- High Court confirms convictions for statutory rape and sexual exploitation of a 15-year-old boy, finding the child’s evidence satisfactory and reliable despite investigative shortcomings.
- Conviction for engaging the sexual services of an adult set aside, as the court finds no proof of a commercial arrangement or procurement.
- Effective eight-year imprisonment confirmed, with bail withdrawn and immediate reporting ordered.
The High Court in the Western Cape has confirmed the eight-year effective prison sentence imposed on attorney Theo Hartzenberg for statutory rape and sexual exploitation of a 15-year-old boy in the Muizenberg beachfront precinct. The court also set aside his conviction for engaging the sexual services of an adult.
Judge G Da Silva Salie, with Acting Judge ZL Mapoma concurring, dismissed the appeal against convictions on Count 2 in the alternative and Count 7, but upheld the appeal on Count 25.
Hartzenberg, aged 36 at the time of the offences and an admitted attorney of the High Court, resided at the Empire Building Apartments opposite Muizenberg beachfront. He was known in the area by the nickname “lawyer.” The complainants were boys living on the streets in the Muizenberg beachfront area and frequented public landmarks, including the beachfront hokkies, the civic centre, and the bridge area known locally as “die kolletjie.”
Hartzenberg pleaded not guilty to all charges in the regional court and elected not to provide a plea explanation under Section 115 of the Criminal Procedure Act 51 of 1977. After the State closed its case, he applied for discharge in terms of Section 174.
The magistrate granted discharge on several counts where complainants were not called, or evidence was insufficient, but refused discharge on the remaining counts. Hartzenberg then closed his case without testifying. The convictions under appeal related to EC, who was 15 at the time of the offences, and JF, who was 18.
Evidence of the minor complainant
EC testified that Hartzenberg offered him money to penetrate him anally and that this occurred on more than one occasion in secluded areas near the beachfront. EC, who was living on the streets at the time, said he accepted the money out of necessity.
Judge Da Silva Salie recorded that the magistrate approached EC’s evidence with the required caution applicable to child witnesses. The court held that his account of “the sexual acts, the locations, the payments, and the nature of the appellant’s conduct was coherent and consistent in material respects.”
Although the investigation was criticised for irregularities, including issues relating to statements and arrest details, the High Court found these shortcomings did not undermine the reliability of the core evidence. The judge stated that “whilst the investigation was not beyond reproach, the irregularities did not materially affect the reliability of the evidence on the counts resulting in conviction.”
JF, the adult complainant, corroborated aspects of EC’s testimony, including an incident where EC reported finding faecal matter on his trousers after an act of penetration. The High Court noted that this corroboration was material and strengthened EC’s credibility.
The court concluded that “there is no basis to interfere with these convictions,” finding that the State had proved beyond a reasonable doubt that EC, a minor under 16, penetrated Hartzenberg at his instance and for money, and that Hartzenberg induced EC to perform a sexual act for reward.
Sexual penetration and statutory construction
A central argument raised on appeal was that Hartzenberg could not be convicted of statutory rape because he was penetrated by the minor, rather than being the penetrating party.
The court rejected this submission as legally untenable. Judge Da Silva Salie emphasised that the definition of “sexual penetration” in Section 1 of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007 is deliberately broad and gender neutral. The judgment records that “the statutory wording does not require that the appellant be the penetrating party.”
The court held that the minor’s penis penetrating the appellant’s anus, at the appellant’s instance, fell squarely within the statutory definition. The judge observed that the appellant’s argument that he “could not rape because he was penetrated” would fail as a matter of statutory construction.
Count 25 set aside
On Count 25, relating to engaging the sexual services of an adult under Section 11(1) of the same Act, the High Court found that the essential elements were not established.
Although JF testified that intercourse occurred and that he received money afterwards, the court found no evidence of procurement, solicitation, or engagement of services in a commercialised sense. The judgment states that “the payment was spontaneous and unaccompanied by any arrangement or understanding that he was being hired.”
In the absence of proof that JF was engaged as a sex worker or that his services were procured for reward, the court held that “the essential element of engaging the services was not proved.” The conviction on Count 25 was therefore set aside, along with the three-month suspended sentence attached to that count.
Right to silence and refusal of postponement
Hartzenberg also challenged the trial court’s refusal to postpone proceedings to allow two defence witnesses to testify before him regarding the orientation of the Muizenberg beachfront.
The High Court found no irregularity in the refusal. Judge Da Silva Salie held that “the discretion was properly exercised and there was no irregularity,” adding that the refusal did not result in an unfair trial.
After the refusal, Hartzenberg elected not to testify. The court referred to S v Boesak, reiterating that while no adverse inference may be drawn solely from silence, where the State’s evidence calls for an answer and none is given, the State’s case remains uncontested.
Sentence confirmed
In considering the sentence, the court focused on EC’s vulnerability. The judgment records that EC lived on the streets without parental care or supervision and was “financially and socially vulnerable.” The court found that Hartzenberg exploited these circumstances by offering small sums of money for acts of anal penetration.
Judge Da Silva Salie described the conduct as “predatory” and found the moral blameworthiness to be high. Although the conviction on Count 25 was set aside, the sentencing structure on Counts 2 and 7 remained intact. The court held that the effective eight-year term of imprisonment was proportionate and justified.
The appeal was dismissed in respect of Counts 2 and 7. The conviction and sentence on Count 25 were set aside and antedated to 2 December 2024. Hartzenberg’s bail was withdrawn, and he was ordered to report to the Clerk of the Criminal Court in Wynberg on 2 March 2026 for transportation to commence serving his sentence.
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