasion, the complainant was watching TV and eventually fell asleep. She woke up when the appellant was removing her underwear after having lifted her dress. [14] After removing the complainant’s underwear, the appellant climbed on top of her and raped her. She tried to scream but the appellant covered her mouth by covering it with a pillow. [15] In the morning, unlike the first rape, the appellant did not prepare water for her to bath. The complainant’s mother was also not at home and had been working night shift. The complainant was again alone with the appellant. [16] The third rape incident also happened in 2019 approximately two days after the second one. This time, the complainant was wearing shorts, she had forgotten to switch off the television and went to the lounge to switch it off. She then proceeded to the bed and went to sleep. [17] The appellant came to her bedroom, lifted her up and put her on a couch. He then undressed her by removing her t-shirt, shorts and underwear. The appellant was already naked; he then made the complainant to lie down facing up. He climbed on top of her and inserted his penis into her vagina and made shaking movements. [18] After raping her, he told her to sleep on the couch. Early in the morning, he told her that her vagina was nice and that her mother’s vagina was not. The appellant left in the morning. The complainant took a bath and went to school. The arrest of the appellant [19] A prophet at church told the complainant’s mother that someone, a man who was thirty-three years old, came to the complainant’s bedroom. It is during this time that the mother enquired from the complainant as to what had happened between herself and the appellant. [20] Initially, the complainant was not forthcoming but eventually she told her mother about the rapes that the appellant had committed. The mother called her child, and the appellant was approached but denied having raped the complainant. [21] The mother took the complainant to a health facility for examination. The appellant was present when the mother took her daughter to the health facility. The appellant was arrested after the police were called to the hospital following the occurrence of the rapes were medically confirmed. [22] Dr Nkomo, who examined the complainant in January 2020, testified that he noticed evidence of sexual penetration. His conclusion was fortified by the fact that the labia minora in the complainant’s vagina was inflamed. Similarly, the complainant’s hymen was jagged, something not to be found in a 9-year-old girl. [23] Moreover, Dr Nkomo testified further that he also noticed a whitish discharge from the complainant’s vagina which according to him was indicative of a sexually transmitted disease or infection. [24] The complaint’s mother also testified and confirmed the complainant’s evidence in most material respects. She corroborated the complainant’s evidence to the effect that when she worked night shifts, the complainant would be left alone with the appellant. In addition, she testified that the appellant lived with them in her shack. [25] She testified further that the complainant had told her that the appellant had threatened to kill both her and her daughter in the event of the disclosure of the rapes. This, she explained, was the reason the complainant did not tell her about her ordeal. [26] The mother also corroborated her daughter’s evidence to the effect that in the first rape, the appellant showed her a game of snakes on his phone and then asked the complainant to compare which snake was bigger between the appellant’s penis and the snake in the game. [27] There were minor contradictions between the mother’s evidence and that of the complainant. For instance, the mother testified that her daughter had told her that the rapes could have occurred on as many as 5 occasions. The evidence of the complainant was that the rapes amounted to 3 days, once in 2018 and albeit she was raped three times in 2018, then two days in 2019. [28] The mother also confirmed the complainant’s evidence that the appellant was present when her daughter was taken to the hospital for medical examination. [29] Significantly, the mother testified that she used to leave her daughter with female caregivers when she worked night shifts. However, the appellant later offered to look after her daughter during those night shifts. [30] The appellant suggested that this arrangement would save money, as the complainant would no longer need to be left at other people’s houses, and the savings could be used to buy mealie meal. The mother agreed after the appellant promised that he would not touch the complainant. [31] The mother testified further that the appellant was self-employed and would leave at approximately 04h00 in the morning to assist people in the market. The complainant confirmed this, stating that after the second rape in 2019, the appellant left around 04h00am in the morning. The appellant’s case [32] The appellant testified in his defence and offered a bare denial. He denied that he lived with the complainant and her mother. [33] Even in his examination-in-chief, the appellant did not answer crucial questions which were pivotal to his defence. His failure to answer pertinent questions invited the magistrate’s intervention as can be seen from the following extract of the record. The appellant’s evasiveness is illustrated when, asked about the January 22029 incident, he responded not to the allegation but by stating that, “ The complainant’s mother has never left me a key ,” forcing the magistrate to direct him to answer the question. [34] There was a litany of denials of the mother’s evidence that only became evident in the cross-examination of the appellant. When asked as to why his denial of the mother’s evidence was not put to the mother when she was in the witness box, the appellant blamed his legal representative for failing to consult with him properly. [35] However, when the prosecutor pointed out that he had been giving instructions to his legal representative each time a state witness had been testifying, he ultimately admitted that he had “ample” time to give his legal representative instructions to challenge the mother’s evidence. [36] The appellant proffered no explanation as to why his version that the mother and her daughter were falsely implicating him for the rapes was not put to the mother during cross-examination. [37] It is trite and salutary principle that the evidence of a single witness, particularly, a child witness, must be treated with the necessary caution. [38] Guiding this assessment, the Appellate Division in Woji v Santam Insurance Co Ltd , [1] outlined the key factors that courts need to consider when determining the trustworthiness of a child’s testimony. It was held as follows: “ 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.” [39] Subsequent jurisprudence has refined this approach . The Supreme Court of Appeal in Vilakazi v S, [2] cautioned against applying an overly rigid “double cautionary rule”. The court stated that the “double cautionary rule” should not be used to unfairly disadvantage a child witness solely on the basis of age. It further stated that the evidence of a child witness must be considered as a whole taking into account all the relevant evidence [40] In Maila v S, [3] the Supreme Court of Appeal added a gloss to these salutary principles and held that “a child witness’s evidence tested through rigorous cross examination should be trustworthy. This depends on whether the child witness could narrate their story and communicate appropriately, could answer questions posed and 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 aspects; having considered it against that of an accused person.” [41] This legal framework is further informed by section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 , which provides as follows: “ 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.” [42] Applying these principles to the present matter, the complainant’s evidence demonstrated remarkable consistency. Throughout both her examination-in-chief and her cross-examination, she remained as constant as the northern star as to when, where and how many times she was raped by the appellant. [43] The only contradiction was minor and immaterial, arising from her mother’s testimony that the complainant told her that the number of rapes could even be 5 in total, whereas the complainant’s evidence was that her rape ordeal amounted to 3 days. Such a minor discrepancy does not taint the otherwise unassailable evidence against the appellant, especially when contrasted with his bare denial. [44] In my view, the evidence of the complainant was more than trustworthy and fully in harmony with the principles encapsulated in Woji . Her account of rape was corroborated by the undisputed medical evidence confirming sexual penetration in the complainant’s vagina. [45] Furthermore, the appellant conceded that both the complainant and her mother had no opportunity or time to plan and falsely implicate the appellant to the rapes, as the fully story emerged spontaneously at the hospital. [46] The occurrence of the rapes was further supported by the presence of a whitish vaginal discharge, which Nkomo testified was consistent with a sexually transmitted disease. [47] The fact that the rapes were reported almost two years after their occurrence is of no consequence, given the appellant’s explicit threats to kill the complainant and her mother if she were to disclose the rapes. [48] It is trite law that a failure of a complainant to report a rape as soon as possible cannot be “the benchmark for determining whether a woman has been raped.” [4] [49] For these reasons, that I am of the view that the trial court correctly convicted the appellant and was fully justified in rejecting the appellant’s version as not being reasonably possibly true. Sentence [50] I now turn to the question of sentence. The appellant does not dispute that given the age of the complainant, the prescribed life imprisonment is applicable. What the appellant takes issue with is that the trial court erred in not viewing the personal circumstances of the appellant as amounting to substantial and compelling circumstances to warrant a deviation from the life imprisonment. [51] It is trite that punishment is pre-eminently a matter for the discretion of the trial court. Our case law is replete with the relevant authorities in this regard. [52] What is also equally trite is that an appellate court’s leeway to interfere with the sentence imposed by the trial court is severely circumscribed. [5] It can only interfere in the presence of a material misdirection or instances where the sentence in question is disturbingly inappropriate, and where the sentence is disproportionate to the offence. [6] [53] In respect of the sentence, the trial court considered the personal circumstances of the appellant. He was a first offender, gainfully self-employed earning R300 per day. He was unmarried with one minor child. [54] He had spent two years and six months awaiting trial. The trial court also noted that the aggravating circumstances such as the seriousness of the offence, and that the rape of children had become epidemic. The trial also considered that rape is a heinous crime that almost destroys the victim’s self-esteem for the rest of her life. [55] In addition, the court considered that the appellant was a father figure and a stepfather to the complainant. Furthermore, that the appellant not only raped the complainant but also threatened to kill her and her mother should she reveal the rapes. The most devastating aggravating factor in my view was the fact that the complainant was raped repeatedly at the tender age of between 8 and 9 years old. [56] I have carefully considered the reasons as to why the trial court found that there were no substantial and compelling circumstances to deviate from imposing the prescribed life imprisonment. I am unable to fault i ts reasons. It follows that the trial court did not commit any misdirection in its refusal to deviate from the prescribed minimum life imprisonment. [57] The statutorily ordained life imprisonment is not disproportionate to the offence of a repeated rape of an 8-year-old and 9-year-old child who was raped three times in 2018 in one night and two nights in 2019. [58] In light of the above, I am of the view that the appeal in respect of the sentence must also be dismissed. Order [59] I therefore make the following order: 1. The appeal against both conviction and sentence is dismissed. R. MKHABELA JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA I AGREE, LESO (MS) ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA APPEARANCES: For the Appellant     : Ms MMP. Masete Instructed by           : Legal Aid South Africa pearlma@legal-aid.co.za For the Respondent: Adv. K Rancho Instructed by           : Office of the Director of Public Prosecutions. Date of hearing       : 26 November 2025 Date of delivery of the judgment: 12 December 2025 [1] 1981 (1) SA 1020 (A) at 1028 B – D, see also S v Haupt 2018 (1) SACR 12 (GP). [2] 2016 (2) SACR 365 (SCA), see also other cases cited therein. [3] 429/2022 [2023] ZASCA 3 , at para 18. [4] Monageng v S 2008 ZASCA 129, [2009] 1 All SA 237 (SCA), at para 24. [5] S v Rabbie 1975 SA 855 (A), at 857 D – F. [6] S v Bogaards [2012] ZACC 23 , 2013 (1) SACR (1) (CC) 2012 (12) BCLR 1261 (CC), at para 41. sino noindex make_database footer start