- S V Masuku 2019 (1) SACR 276 (GJ)
Mr Masuku, the accused, appeared before the regional court in Johannesburg (“the trial court”) on two charges of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, read with section 51(1) and, further read with Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (which provides for minimum sentences).
The accused, who was legally represented, pleaded not guilty to both charges. On 28 August 2015, the accused was convicted on one count of rape in respect of girl complainant “BK”, and acquitted on the other count in respect of girl complainant “SK”. BK was seven years old at the time of the rape, while SK was eight years old at the time of the incident involving her.
On 10 December 2015, the accused, who was 19 years old at the time of the incidents, was sentenced to 15 years' incarceration.
On appeal against his conviction and sentence before a full bench of three judges of the High Court in Johannesburg (“the court of appeal”), there were two aspects in terms of the way that the trial court dealt with this matter that required comment by the court of appeal.
The first matter of concern
According to the court of appeal, the trial court allowed for the naming of BK, SK and their respective mothers.
In this regard the court of appeal in para  of its judgment, held that “in criminal proceedings dealing with a sexual offence against a child the court is obliged to protect the child complainant in every possible way without, of course, undermining the rights of an accused person to a fair trial. This protection must surely mean that the identity of the child should be protected, for that would serve the best interests of the child. Identifying the child compromises the future of the child and places him or her at risk of being ridiculed or pitted which diminishes the dignity of the child as well as that of his or her parents. The harm suffered by the child is unnecessary and avoidable by simply protecting the identity of the child. Thus, to avoid this unnecessary harm from ensuing it is incumbent on courts to never reveal the identity of the child”.