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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.:A97/2024
In the matter between:
APHIWE MGWALI Appellant
and
THE STATE Respondent
JUDGMENT DELIVERED ELECTRONICALLY ON 16 OCTOBER 2024
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] This is an appeal, with leave of the Wynberg Regional Court, against the
conviction and sentence of the appellant who was charged with rape and sentenced
to 10 years’ direct imprisonment . The appellant was charged with contravening
section 3, read with sections 1, 36(1), 52(b), 57, 58, 59, 60, 61 and 68 of the Criminal
Law Sexual Offences and Related Matters Amendment Act 32 of 2007; further read
with sections 24 , 256, 261 and 281 of the Criminal Procedure Act 51 of 1977 ( “the
CPA”), section 51(1) of the Criminal Law Amendment Act 105 of 1997 ( “the CLAA”),
and the Children's Act 38 of 2005.
[2] It was alleged that, at approximately 2am on 16 May 2022 the appellant raped
the complainant in her bedroom at her home where she lived with her brother, A[...]
S[...] (“S[...]”). The complainant was 16 years’ old at the time of the incident, with her
birthday on 5 August 2005 . The appellant’s defence in the court a quo was that he
and the complainant had consensual sex on the day in question . The medical
evidence led at the trial confirmed that there had been recent penetration, and the
main question for adjudication was whether it was consensual.
[3] According to the complainant, on the night of 15 May 2022 she returned home
very drunk after spending the night drinking at a friend’s place. Her friend s had
accompanied her and put her into bed at home. She was wearing jeans, a t-shirt and
underwear when she went to sleep. She had passed out and woke n up with the
appellant on top of her, with his penis inside her vagina. It was the penetration that
woke her up from her sleep. The appellant had taken off her jeans completely and
then moved her panties to the side, instead of taking them off completely, so that he
could penetrate her. A friend of the appellant, referred to as Cheese, was also
present in the room, watching the rape.
[4] When the complainant woke up and saw the appellant, she shouted at him,
pushed him off and chased him and Cheese out of her bedroom, and then bolted the
door o f her bedroom. Thereafter, she went back to sleep. In the morning, she
reported the rape to her brother and to a cousin. She, her brother, the cousin and
some friends went to the appellant’s home to report the incident , but the appellant
was not home . Later, when the appellant returned from work, they confronted him,
and also assaulted him at some stage.
[5] The complainant also reported the incident to a male cousin, one J [...] S[...],
who had contacted the police. However, the police did not react, and the complainant
and company approached a lady from the community who also phoned the police.
Eventually, t he police arrived and took the complainant and others to the police
station where written statements were taken from the complainant and her brother.
The complainant was also later taken to Victoria Hospital, where she was examined.
[6] Before discussing the grounds of appeal and the rest of the evidence, it is well
to set out the relevant law.
B. RELEVANT LAW ON APPEAL
[7] The law is settled that an appeal court may only interfere with the decision of
a trial court if it is established that there was a material misdirection in respect of
facts and/or law. 1 In the absence of demonstrable and material misdirection by the
trial court, its findings of fact are presumed to be correct and will only be disregarded
if the recorded evidence shows them to be clearly wrong.
[8] Similarly, an appellate court’s power to interfere with sentences imposed by
courts below is circumscribed.2 It can only do so where there has been an irregularity
that results in a failure of justice; 3 and the court below misdirected itself to such an
extent that its decision on sentence is vitiated. 4 Ultimately, there must be a material
misdirection by the trial court.5
[9] In S v Malgas6 it was stated that, even in the absence of material misdirection,
an appellate court may yet be justified in interfering with the sentence imposed by
the trial court when the disparity between the sentence of the trial court and the
sentence which the app ellate court would have imposed is so marked that it can
properly be described as “shocking”, “startling” or “disturbingly inappropriate”. This
standard has been articulated differently in several cases, including the standard of
1 S v Francis 1991 (1) SACR 198 (A) at 198J-199A.
2 S v Bogaards [2012] ZACC 23 ; 2012 BCLR 1261 (CC); 2013 (1) SACR 1 (CC) para 41; R v
Dhlumayo and another 1948 (2) SA 677 (A); S v Pieters 1987 (3) SA 717 (A) at 727; See also S v
Salzwedel and Others 1999 (2) SACR 586 (SCA) at para 10.
3 S v Jaipal [2005] ZACC 1 ; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC) at para 39 and R v
Solomons 1959 (2) SA 352 (AD) at 366C.
4 Anderson above n 37 at 495D and Kruger Hiemstra’s Criminal Procedure Service Issue 5
(LexisNexis, Cape Town, 2012) (Hiemstra) at 30-49 to 30-50 for a full discussion on misdirection.
5 See S v Brand 1998 (1) SACR 296 (C) at 303 E-J.
6 S v Malgas [2001] ZASCA 30; [2001] 3 All SA 220 (A) (19 March 2001) para 12.
whether the sentence “creates a sense of shock”. Ultimately, the question is whether
the court could reasonably have imposed the sentence that it did.7
[10] To reach an appropriate sentence, a court is duty -bound to consider the
nature and the seriousness of the offence that the accu sed has been found guilty of,
the personal circumstances of the accused as well as the interests of society - what
is often referred to as the triad of considerations.8
[11] It goes without saying that each case must be adjudicated on its own facts
and that no two cases are the same. 9 It is incumbent upon a court in every case,
before it imposes a prescribed sentence, to assess, upon a consideration of all the
circumstances whether the sentence is proportionate to the particular offence. 10
Punishment imposed by a court should fit the criminal, as well as the crime and be
fair to society and blended with the measure of mercy11.
[12] A court is also enjoined take into consideration the main purposes of
punishment, namely retribution, deterrence, prevention and rehabilitation. All these
must be accorded due weight in any sentence. As the SCA has stated in S v RO
and Another12 :
“Sentencing is about achieving the right balance or in more high -
flown terms, proportionality. The elements at play are t he crime,
the offender, the interests of society with different nuance,
prevention, retribution, reformation and deterrence. Invariably
there are overlaps that render the process unscientific, even a
proper exercise of the judicial function allows reasonab le people
to arrive at different conclusions.”
7 See for example S v Sadler 2000 (1) SACR 331 (SCA) at para 8, and S v Bolus and Another 1966
(4) SA 575 (AD) at 581E-G.
8 S v Zinn 1969 (2) SA 537 (A) at 540G.
9 Asmal v S para 7.
10 S v Vilakazi 2009 (1) SACR 552 (SCA) para 15. Opperman v S [2010] 4 All SA 267 (SCA) at 2 78
para 30.
11 S v Rabie 1975 (4) SA 855 (A).
12 S v RO and Another 2000 (2) SACR 248 (SCA) at paragraph 30. See also Opperman v S.
C. APPEAL AGAINST CONVICTION
[13] In respect of the conviction, t he appellant’s main ground of appeal is that the
complainant was a single, child witness, whose evidence was not corroborated in
material respects. The complainant is also criticized for giving a first -hand account in
her oral evidence which, according to the appellant, was a reconstructed version. It
was also argued that the complainant’s version of her sobriety was contradictory.
The appel lant also criticizes the complainant’s conduct as improbable in that ,
according to her, she went back to sleep after the rape and yet became angry on the
following morning. The appellant also argues that the absence of consent for the
sexual act was not pr oven beyond reasonable doubt. The appellant also criticizes
the complainant’s brother, S[...], for aspects of his evidence which were not included
in a written statement that he gave to the police. Finally, th e appellant emphasizes
that alcohol played a major role in the incident.
[14] I commence with the criticism that the complainant was a single, child
witness. The Magistrate was alive to this issue and set out the applicable and settled
case law in this regard, reminding herself of the legal approach to be adopted . This
includes the case of Woji v Santam Insurance Co Ltd 13, in which the Supreme Court
of Appeal (SCA) held that a court must be satisfied that the evidence of a child
witness is trustworthy, which was said to include factors such as the child’s power of
observation, power of recollection, and power of narration on the specific matter to
be testified.14 It must be remembered too that in terms of section 60 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007:
‘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.’
13 Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A) at 1028B-D.
14 See Maila v S (429/2022) [2023] ZASCA 3 (23 January 2023) para 17 - 18.
[15] It is apparent from her judgment that t he Magistrate was alive to all these
considerations. She also correctly referred to section 208 of the CPA in terms of
which it is competent for a court to convict an accused based on the evidence of a
single witness. In applying these principles, t he Magistrate took into account the fact
that the complainant gave a concise and clear testimony, and maintained her version
that t he appellant had raped her, noting only that she exhibited some irritability
during her evidence which the Magistrate did not find to be out of place.
[16] The Magistrate also had regard to the alleged contradictions between the
complainant’s oral evidence and her written statement regarding how she got home
that night and got undressed when she got home. It was argued on behalf of the
appellant that this rendered her evidence unreliable.
[17] It is correct that the cross examination of the complainant established that the
information relating to her return home on the night of 15 May 2022 with the
assistance of her friends, and not undressing herself before getting into bed, and the
fact that her friends had only taken off her shoes before they left her in her bedroom,
had in fact been relayed to her by friends who did not give evidence in the court a
quo. This was on account of the fact that the complainant was so drunk that she had
blacked out on her way home. When challenged regarding why she failed to mention
in her evidence in chief that the information above was relayed to her by her friends,
her explanation was that she had been cautioned (early during her oral evidence) to
not give long answers . The complainant’s explanation was not challenged , and t he
Magistrate correctly made the same observation.
[18] Similarly, the complainant was confronted with inconsistencies appearing in a
written statement which she made to the police on the day of the incident. First, she
stated in it that she was 17 years old, whereas she was still 16 at the time of the
incident. Her explanation was that she had explained to the police that she was soon
turning 17. Second, similar to her evidence in chief, she stated in her written
statement that she had taken off her shoes upon arriving home, without mentioning
that that information was relayed to her by her friends. Her explanation for this was
that it was because of the way in which the police officer who took down her
statement had asked questions. The police had not asked her who she was with,
and she did not think it was necessary to explain that she was with her friends on the
night of the incident. Next, it was put to her that she failed to mention the presence of
Cheese during the rape in her written statement. The complainant stated that she
had told the police that the appellant was with someone on that night but that the
person, whose name she did not mention to the police, had not done anything to her.
Her explanation was that she did not think this was a significant omission because
she wanted to focus on what the appellant did.
[19] In summary, her explanation for the omissions in her evidence and in her
written statement amounts to stating that she relied on the professionals - the
lawyers and the police - to elicit the correct information from her , and her
explanations were not challenged during her evidence. What is s ignificant as
regards the clothing she wore and being undressed by her friends before going to
sleep is that the complainant’s evidence was not challenged that, when she woke up
during the rape, her jeans were off whilst her panties were still on but moved to the
side to facilitate penetration by the appellant. So, to the extent that any aspect of the
evidence relating to her clothing and undressing was relayed to her, it was
corroborated by her own experience when she woke up.
[20] Of further significance is the fact that the essential averments concerning the
rape were repeated in the complainant’s written statement, where the complainant
stated as follows:
“He had his penis inside my vagina. My jeans were off completely from
my body and the panty were still on he moved it to the side and had his
pants unzipped and his penis was inserted inside my vagina. I was
shocked and shouted at him then he jumped and zipped up his pan ts
and then I told him to leave. Then he left. He had not used a condom.”
[21] The Magistrate had regard to all this evidence , and found that there were no
material contradictions in the complainant’s evidence. I do not find any irregularity in
this regard.
[22] In my view, w hen considering the version of the complainant as a single
witness, the evidence of her brother , S[...], is relevant. He confirmed that, on the
morning of 16 May 2022 the complainant reported that she was raped by the
appellant. Her report to him was that she had gone to sleep drunk and woke up to
find the appellant on top of her, with his penis inside her vagina . She had been
shocked, pushed the appellant away, shouted at him and kicked him out of her
bedroom.
[23] S[...] continued tha t the complainant had reported all of this when he was
returning from visiting a friend in the morning and she had approached him while he
was in the street on his way back home. After the complainant’s report, they had
together gone to look for the appellant at his home but he was not there, and they
had reported the ra pe to the appellant’s mother , who told them t o return when the
appellant was back home. This was some time between 8h00 and 9h00 in the
morning. He also confirmed that he and the complainant were accompanied by the
complainant’s friends when they went to report the incident at the appellant’s home.
They went to the appellant’s home on approximately three occasions without
success, after which they went to the police.
[24] None of S[...]’s evidence regarding the complainant’s report of the rape was
disputed. His evidence corroborated the complainant ’s version in several respects.
First, in relation to the complainant’s immediate reaction when she discovered the
appellant on top of her, raping her; that she shouted at him , pushed him off and
expelled him from her bedroom. And according to S[...], the complainant was furious
when she reported the rape to him. In addition , they corroborated each other
regarding the visit to the appellant’s home and report of the matter to his family. S[...]
testified that they had attended to the appellant’s home several times and were told
he was not home and was at work . Lastly, they bo th testified that they attended at
the police station where they gave written statements. In other words, all of the
complainant’s conduct from the rape afterwards was corroborated.
[25] It is noteworthy that , from the morning after the incident, the conduct of the
complainant was consistent in that she reported the rape to many individuals , and
was looking for the appellant with a view to confronting him. The appellant confirmed
that, while he was at work, h e was alerte d to a Facebook post by a friend of the
complainant which accused him of the rape. He also confirmed that, by the time he
arrived home, he was informed that the police had attended at his home and were
looking for him. This conduct also confirms the complainant’s evidence that, although
she did not know how to react to the rape at the time of the incident, save for
shouting at him and kicking him out of the room, she had also resolved that she
would have him arrested on the following morning.
[26] As to the events of the night before the incident , similar to the complainant ,
S[...] blacked out or, according to him, ‘tipped’ after a night of drinking with his own
friends at a nearby tavern called Castro’s. One of those friends was the appellant.
From Castro’s, S[...] and friends, including the appellant and a person called Kamva ,
went to his house to finish the alcohol. He could not remember the names or the
exact number of the additional friends who joined him from Castro’s. He also could
not remember much of what happened after arriving home, and could not say when
exactly he had tipped, and could only recall the fact that he shared his bed with the
appellant, while two others slept in the same room but on a different bed.
[27] While S[...] was in bed during the night, he heard his sister arriving back
home, and heard her door opening and closing , and also heard her talking which he
assumed was to her self. Soon thereafter, he got up and went to check on the
complainant, and he found the appellant in the complainant’s room. He asked the
appellant what he was doing in the complainant’s bedroom, and the appellant stated
that he was going to the toilet. S[...] told him to get out of the complainant’s bedroom,
and the appellant went back to bed . Later, the appellant again got out of bed, and
when S[...] wanted to know where he was going, the appellant told him he was going
to the toilet . The toilet is next to the bedroom of the complainant. S[...] followed the
appellant to the toilet , where the appellant sat on the toilet seat and said he would
sleep there. Because S[...] was tired and wanted to sleep, he left the appellant in the
toilet. During all these events, the other friends who had slept over were asleep.
[28] In cross examination, S[...] was confronted with the fact that his written
statement made no mention of finding the appellant in the complainant’s bedroom on
that night or of the appellant telling him he was going to the toilet; or of his sister
coming home and speaking to herself. He could not explain th ese omissions though
he stated that he had relayed this information to the police who had taken down the
written statement for him. At the same time, he stated that he had read the statement
after it was w ritten down for him . Accordingly, there remained no explanation for
these omissions from his written statement. This may explain why the Magistrate did
not take this evidence into account when she evaluated the evidence . In turn, the
appellant has not been able to point to any misdirection committed by the Magistrate
in this regard.
[29] It was argued before us that, because S[...] omitted the said evidence from his
written statement, this negatively affected his credibility. I do not agree. The record
indicates that S[...] was a fair witness. For example, he readily admitted that there
may be things that his sister does not share with him, including a possi ble romantic
relationship with the appellant. He also readily stated that he did not know whether
the appellant and his sister spoke on that evening or agreed to have sex. He also
stated that he did not know whether or not the appellant had raped his siste r. All of
this indicates that the witness was an honest witness in relation to the rape, because
he could have easily implicated the appellant if he wanted to. There was accordingly
no reason to find that he was not a credible witness.
[30] Apart from fully corroborating the evidence of the complainant concerning the
immediate report of the rape on the morning after the incident, which I have already
dealt with, the evidence of S[...] is important in other respects concerning the rape
itself. Firstly, although he readily admitted that the appellant and the complainant
could have been in volved in a romantic relationship, he, like the complainant, firmly
disputed that the appellant slept over in the complainant ’s bedroom on that night.
S[...]’s first memory of that night after he blacked out, was of him and the appellant in
his bed in his bedroom. This evidence, which was elicited during cross examination ,
was not disputed.
[31] By contrast, the appellant belatedly claimed that S[...] was aware that he (the
appellant) was sleeping in the complainant’s room that night and had seen them
together in that room . As the Magistrate correctly pointed out, this new version was
not put to S[...].
[32] The appellant’s belated version was coupled with an allegation that at 5am on
the morning of 16 May 2022, the complainant woke the appellant up so that he could
attend work. The question that arises in light of th is evidence is, if the complainant
woke him up at 5 am in order for him to attend work, why would she attend at his
home between 8am and 9am, some three or four times, expecting to find him there?
I have already adverted to the fact that the complainant and her brother corroborated
each other regarding the fact that they and the complainant ’s friends went to the
appellant’s home repeatedly. The appellant confirmed that, whilst he was at work, he
had received a phone call from home informing him that the complainant had
attended at his home with her friends, reporting that he had raped her.
[33] It is clear from this evidence that the complainant was not aware of the
appellant’s whereabouts during this time. It shows that she expected the appellant to
be at home on that morning . That is the only reason they returned on three or four
occasions. This is in stark contrast to the appellant ’s version that the complainant
was aware that he was at work because she had lovingly woken him up on that
morning after spending the night together in her bed.
[34] Another aspect in respect of which S[...]’s evidence is significant relates to his
undisputed evidence that he was in bed when his sister arriv ed home. T his is in
direct contradiction to the appellant’s version that , when the complainant came
home, she joined him and the others, including S[...], who were all drinking, and that
it was during that time that he and the complainant reached an agreement to have
sex. The significance of S[...]’s version is that it takes away the possibility of a
conversation between the appellant and the complainant in which they agreed to
have sex.
[35] In this regard, the evidence concerning the state of sobriety of the
complainant is also significant. She testified that she had blacked out on her way
home and sobered up only when she woke up with the appellant raping her. As a
result, she could not give any evidence as to who was in the house when she arrived
home. In fact, as the Magistrate held, the complainant did not think that her brother
was home when she arrived because she had last seen him during the afternoon of
15 May 2022. The significance of this evidence is that the complainant was too drunk
to even socialize further on that night, let alone entering into an agreement to have
sex. Her version is rather supported by the evidence of S[...], that all in the house
were in bed when she arrived home.
[36] The appellant attempted to deny the complainant was drunk during his
evidence, during the following exchange:
“APPELLANT: Yes, your worship, she drank.
PROSECUTOR: Was she drunk?
APPELLANT: Not in a state where she would not know what she is
doing, you worship.
PROSECUTOR: I put it to you if she was drunk, she could not have had
consensual sex with you.
APPELLANT: It has happened before, you r worship, where she would
drink and get drunk a nd then we would still sleep
together, you worship.
PROSECUTOR: She was not in her sound and sober senses when she on
this night of the rape case that you had sex with her what
do you say to that?
APPELLANT: I would say, you r worship, yes, she had somet hing to
drink, your worship, she had alcohol to drink but she was
in a sound mind, you r worship, and because we spoke
and both of us, we spoke, you r worship, and we
consented to sleeping together, your worship.”
[37] This was a significant feature of the appe llant’s evidence, because without its
belated introduction, there was no opportunity to have reach ed agreement with the
complainant to have consensual sex. In other words, if the complainant was not too
drunk when she arrived home, the possibility of reach ing agreement to have
consensual sex was alive. As the Magistrate observed however, the appellant later
contradicted himself and admitted that the complainant was not sober, during the
following exchange:
Prosecutor: But you would agree therefore that i f you were drunk you would
not be in your sound and sober senses?
Appellant: You are not sober, your worship.
Prosecutor: You are not in your sound senses. What is the answer?
Appellant: Yes.
Prosecutor: So you agree with me that [the complainant] was also not in her
sound and sober senses?
Appellant: She was not sober, your worship.”
[38] From the record, these conversations regarding the complainant’s sobriety
were in the context of the whole evening as opposed to during the sexual act. It
bears repeating that the complainant’s own evidence that she blacked out before she
even reached home until the sexual act, was not disputed. She described the brandy
and beers that she drank that night. She was heavily drunk. It is understandable that
the Magistrate queried how such a drunk person could give consent. It is also
understandable, g iven the appellant’s attempt to deny the complainant’s drunken
state, that the Magistrate held that the appellant’s evidence was unreliable and
lacking in credibility.
[39] I agree with the assessment of the appellant’s credibility for an additional
reason. He belatedly claimed that it was the complainant ’s friends who put her up to
making false allegations of rape against him, and that she did not really want to
make that complaint. Not only was t his not put to the complain ant, but it was not
substantiated. The Magistrate correctly dismissed it.
[40] As I have already indicated, the appellant criticizes the complainant because
she went back to sleep after the rape. Her explanation, in part, was that she did not
know what to do at the time other than to expel the appellant from her bedroom.
Further, that it was still in the night-time, and she did not know where her brother was
because the last time she had seen him on the previous day was when he was
outside at a nearby tavern with friends. She was also scared of what the appellant
and Cheese might do to her if she left her bedroom again. This is why she opted to
rather lock her bedroom door from the inside, and told herself that in the morning she
would report the appellant to the authorities. This evidence was not challenged, and
the appellant has not pointed to why this explanation is not plausible.
[41] It has been repeatedly pointed out 15 that victims, including from rape, display
individualised emotional responses to an assault, and that they may only decide to
report an incident once they are supported by a family member or when a friend
confirms that this behaviour is indeed wrong. 16 This is precisely what happened in
this case, where the complainant went back to sleep and waited for the opportunity
to report the matter to her brother who was , for all intents and purposes, her
guardian. And in the morning, at the first available opportunity of the day, she
approached her brother in the road whilst he was returning from a visit to report the
matter to him.
[42] I have already mentioned that the medical evidence confirmed recent vaginal
penetration of the complainant. Dr Peffer testified regarding the contents of a J88
form which she completed when she examined the complainant on 16 May 2022 at
17h25 at Victoria H ospital. The findings of the gynecological examination included a
fresh abrasion on the right labia minora, adjacent to the vaginal, which she also
described as an acute genital trauma. Her conclusion was that, given its location and
length, it was the result of penetration by a blunt object. However, it could be a result
of consensual sex, but which would result from very rigorous activity, with no
lubrication used. The medical evidence therefore did not conclusively confirm a rape,
but it did confirm that penetration had taken place.
[43] It is significant that the Magistrate found in the appellant’s favour that he and
the complainant could have previously engaged in consensual sex whilst they were
both drunk. Even so she found, on the facts of this case, tha t there was rape. In fact,
she applied the provisions of sections 56(1) of the Criminal Law Sexual Offences
and Related Matters Amendment Act 32 of 2007 which provide that it is not a valid
defence for a person accused with rape to contend that there is a marital or other
15 S v Monageng (590/06) [2008] ZASCA 129; [2009] 1 All SA 237 (SCA) (1 October 2008) paras 23 –
24.
16 See Maila v S para 28 , referring to UNODC Handbook for the Judiciary on Effective Justice
Responses to Gender-based Violence against Women and Girls, at 25.
relationship between him or her and the complainant. I find no misdirection in the
Magistrate’s findings regarding the conviction.
D. THE APPEAL AGAINST SENTENCE
[44] As regards sentence , it is apparent from the record that an error was made,
and the State concedes as much. The appellant was charged with, and was asked
to plead to the provisions of section 51(1) of the CLAA, which provide as follows:
“Notwithstanding any other law, but subject to subsections 3 and 6, the
Regional Court or a High Court shall sentence a person it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for life.”
[45] In both the conviction and sentencing judgments, however, the M agistrate
stated that the appellant was charged in terms of section 51(2)(b) of the CLAA,
which provides as follows:
“Notwithstanding any other law but subject to subsections (3) and (6), a
regional court or a High Court shall sentence a person who has been
convicted of an offence referred to in…Part III of Schedule 2, in the case of –
(i) a first offender, to imprisonment for a period not less than 10 years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 15 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for
a period not less than 20 years…”
[46] The issue gets more complicated. The appellant was charged with the wrong
minimum sentence provision. At the time of the offence in this matter, 16 May 2022,
Part I of Schedule 2 provided that the rape victim had to be a person under the age
of 16 years in order for the provision to apply. In other words, as at 16 May 2022, the
life imprisonment sentence prescribed in Part I of schedule 2 w as only applicable if
the rape victim was under the age of 16. Th at did not apply to the complainant who
had already turned 16 years old at the time of the incident . The evidence was that
she was already 16 years old and was due to turn 17 on 5 August 2022 . It was only
with effect from 5 August 2022 that the age limit was increased to 18, by means of
the Criminal and Related Matters Amendment Act 12 of 2021. This means the
appellant could not have been convicted of 51(1) of the CLAA, read with Part I of
Schedule 2.
[47] The applicable provision is rather section 51(2)(b) of the CLAA, read with Part
III of Schedule 2. One assumes that this is the reason that the Magistrate applied
section 51(2)(b) in her judgment , although the record makes no mention of the
reasoning for her departure from the provision in the charge sheet . It is clear ,
however, from the sentencing remarks at paragraph 33 of the sentencing judgment
that those are the provisions that the Magistrate took into account when she held
that there were no substantial and compelling circumstances to deviate from the
prescribed minimum sentence of 10 years’ direct imprisonment.
[48] The question is whether there was a material misdirection which requires this
Court’s intervention. The primary consideration in my view, is one of jurisdiction , as
was the case in Ndlovu v S17. The Constitutional Court highlighted in that case18 that
Magistrates’ Courts are creatures of statute and have no jurisdiction beyond that
granted by the Magistrates’ Courts Act and other relevant statutes. In Ndlovu v S, the
Regional Magistrates’ Court had sentenced an accused to life imprisonment in terms
of s ection 51(1) despite his having been charged with section 51(2). The
Constitutional Court held19 that the Magistrates’ Court would have had jurisdiction to
sentence the accused to life imprisonment only if it had convicted him of an offence
referred to in Part I of Schedule 2, which was not the case.
[49] On application to the present case, b ecause the rape victim was not under 16
years of age at the time of the incident, Part I of Schedule 2 was not triggered. As a
17 Ndlovu v S 2017 (2) SACR 305 (CC)
18 At para 41.
19 See para 42.
result, the Magistrate Court did not have jurisdiction to sentence the appellant to life
imprisonment, and if she had imposed suc h a sentence, that would have amounted
to a material misdirection. Rather, the correct provision in the circumstances would
have been section 51(2), which is what the Magistrate in effect applied.
[50] It is so that an accused person should be informed at the outset of the trial of
the correct provisions of the CLAA or other provisions relating to an increased
sentencing regime that the state intends to rely upon or are applicable. 20 However,
this is not an absolute rule , and each case must be determined on its own particular
facts and circumstances . Although it is desirable that the facts the state intended to
prove to increase the sentencing jurisdiction under the CLAA should be clearly set
out in the charge sheet, substance must prevail over form.21
[51] Ultimately, t he determination of whether the rights to a fair trial have been
infringed turns on the question of prejudice to the accused .22 It has been held 23 that
an indication of the existence of prejudice to an accused is if he or she could
reasonably have conducted his or her defence differently, if he or she were informed
at the outset of the trial of the applicable provisions of the Minimum Sentences Act. If
there is a reasonable possibility that the accused may have conducted his or her
case differently, there would in these circumstances be an infringement of the right to
a fair trial.
[52] Unlike the cases discussed above, the distinguishing feature of this case is
that the Magistrate approached the imposition of sentence conscious of the
applicable prescribed minimum sentence in the circumstances of this case . 24 As the
SCA stated in S v Malgas :“The mental process in which courts engage when
considering questions of sentence depends upon the task at hand” 25. The Magistrate
met this requirement when she applied section 51(2) of the CLAA.
20 Khoza and Another v S (1267/2017) [2018] ZASCA 133; 2019 (1) SACR 251 (SCA) (28 September
2018) para 10.
21 S v Legoa 2003 (1) SACR 13 SCA [2002] ZASCA 122 para 21.
22 Khoza op cit, para 10.
23 Khoza op cit, para 10.
24 At para 24B.
25 At para12.
[53] Furthermore, whereas the appellant pleaded to the minimum sentence of life
imprisonment, he was in fact liable to a lesser sentencing regime , although still in
terms of the minimum provisions of the CLAA . There is no discernible prejudice that
may be said to have been incurred by him in this regard. If anything, the events set
out in this part of the judgment turned out in his favour. This much is supported by
the arguments advanced on his behalf in this Court, to the effect that the Magistrates’
Court did not have jurisdiction to impose life sentence on the facts of this case. I
agree. There would accordingly be no point in remitting the matter to the Magistrates’
Court simply so that the charge may be amended to substitute section 51(1) with
section 51(2). The correct provision has already been considered and applied by the
Magistrates’ Court. Considerations of proper administration of justice militate against
such an approach which, in effect, would amount to elevating form over substance.
[54] Having considered the factors taken into account in arriving at the sentence, I
am furthermore of the view that there is no basis to interfere with the sentence of 10
years meted out by the Magistrate. The appellant stated that he is a father of one
child who lives with the appellant’s mother, and is a breadwinner who supports his
family. He is also a first -time offender. Even taken cumulatively, the personal
circumstances relied upon by the appellant do not amount to substantial and
compelling circumstances which justify the imposition of a lesser sentence than the
one prescribed in section 51(2). It must be remembered that the legis lature
recognized the noxious prevalence of rape in our society when it instituted the
prescribed minimum sentence. The seriousness of the crime committed by the
appellant cannot be over -emphasized, especially when taking into account that the
rape in this case occurred in the safety of the complainant’s home and bedroom.
[55] In the circumstances, the appeal against convi ction and sentence is
dismissed.
______________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
I agree, and it is so ordered.
_________________________
A. KANTOR
Acting Judge of the High Court
APPEARANCES
For the appellant : Adv M Calitz
Legal Aid South Africa Cape Town
For the respondent : Adv N G Breyl
Directors of Public Prosecutions