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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: A 06 / 2023
In the matter between:
X[...] W[...] Appellant
and
THE STATE Respondent
Coram: Le Grange ADJP (as he then was) , Wille J et Bishop AJ
Heard: 22 March 2024 and 1 November 2024
Delivered: 24 January 2025
___________________________________________________________________
JUDGMENT
THE COURT : (unanimous)
INTRODUCTION
[1] This is an ‘automatic’ appeal from the lower court against conviction and
sentence. This is because the appellant was sentenced to life imprisonment by the
lower court. The appellant w as convicted of three count s of sexual penetration
following our targeted legislation dealing with sexual offences of this nature.1
[2] The a ppellant was legally represented during his trial proceedings. He
pleaded not guilty to the offences as preferred against him and elected not to
advance any plea explanation. The charge s against the appellant were also read
with the relevant provisions of the minimum sentencing regime.2
[3] The appeal against the conviction s was initially based on the following
grounds, namely: (a) that the appellant’s legal representation failed to represent him
adequately (according to the appellant after his conviction) and (b) that the evidence
implicating the appellant was that of a single witness and was insufficient as it was
not satisfactory in every material respect.3
[4] After the appellant was convicted as charged and at the commencement of
the sentencing proceedings, the appellant raised with the trial magistrate for the first
time that he was dissatisfied with his legal representat ion. Accordingly, another
different le gal practitioner represented the appellant during the sentenc ing
proceedings in the court of first instance.4
[5] The appeal was initially heard some time ago, and specific issues needed to
be more fully ventilated with the result that the application was then reargued in front
of a full court as envisaged in s 14(3) of the Superior Courts Act .5
EVIDENCE
1 Contraventions of the provisions of section 3 of the Sexual Offences and Related Matters
Amendment Act, 32 of 2007.
2 Section 51(1) of the Criminal Law Amendment Act, 105 0f 1997.
3 The appellant effectively advanced that the evaluation of the evidence by the trial court was wrong.
4 The record reflects some difficulties between the appellant and his new legal representative.
5 Act No. 10 of 2013.
[6] The complainant testified that she was sexually abused by the appellant when
she was eight years old. The appellant is her stepfather . She testified that th ese
incident s happened when her mother was not at home, and the appellant was the
only adult present where she resided. She said this happened when the appellant
told her to ‘rest’ on his bed. The appellant sexually molested her on two separate
occasions on two consecutive days.6
[7] On the first occasion, she was sexually molested under the cover of a blanket
on the appellan t’s bed in her mother’s home . From the outset, she testified that her
relationship with the appellant was not ideal because the appellant was not kind to
her. On the first occasion when these offences occurred, her mother left her and her
siblings with h er aunt at her aunt’s house. The appellant arrived at her aunt's house
and removed her and her siblings, and they went to her mother’s house, where the
appellant also resided. When her siblings fell asleep, the complainant perpetrated
these sexual crimes against her.7
[8] The following day, her mother left her home and visited some of her friends .
On this occasion, she was once again sexually molested by the appellant in the
same fashion as before. Her mother returned on the day after this, and she was too
afraid to report what had happened to her mother. She eventually told her mother a
day after that. The incident was reported to the police, and she was taken for a
medical examination.8
[9] The clinical findings by the medical doctor who examined the complainant
were of significance. The examination revealed findings compatible with penetration
with a blunt object in the genital area and the anal area of the complainant. She
opined that pen etration had occurred vaginally through a blunt object . Extensive
widespread bruising was indicated in this area, which was also consistent with blunt
object penetration.9
6 This occurred on a Friday evening and the following Saturday.
7 This occurred on 30 August 2019 at her mother’s home in the appellant’s bedroom.
8 The first molestations took place on a Friday, the second on a Saturday. She reported the matter
to he r mother on Monday.
9 The medico -legal examination report was submitted into evidence and recorded as an exhibit.
[10] The complainant’s mother testified that he r daughter made a report to her
about the sexual molestation perpetrated on her by the appellant. The report made
by the complainant to her mother was consistent with the complainant's testimony ,
which was also corroborated by the medical evidence.10
[11] The appellant testified and called no witnesses. The appellant did not in any
manner dispute the correctness of the medical evidence. He also did not dispute
that on the alleged occasions when the sexual molestation of the complainant
occurred, he was the onl y adult in the presence of the complainant at that time.
However, he denied penetrating the complainant.11
CONSIDERATION
CONVICTION
THE ADEQUACY OF A SINGLE WITNESS
[12] The respondent’s case is that the tapestry of the available evidence prove d
that the appellant sexually molested the complainant beyond reasonable doubt .
Further, no evidence of any nature was presented to gainsay any evidence
presented by the witnesses for the prosecution save for the denials by the appellant.
In these circumstances , the circumstantial evidence indirectly supplie d proof .
Distinguishing direct and circumstantial evidence is also relevant when an appellant
does not call witnesses supporting his or her case .12
[13] This does not mean, as has sometimes been suggested, that an adjudicator
of the facts is entitled to (or is expected to) speculate as to the possible existence of
facts which, together with the proven facts, would justify a conclusion that an
accused person may be innocent. Instead, this means that an accused person runs
the risk that, absent any rebuttal on his or her part, the prosecution’s case may be
10 That she was molested on Friday and again on Saturday.
11 He did not dispute that he was alone with the complainant on the days when the alleged
molestation occurred.
12 S v Mthetwa 1972 SA 766 (A) 769.
sufficient to prove the elements of the offence , which may, in turn, lead to his or her
conviction .13
[14] Turning now to the facts of this case . The appellant 's testimony, in essence,
amounted to a bald denial. He also did not call any witnesses. This had
consequences.14
[15] We say this because , given the evidence tendered by the prosecution, it could
not have been expected of the respondent to wallow in conjecture to search for and
try and find answer s to every possible inference that may be drawn . We say this
because of the strategy adopted by the a ppellant. In the face of incriminating
evidence against him, the appellant's testimony amounted to a bald denial. In
addition, the court was also not expected to search for speculative explanations for
the appellant’s conduct, which , on the face of it, was very incriminating.15
[16] It must be so that any exculpatory suggestions or explanations that may have
been put to the respondents’ witnesses by the appellant’s legal representative did
not amount to evidence and carried no probative weight . This aspect also touches
on the issue of the alleged inadequate legal representation.16
[17] Finally, on this score, the respondent was not required to plug every loophole,
counter every speculative argument, and dodge every shield that imaginative
counsel c ould conceive without a scrap of evidence in substantiat ion thereof .17
[18] The appellant's core complaint is that the evidence tendered by the
complainant was unsatisfactory and that she was a young and impressionable single
witness. We disagree. The complainant was not a single witness. We say this
because, in its material ter ms, her evidence was corroborated by the other witness
who testified on behalf of the prosecution – her mother .18 Moreover, t he fact that
13 Osman and Another v Attorney -General, Transvaal 1988 (4) SA 1224 at para [22].
14 The appellant’s version was that these offences did not occur (a bald denial).
15 S v Sauls and Others 1981 (3) SA 172 (A) at 182 G - H.
16 The version put to the state witnesses was that these crimes did not take place.
17 S v Ntsele 1988 (2) SACR 178 ( SCA).
18 The other witnesses who testified on behalf of the respondent all corroborated portions of the
complainant’s testimony.
penetration occurred was corroborated by the medical evidence, which was left
unchallenged.
[19] The probative value and we ight of all the evidence presented must also be
tested and considered in the correct context, as the evidence incriminating the
appellant and the evidence possibly exculpating the appellant should not be viewed
and evaluated in separate compartments.19
[20] In this case, there is no evidence exculpating the appellant save his own
denial . By contrast, there is only evidence against him. The identification of the
appellant is not an issue in this appeal. This much was conceded.20
[21] The only possible complaint remains about the testimony of a single witness
and the so -called ‘cautionary ’ rule in sexual assault cases . The lower court's judicial
officer was acutely aware that the complainant was a single witness, and no
misdirection or irregularity occurred while assessing this evidence. Further, the test
to be applied for the proper evaluation of the evidence in sexual assault cases has
now been definitively determined. The so -called cautionary rule in sexual assault
cases no longer finds direct application.21
[22] It is trite that an appeal court’s powers to interfere with findings of fact made
by a court of first instance are limited. The factual findings are presumed to be
correct if there is no material misdirection by the trial court. Thus, the conclusion s
drawn by the trial court regarding the fact that the complainant was a single witness
and how this evidence was to be evaluated can only be set aside if it was wrong. It
was not.22
[23] The appellant did not in any manner dispute the correctness of the medical
evidence. He also did not dispute that on the alleged occasions when the sexual
molestation of the complainant occurred, he was the only adult in the presence of the
19 S v Van Der Meyden 1999 (1) SACR 447 .
20 It was conceded that the appellant was with the complainant when these offences took place.
21 S v M 1999 (2) SACR 548 (A) .
22 Masango v S (A175 / 2021) [2024] ZAGPPHC 64 (5 February 2024).
complainant at that time. He could not explain who else could have sexually
molested the complainant.23
[24] The appellant referenced some alleged previous charges upon which he
allegedly stood acquitted. Notably, this issue could have been engaged with during
the cross -examination o f the witnesses for the prosecution . This did not happen . We
cannot question their credibility on issues never put to them. T his brings us to the
second ground of appeal.24
THE INADEQUACY OF COUNSEL
[25] An accused’s right to legal representation in section 35(3)(f) of the
Constitution is a right to ‘…a proper, effective or competent defense …’25
[26] The representation must be of the necessary quality to ensure a fair trial. As
a general proposition, t here are two types of failures by defense counsel : - (a) those
that almost automatically mean the representation was incompetent, and (b) those
that will do so only if they may have materially affected the trial outcome . The former
category includes a complete failure to consult with an accused person . The latter
covers tactical decisions like ineffective cross -examination or electing not to call a
witness or witnesses .26
[27] In these cases, courts must give some leeway to the defense counsel. It is all
too easy to second -guess a defense lawyer with the benefit of hindsight. As Harms
JA laconically observed: ‘convicted persons are seldom satisfied with the
performance of thei r defense counsel.”27
[28] An accused person is not entitled to the best possible defense. They are
entitled to a competent defense that ensures a fair trial. But still, the right to legal
23 He did not dispute that he was alone with the complainant on the days when the alleged
molestation occurred.
24 The prosecutor elicite d from the appellant a possible motive during the cross -examination of the
appellant.
25 S v Halgryn 2002 (2) SACR 211 (SCA) at para graph [14].
26 These failures do not generally affect the issue of a fair trial.
27 S v Halgryn 2002 (2) SACR 211 (SCA) at paragraph [14].
representation ‘cannot simply mean to have somebody stand next to one to speak
on one's behalf’.28
[29] Instead , effective legal representation :
‘…entails that the legal adviser act in the client's best interests, saying
everything that is needed to be said in the client's favour and calling such
evidence as was justified by the circumstances in order to put the best case
possible before the court in the client's defen se…’29
[30] Ultimately, a court will not overturn a conviction merely because the accused’s
attorney made an error, even a negligent one. It will only overturn a conviction
because of inadequate representation in two situations : - (a) the failure was
fundamental, such as a failure to consult with the accused at all, so that it can be
said that there was no representation at all , or (b) t he representation fell below the
standard of what is reasonable, and if the accused had received competent
representation, there is a reasonable possibility it would have altered the outcome of
the trial. Although we could find no case that expressly adopt s this standard, it fits
with the jurisprudence from external authorit ies on the topic, from which our courts
have repeatedly drawn guidance .30 It also appears to strike the appropriate balance
between protecting the constitutional right to legal represent ation while not allowing
counsel’s every error to vitiate convictions that would have stood even with the best
possible representation.
[31] It is also in line with the ordinary standard adopted for irregularities that cater
for the position , among other things , that no conviction or sentence shall be reversed
or altered b ecause of any irregularity or defect in the proceedings unles s a failure of
justice has resulted from such irregularity or defect.31
28 S v Mafu and Others 2008 (2) SACR 653 (W) at paragraph [24].
29 S v Mafu and Others 2008 (2) SACR 653 (W) at a paragraph [24].
30 Strickland v Washington 466 US 668 (1984) .
31 There must be an adverse consequence for the alleged irregularity contended for by the appellant.
[32] Thus, the negligen ce of counsel per se is not a get -out-of-jail-free card. It
affects the legitimacy of the proceedings only if the negligence might reasonably
have affected the outcome.32
[33] This case appears to fall into the second category (we say it seems so
because, as we explain, the facts are uncertai n). The appellant must therefore
establish two things: - (a) that his attorney acted below what was expected of a
reasonable attorney , and (b) that there is a reasonable possibility that, if the
appellant’s attorney had acted diligently, the appellant m ight have been acquitted.33
[34] There are two complaints about how the appellant’s legal representative
conducted himself: - (a) how he led the appellant’s evidence and (b) his failure to put
his client’s (now alleged) new version to the state’s witnesses.34
[35] First – the examination in chief. Mr Shumi began his questioning by putting
the charges to the appellant and asking him if he was aware of them. He then asked:
“the first instance it occurred when you were present and three other minor children.
Do you remember that day?” The question is problematic. The Appellant’s defence
was that there was no “ins tance” of rape. That is presumably why he answered:
‘…I recall they said it was the Friday that that happened …’
[36] Mr Shumi then asked: “And Friday did you put anything in the vagina of the
child?” And then: “Did you put a finger into her anus?”. The appellant answered No
to both, but the prosecutor then objected that Mr Shumi was asking leading
questions.
[37] He then cha nged tack. He asked: “What happened on that day? Just narrate
everything which happened on that day.” The appellant began to do so. He gave an
explanation starting with his activities in the morning. While not all of his explanation
32 In our view, the outcome regarding the conviction was not tainted.
33 There was insufficient evidence to s how that the initial attorney did not act diligently.
34 No evidence was placed before us that the appellant advised his attorney of the new fabrication
claims.
may have been directly relevant, he was obviously trying to provide context for what
happened (or did not happen) later in the day.
[38] Mr Shumi clearly wanted the appellant to get to the point. He interrupted the
appellant twelve times to prevent him from providing his full version of events .35
[39] The effect of Mr Shumi’s approach to leading the appellant was twofold,
neither of which served the Appellant’s interests:
[39.1] The constant reference to “the incident” implied that something
occurred. But the appellant’s version is that nothing o ccurred. By
constantly requiring the appellant to talk about something that he
claimed did not happen, Mr Shumi implied that it did.
[39.2] The appellant was not able to get out his full version. He was not able
to explain the context of what occurred, who else may have been
present, how the complainant may have received her injuries, or why
she or her mother may have falsely accused him. These wer e (it
would turn out) all obviously relevant to his defence. Yet Mr Shumi
not only did not ask him questions to enable him to present his
version on those issues, he sabotaged his own client from doing so.
[40] This, however, is not enough (on its own) to set a side the conviction. It is not
enough because it does not satisfy the second part of the test. W e cannot say
whether there is a reasonable possibility that the failure to present the background
and the context of the alleged offences to the court affected the trial's outcome.36
While we may disagree with the manner and style of the appellant's initial attorney in
the presentation of the evidence, this does not mean that this affected the outcome
of the trial. No evidence was presented in this connection. The appellant was
35 “Just be brief and straight to the point;” “Let us talk about the event which related to the incident”;
“Okay let me just try to guide you”; “No, no, let us talk about what happened in your room … with the
minor child”; “No, no, talk about the incident”; “Talk about the incident”; “Talk about the incident”; “Just
a minute. What you are telling the Court is that on that particular evening you did not touch her?” ;
“Okay. Let us go to the next day” ; “No, no, just talk about the incident” ; “Talk about the inci dent” ; “Yes,
just go straight to the evening.”
36 No evidence was presented in this connection.
required to explain what evidence he would have given had Mr Shumi allowed him to
do so. This court would then consider whether, if that evidence had been led, there
was a reasonable possibility it would affect the outcome.
[41] That brings us to the appellant’s second complaint about his legal
representation: whether his legal representative put his version to the witnesses for
the prosecution .
[42] The basis for this claim does not emerge from direct evidence from the
appellant about what he told his attorney . Rather, the argument is implied from what
occurred during the appellant’s cross -examination.
[43] The prosecutor asked the appellant: “And you raised [ the complainant ] like as
if she was your daughter?” The appellant then responded:
‘…Since over three years old, but I was in custody prior to this in 2017. The
mother made a case against me for assault GBH and [ the mother ] made a
case that [ the complainant ] was also scratched by, by me. And I attended that
court in Parow 2 that is running from June 2016, 2017 till the 4th of December
2018 …’
[44] The Prosecutor then explored the details of this earlier case. It emerged that
(according to the Appellant) the compla int was very similar to the present one. The
mother had alleged that the appellant had sexually assaulted or raped the
complainant . Both the complainant and her mother testified at the trial and he was
found not guilty. He then went back to live with them. When asked why he went back
to live with them after the supposedly false accusation, the appellant said: “It was my
first time that I ended up in prison. I did not know. I spoke to her. She said she was
sorry. She said people instigated her.” When asked t o confirm that he still looked
after the compla inant despite the allegedly false complaint, the appellant said: “She
is a child ; she was told to tell this thing”.
[45] Later under cross -examination, the appellant testified that the complainant
would have falsel y implicated him in the rape because she was “more afraid of the
mother than I would say of myself … because the mother would if she is in a state
then she would threaten them.”
[46] This evidence, for the first time clearly alleged (and provided some
explanati on for why) the complainant and her mother might falsely implicate the
appellant. After eliciting it, the prosecutor asked if he “would agree that this what you
are telling me is actually, it is important information, right?” The appellant agreed.
The prosecutor went on: “[T]his changes your whole case what you are telling us
now, that the mother is actually the influence.” The appellant agreed and
emphasized that the complainant’s mother had influenced her to falsely implicate
him.
[47] The prosecutor then made the obvious point: That version was never put to
the complainant or her mother . The appellant trie d to blame his attorney, but is
interrupted so it is unclear from the transcript what he was trying to say. But he then
says: “It is the only problem is Mr Shumi had an open book with nothing written on it,
so how could he ask q uestions because we did consultation.” The prosecutor then
asked why he did not require Mr Shumi to ask the questions as he was present in
court and had been in court before. The appellant answered: “Ja, no, I agree with
you, but in that case, I had a lawy er who came to me and asked me is there any
questions you would like to ask that he did not ask. In this case , Mr Shumi did not
even look at me.”
[48] What can we make of all this? By the time he was cross -examined, it is clear
that the appellant’s defence was that the mother had influenced the complainant to
falsely accuse him of rape, that she had done it before, and that he had been found
not guilty. The problem was that this claim had not been put to either witness . As we
know, “Failure to put an accused's v ersion to a state witness will generally be taken
to mean that the accused accepts the version of the state witness.”37
[49] But the appellant, it appears, did not accept their version s. He says they were
intentionally falsely accusing him and had done the same on a prior occasion . Nor
37 S v Mafu and Others 2008 (2) SACR 653 (W) at para 12.
were any of the documents in the earlier case, in which he was supposedly acquitted
on similar charges brought by the same complainants, introduced in evi dence before
the trial court , or in this court .
[50] If the appellant gave the instructions, Mr Shumi had a duty to investigate the
records of that previous trial. If the records supported the appellant’s claims, and he
neglected to put his client’s version to the state’s witnesses, then (absent some
explanation from Mr Shumi) he had a duty to put that version to the state’s
witnesses. If that is what occurred, it was conduct falling below the ordinary standard
of what is required of an attorney representing an accused.
[51] There is also a reasonable possibility that, if the appellant’s version is true,
and had that version been put to the state’s witnesses, the outcome would have
been different. The complainant or her mother may have admitted that they
influenced to falsely accuse the appellant. Or there may have been similarities
between this case and the previous one that cast doubt on their credibility or the
state’s case. Although the medical evidence shows that CE was penetrated, it does
not identify the culp rit. The link to the appellant rested solely on the evidence of the
complainant and her mother .
[52] In Chabedi , in comparable circumstances, the Court held that the “lack of
essential and consequently proper cross -examination of the State witnesses resulted
in material parts of the State’s case being left untested. ” 38 It set aside the accused’s
conviction becaus e of this failure . It may be that the same occurred in this case.
[53] But before we can go down the route followed in Chabedi , we must ask
whether : (a) there was any foundation for the appellant’s claim about a previous trial ;
and (b), if so, whether the failure to put that version to the state witnesses was the
appellant’s fault or his attorney’s.
[54] It is impossible to answer either question on the evidence before us. We do
not know whether the prior trial in fact occurred, and whether the record of that trial
38 S v Chabedi 2004 (1) SACR 477 (W) at para 22.
would in fact have supported the appellant’s claim , or whether it was all a fabrication .
We do not have direct evidence from either the appellant, or Mr Shumi about how or
when they consulted, nor what was said during the consultat ions. We do not know
whether the appellant provided these instructions to Mr Shumi or not. If he did, we
do not know whether Mr Shumi did not put the version as part of an agreed strategy,
or through negligence. And we do not know whether the appellant was aware that
the version should have been put to the state witnesses, and, if he was, whether he
asked Mr Shumi to do so.
[55] What should the Court do in this evidential vacuum?
[56] First, we must say definitively that i t is not sufficient to defeat an inadequat e
assistance of counsel claim to say merely that the appellant was present in court and
should have prompted Mr Shumi to put his version to the witnesses. If the prior trial
occurred and the appellant gave the instructions to Mr Shumi, it was Mr Shumi’s du ty
to identify that it was relevant and put the appropriate questions to the witnesses. It
is not for a client to do his attorney’s job. As Claassen J explained in Mafu , the
“procedural duty” to put a client’s version to the state’s witnesses “constitutes a basic
and elementary forensic skill which has to be learnt and mastered by the most junior
of defending counsel. In fact, it is one of the first things taught in any course on trial
advocacy.”39
[57] But there are reasons to be skeptical of the appellant’s belated claim of
inadequate representation.
[57.1] When the charges were put to the appellant, he pleaded not guilty and
offered no plea explanation. The appellant confirmed this. In these
circumstances, one would have expected the appellant to have taken the
court into his confidence and explained that these charges against him
were fabricated and preferred against him because of some ulterior
motive. He elected to remain silent and adopt a ‘wait -and-see’ approach.
39 S v Mafu and Others 2008 (2) SACR 653 (W) at paras 12 and 14.
[57.2] Mr Shumi was replaced after conviction by a new attorney. He did not
ask for the proceedings to be re -opened so this new version of events
could be presented to the prosecution’s witnesses.40 If the appellant
believed Mr Shumi ha d failed to put vital evidence to the state witnesses,
surely he would have told his new attorney who would have taken the
appropriate steps . The appellant only complained about his legal
representation when the shoe pinched in cross -examination, and after
conviction and sentence, but never provided any substantive evidence to
support the complaint.
[58] Ultimately , because we do not know whether there is any truth to the
appellant’s claim, and we do not know why those claims were not put to the
witnesses, we cannot uphold the appeal.
[59] The bottom line is that the appellant has never positively averred that he did,
as a fact, inform his initial legal representative of the alleged motive to implicate him
falsely. The appellant had t hree opportunities to fill the evidential vacuum – when the
appeal was initially brought, when the matter was set down for re -argument before a
Full Court , and even after that hearing . In oral argument on both occasions , the
Court raised the absence of this evi dence. Despite these enquiries, no evidence that
would allow the Court to uphold the appeal was introduced. It was open to the
appellant, at any point, to seek to provide the evidence that could substantiate his
claim. 41 He has not done so.
[60] The appellant was legally represented before us . We have no evidence that
his current representation is inadequate or is not acting on his instructions . In these
circumstances, where the appellant has not put up evidence about either his alleged
previous acquit tal, or what instructions he gave to his attorney , he has not
established the requirements for a successful claim of inade quate representation of
counsel.
SENTENCE
40 It was open to the appellant to apply for the re -opening of his case. He did not do this.
41 This is permitted under s 19 (b) of the Superior Courts Act 10 of 2013.
[61] The appellant was charged with a contravention of the provisions of section 3
read with sections 1, 55, 56(1), 57, 58, 59, 60, 61 and 68 of the Criminal Law
Amendment Act (Sexual Offences and Related Matters), read with sections 256,
257, 261 and 281 of the Criminal Pr ocedure Act 51 of 1977. Sections 51 and
Schedule 2 Part 1 of the Criminal Law Amendment Act, 105 of 1997 and the
provisions of sections 92 (2) and 94 of the Criminal Procedure Act 51 of 1977 also
found application.42 The prescribed mini mum sentence was l ife imprisonment.
[62] The appellant’s circumstances at the time of sentencing were: (a) he was fifty-
two years old at the time when he was sentenced ; (b) he was held in custody
awaiting the finalization of his trial for about four years ; (c) he was married and lived
on the premises where the complainant resided ; (d) he is a qualified electrician; (e)
he lost his previous wife and children in an incident involving arson and, (f) his last
previous conviction dates back more than thirty years.
[63] The appellant submi ts that the cumulative effect of the factors listed above
should have been regarded as substantial and compelling sufficient to deviate from
the prescribed minimum sentence . It is a trite law that in sentencing, the punishment
should fit the crime and the offender, be fair to society and the offender, and be
blended with mercy.43
[64] An appeal court’s discretion to interfere with a sentence may be exercised
only: (a) when there has been an irregularity that fails justice; (b) or when the court a
quo misdi rected itself to such an extent that its decision on sentencing is vitiated, or
(c) when the sentence is so disproportionate or shocking that no reasonable court
could have imposed it . Crimes in general, but especially against women and
children, offend ag ainst the aspirations and ethos of all South Africans. Not only do
crimes against women in this country amount to a severe invasion of the dignity of
the victims, but these crimes do not contribute to our claims that we live in a gender -
42 Act No, 32 of 2007 .
43 S v Rabie 1975(4) 855 (AD) at 862 G.
equitable and just society. This crime perpetrated against a n eight -year-old child
renders it even more reprehensible.44
[65] The appellant was fifty-two years old when he was sentenced . Following
section 73(1)(b) of the Correctional Services Act,45 a person sentenced to life
imprisonment theoretically remains in prison for the rest of his or her natural life. Life
imprisonment, in practice, is regarded as a sentence of twenty -five (25) years of
imprisonment. In this connection, the parole provisio ns that may become relevant
and to the benefit of the appellant are indicated as follows:
‘… A person sentenced to life imprisonment may not be placed on parole until
he or she has served at least twenty -five (25) years of the sentence, but such
a prisoner may, on reaching the age of sixty -five (65) years, be placed on
parole after he has served at least fifteen (15) years of the sentence…’46
[66] After some anxious consideration, we find no redeeming factors to the
appellant's benefit in mitigating his sentence. We find only aggravating factors even
though the appellant has spent a significant period incarcerated as a pre -trial
prisoner. When an offender has been detain ed as an awai ting trial prisoner for an
extended period, this may be considered when an appropriate sentence is imposed.
This is not a substantive and compelling circumstance on a strict interpretation.
However, nothing prevents this court from considering the period that the offender
has been incarcerated, pending his or her trial, when imposing the appropriate
sentence. This does not apply mechanically through arithmetic calculation.47
[67] A court is expected to depart from the prescribed minimum sentence regime if
it can find and identify substantial and compelling circumstances to justify such a
departure to the appellant's benefit. In addition, it is obliged to remember that a
specified sentence has been prescribed by law as the sentence that should be
regarded as ordinarily appropriate in these circumstances. Deterrence and
44 The complainant was a soft target for the appellant.
45 Act 111 of 1998 (the “Act”)
46 Section 73(6)(b)(iv) of the Act.
47 The fact that the appellant was an awaiting trial prisoner does not automatically mean “tim e
served ”.
retribution often tend to steer the severity of the proposed sentence in a specific
direction. Rehabilitation, on the other hand, tends to pull the proposed sentence in
yet another direction.48
[68] In my view, focusing on rehabilitation, in this case, would lead to an unfair and
inappropriate sentence, which will be disproportionate to that deserved by the
appellant for the crime upon which he stands convicted.49
[69] This crime is an instan ce of gender -based violence, which has regrettably
reached pandemic proportions in our country. We believe an unambiguous
message must be sent to offenders participating in this criminal activity. That this
crime was committed against a n eight -year-old c hild requires that in considering the
issue of a sentence, the court must consider the provisions of section 28 of the
Constitution, namely the right of every child under section 28(1)(d), to be protected
from maltreatment, neglect, abuse or degradation, a right which the accused
egregiously infringed in this case.50
[70] In our view, the court of the first instance did give sufficient weight to the
appellant's circumstances and the issue of his possible rehabilitation. This we say
because the lower court di d not err when imposing the prescribed minimum
sentence of life imprisonment upon the appellant.51
[71] Also, the appellant did not show any remorse. Finally, the imposition of a life
sentence upon the appellant was not unjust and disproportionate, considering the
circumstances surrounding the commission of the offence.52
ORDER
[72] In conclusion, an order is issued in the following terms, namely that:
48 Deterrence is an important issue in this case.
49 The appellant showed no remorse whatsoever.
50 S v Myburgh 2007 (1) SACR 11 (W), at p age 15 at h.
51 This issue was considered thoroughly by the judicial officer in the court of first instance.
52 The complainant was a soft target and a very young girl.
1. The appeal against the appellant’s conviction s is dismissed.
2. The appellant’s convictio ns are confirmed.
3. The appeal on sentence is dismissed.
4. The sentence of life imprisonment is confirmed.
_______________ ________ ________
LE GRANGE, ADJP (as he then was)
________
WILLE, J
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BISHOP, AJ