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ORDER
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On appeal from: North West Division of the High Court, Mahikeng (Djaje AJ and
Hendricks J, sitting as a court of appeal):

The following order is made:
The appeal is upheld and the order of the court below is set aside and substituted
with the following:
‘The appeal is upheld and the conviction and related sentences are set aside.’

JUDGMENT

Dambuza JA (Shongwe JA concurring):

[1]

The sexagenarian appellant was convicted by the Taung Regional Court of

the North West Province on a charge of raping a 12 year old child. He was
sentenced to 15 years’ imprisonment. The magistrate immediately granted him leave
to appeal against both the conviction and sentence and he was released on bail
pending the appeal. On 6 November 2014 the Northwest Division of the High Court,
Mahikeng (Djaje AJ and Hendricks J) dismissed his appeal against conviction and
altered the sentence by suspending five years of the 15 year sentence. This appeal
is against the conviction, special leave having been granted by this court.

[2]

The charge sheet stated that the rape occurred during the period 1 to 28

February 2006. Broadly, the allegations on which the charge was based were that
whilst transporting the complainant to school in his vehicle the appellant had nonconsensual sexual intercourse with her in the vehicle.

[3]

It was common cause before the regional magistrate that in 2006 the

complainant and her parents lived in Mokgareng Village, Taung in a house owned by
the appellant’s in-laws. The complainant attended school at Ntokwe Primary School,

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