Terblanche v S

The appellant was in a romantic relationship with the complainant's mother. The complainant and her mother moved in with the appellant in 2015 when the complainant was 14 years old. From 2016, the appellant began touching the complainant inappropriately, which escalated from masturbating in her presence, touching her breasts, licking her vagina, forcing her to perform oral sex, to vaginal penetration with his penis and fingers. The abuse occurred over an extended period, often when the complainant's mother was asleep or absent due to illness (depression and cancer). The complainant did not immediately disclose the abuse due to fear of conflict between her mother and the appellant and fear of losing their home. The abuse came to light after the complainant wrote an anonymous poem describing the abuse, which was discovered by her mother. The complainant also disclosed the touching to a school friend, Mr G[…], before reporting to authorities. A medical examination revealed an elastic hymen with no signs of injury, though the doctor noted this did not exclude penetration.

• Whether the State proved the appellant's guilt beyond reasonable doubt on charges of sexual assault and rape
• Whether the trial court properly evaluated the evidence of a single witness (the complainant) with the required caution
• Whether the trial court correctly handled inconsistencies between the complainant's viva voce evidence and her police statements
• Whether the trial court erred in imposing a life sentence after finding substantial and compelling circumstances warranting deviation from the prescribed minimum sentence
• Whether the trial court properly considered the appellant's personal circumstances in sentencing

1. The appeal on conviction is dismissed. 2. The sentence imposed by the trial court on counts 1, 2, 3, 4 and 5 (sexual assault) is confirmed. 3. The sentence on counts 6, 7, and 8 (rape) is set aside and replaced with 18 years' imprisonment per count. 4. The sentences on counts 1, 2, 3, 4, 5, 7 and 8 are to run concurrently with the sentence on count 6, resulting in an effective 18 years' imprisonment. 5. The sentence is antedated to 30 March 2022.

Once a trial court finds substantial and compelling circumstances as envisaged in section 51(3) of the Criminal Law Amendment Act 105 of 1997, it cannot impose the prescribed minimum sentence under section 51(1) of the Act; it must exercise its discretion to impose a lesser sentence. A bare denial by an accused may be rejected as implausible where the complainant's evidence is credible, corroborated, and consistent with the probabilities. The evaluation of a single witness's evidence must be done holistically, weighing all evidence together, and not every contradiction or deviation affects credibility.

The court observed that the purpose of a police statement is to obtain details of an offence so that a decision can be made on whether to institute a prosecution, and it is not intended to be a precursor to that witness's evidence in court. The court also noted that while there is no absolute bar against imposing globular sentences, they should generally be used in exceptional circumstances and can be used to ameliorate the effect of sentences that may appear shockingly inappropriate.

This case clarifies the sentencing principles under the Criminal Law Amendment Act 105 of 1997, specifically that once substantial and compelling circumstances are found, a court cannot impose the prescribed minimum sentence. It reinforces the approach to evaluating single witness testimony in sexual offence cases, particularly where the complainant is a child, and confirms that the absence of physical injuries does not exclude rape. The case also illustrates the proper handling of inconsistencies between police statements and viva voce evidence.