THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 266/2023
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS, LIMPOPO APPELLANT
and
JACOB KWINDA RESPONDENT

Neutral citation: DPP, Limpopo v Kwinda (266/2023) [20 24] ZASCA 175 (12
December 2024)
Coram: HUGHES, MABINDLA-BOQWANA and MEYER JJA
Heard: This appeal was, by consent between the parties, disposed of without an oral
hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email, publication on the Supreme Court of Appeal website, and
released to SAFLII. The date for hand down is deemed to be 12 December 2024 at
11h00.
Summary: Appeal in terms of s 311(1) of the Criminal Procedure Act 51 of 1977 (the
CPA) – whether the question raised is a question of law or fact – plea of guilty under s
112(2) of the CPA – where all the elements of an offence are admitted in a written
plea of guilty an accused may be convicted accordingly on the basis of the plea – the
respondent admitted having had sexual intercourse with two eight-year-old
complainants – sentence of life imprisonment improperly set aside by the high court

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primarily based on lack of evidence of both complainants’ ages – appeal by the
National Director of Prosecution on a point of law upheld.

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ORDER
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On appeal from: Limpopo Division of the High Court , Polokwane (Kganyago J and
Naude AJ) sitting as a full court of appeal:
(1) The appeal is upheld.
(2) The order of the high court is set aside and substituted with the following:
‘(a) The appeal is dismissed.
(b) The conviction and sentence of the trial court are confirmed.’
(3) The sentence is antedated to 21 November 2017.

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JUDGMENT
___________________________________________________________________
Hughes JA (Mabindla-Boqwana and Meyer JJA concurring)

[1] Jacob Kwinda (the respondent) was convicted in the Regional Court, Modimolle
(the regional court) , for two counts of rape of two eight-year-old girls. Th us, a
contravention of s 3 of the Criminal Law: Sexual Offences and Related Matters
Amendment Act 32 of 2007 (SORMA Amendment Act), applying s 51(1) read with Part
1 of Schedule 2 of the Criminal La w Amendment Act 105 of 1997(CLAA). On 21
November 2017, the respondent was sentenced to life imprisonment for each count.
In terms of s 309(1)(a) of the Criminal Procedure Act 51 of 1977 (CPA), as amended,
he had an automatic right of appeal to the Limpopo Division of the High Court,
Polokwane (the high court).

[2] The respondent , 59 years of age , legally represented, pleaded guilty to two
counts of rape. The details of the offences he committed were set out in his guilty plea.
Briefly, they are that the respondent was at one of the ‘spaza shops’ in Rooiberg,

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buying bread when he met the two complainants and instructed them to accompany
him to his home. At his home h e pulled out a revolver and ordered them to un dress.
He pulled down their panties, used Vaseline to lubricate their vaginas, and inserted his
penis into their vaginas, one after the other, without their consent.

[3] Set out below is the relevant portion of the respondent’s written guilty plea:
‘I admit that on the 25th of October 2015 at Rooiberg in the Regional Division of Limpopo, I did
unlawfully and intentionally commit an act of sexual penetration with a female person sic to wit,
[SM], 8-year-old by inserting my penis into her vagina without her consen t …. After having
sexual intercourse with [SM] I then ordered [BS], an 8-year-old, … and I inserted my penis into
her vagina and had sexual intercourse with her, without her consent. I admit that I had sexual
intercourse with both complainants without their consent and further admit that my actions
were wrongful and punishable by law, [and] I have no justification for my actions. I therefore
plead guilty to two counts of rape as charged.’

[4] The state accepted the guilty plea. The regional court was satisfied that the
respondent had pleaded guilty to all the elements of the offences and b efore
pronouncing on the conviction, stated that:
‘The admission that the accused had made are very clear that he did pene trate the two
complainants … Furthermore, the accused also admits to the fact that … [the complainants]
with whom he had sexual intercourse, [are] 8 years old. It is clear that the two complainants
could not have consented to sexual intercourse because of their age … The court is satisfied
that the accused admit[s] all the elements of the offence of rape in both counts.’
The regional court duly convicted the respondent of the two counts of rape.

[5] Prior to sentencing , the respondent ’s representative request ed that the pre-

[5] Prior to sentencing , the respondent ’s representative request ed that the pre-
sentencing report, victim impact report and a probation officer ’s report, be obtained.
From these reports, it emerged that the complainants knew the respondent as he was
a neighbour. The social worker, instructed to compile the victim impact report, Ms Unity
Kopano Motlatla (Ms Motlatla), testified as follows in relation to the respondent, ‘he
was further described as a trusted person and when he comes back from work the
children in his neighbourhood would run to him, knowing that he is going to give them
bread.’ She further testified that the complainants reported to her that [the respondent]
told the complainants not to report him, but both responded that they would. To this,
he reacted by laughing at them and saying, ‘no such thing will happen because he is

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a very well-known man.’ The regional court acknowledged in sentencing that the
complainants knew the respondent well and trusted him, and he abused their trust.

[6] Dr Anatroekal Hlaywani Lamola, a medical practitioner, completed two J88
forms regarding each complainant, which records the maturity and the injuries
sustained by both the complainants. The regional court enquired from the respondent
whether he understood the contents of the reports duly interpreted to him, and he
responded in the affirmative. This was further confirmed by the legal representative of
the respondent and thus the J88 forms were admitted into evidence.

[7] The regional court stated that ‘[t]he accused knew the children very well and he
knew they trusted him very well, but he abused the trust that the children had in him.
Children are vulnerable to abuse and the younger they are the more vulnerable they
are. They are usually abused by those who think they can get away with it and all often
do.’ The regional court considered the mitigating and aggravating factors, the interests
of society and the interest of the complainants and concluded that the re were no
substantial and compelling factors to deviate from the imposition of the minimum
prescribed sentence of life imprisonment.

[8] On appeal in the high court, the respondent abandoned his appeal against his
conviction and only pursued the appeal against his sentence. The high court upheld
his appeal primarily on the basis that the State had not proven the age of the
complainants and set aside the sentence imposed by the regional court, by replacing
it with the following: On both counts 1 and 2, a sentence of eight years’ imprisonment
was imposed for each count and half of the sentence imposed in respect of count 2
was to run concurrently with the sentence in respect of count 1. Cumulatively, the
respondent was to serve an effective sentence of 12 years’ imprisonment. Dissatisfied

respondent was to serve an effective sentence of 12 years’ imprisonment. Dissatisfied
with the reduction of the sentence of life imprisonment, the State launched an appeal
to this Court, on a point of law, in terms of s 311 of the CPA.

[9] In terms of s 311 of the CPA, the State has an automatic right of appeal where
the appeal is from the high court and that court sitting as a court of appeal determined
the appeal in favour of the convicted person on a question of law. The respondent
submitted that the question in this appeal is not a question of law but a question of fact.

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That being, the age of the two complainants, which is a requirement of the offence, the
respondent was charged with, and duly admitted to in his s 112(2) plea statement. In
the circumstances proposed by the respondent, this Court will not entertain an appeal
by the State, if it is not persuaded, that the grounds of appeal advanced, do not involve
a question of law.

[10] In this Court, the State submitted that the question of law is:
‘Where the accused pleads guilty to a charge of rape of a girl under 16 years as envisaged in
section 51(1) of the Criminal Law Amendment Act 105 of 1997 and tenders a statement in
terms of section 112(2) of the Criminal Procedure Act 51 of 1977 in which he admits the victim
was below 16 years at the time of the commission of the offence, would the State be required
to prove the victim’s age despite the accused’s admission?

When [an] accused pleads guilty in terms of section 112(2) of the Criminal Procedure Act and
makes admission[s] in the statement regarding the age of the complainant, in a matter where
the age of the complainant is a prerequisite for the offence, does such admission absolve the
State of its duty to prove the age of the complainant?’

[11] The high court concluded that the State had failed to prove the ages of the
complainants, which was a ‘vital element in the determination by the trial court whether
a prescribed minimum sentence has to be imposed. It establishes jurisdictional facts.’
Significantly, the high court appreciated the import of the ages of the complainants
having a jurisdictional effect on the prescribed sentence to be imposed. In addition, the
high court found that there were substantial and co mpelling circumstances that the
regional court did not consider, that being, the time served by the respondent of 21
months and the advanced age of the respondent.

[12] The State contends that the high court erred in finding that the y had to prove

[12] The State contends that the high court erred in finding that the y had to prove
the ages of the complainants even though the respondent had admitted this in his guilty
plea statement. Therein, the respondent admitted having sexual intercourse with the
complainants who were under the age of 16 years, it is such admission that ‘dispensed
with the need for proof in regard to the victim’s ages.’ Thus, the high court erred in law,
so argues the State.

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[13] The respondent’s representative submits in his heads of argument that there is
no question of law to be determined in terms of s 311 of the CPA in this matter. The
reasoning for this position is that the respondent’s representative views the reliance of
the high court’s finding, that the State failed to prove the ages of the complainants, as
being ‘a question of fact.’

[14] That the complainants are minors under the age of 16 years old clearly brings
the offences for which the respondent is convicted, within the purview of the prescribed
minimum sentence of life imprisonment. Their ages were specifically mentioned by the
respondent in his admission statement. The conduct of the respondent in these
circumstances and the respondent’s criminal liability invokes the law applicable and,
as set out in Part 1 Schedule 2 of the CLAA. This amounts to the legal basis upon
which the minimum sentence may be imposed, as referenced in S v Malgas.1

[15] The high court did not appreciate that there was no need to lead evidence of an
admitted fact in terms of s 112(2) of the CPA. The State argues that the high court
made an erroneous interpretation of the law . On the other hand, t he respondent
submits that the age of the complainants is disguised as a question of law , when in
fact it is a question of fact. Without a doubt, the question raised by the State does not
deal with the nature of the sentence, which is trite that it then could never amount to a
question of law in favour of the convicted respondent, as enunciated in Director of
Public Prosecutions, Gauteng v MG 2, but an incorrect interpretation of what the import
of a written statement in terms of s 112(2), an admission of the age of the complainants,
where age is an essential element for the offence committed. As such, this places the
matter within the purview of s 311 of the CPA.

[16] There is sound jurisprudence that the nature of a sentence imposed could never

[16] There is sound jurisprudence that the nature of a sentence imposed could never
be a question of law in favour of the convicted respondent, as enunciated in MG.3 In
this case the respondent sought to advance that the import of a written statement in
terms of s 112 (2), wherein an admission of the age of the complainant is made, where
age is an essential element for the offence, could never amount to a question of law

1 S v Malgas 2001 SACR 496 (SCA), 2001 3 All SA 220 (A).
2 Director of Public Prosecutions, Gauteng v MG 2017 (2) SACR 132 (SCA) at para 28.
3 Ibid paras 24 - 29.

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incorrectly interpretation, despite the provisions of s 57(1) of the Sexual Offences Act.
This in my view places this case squarely within the preview of s 311 of the CPA.

[17] As already mentioned above, the question of law crisply is whether an accused
person who pleads guilty in terms of s 112(2) of the CPA and makes an admission in
the statement regarding the age of the complainants , where age is an essential
requisite for the offence so charged, absolves the State of its duty to prove the age of
the complainants?

[18] In the normal course of a criminal trial, the State has the duty to present
evidence to prove the commission of the offence that an accused is charged with .
However, s112(2) of the CPA provides that:
‘If an accused or his legal advisor hands a written statement by the accused into court, in which
the accused sets out the facts which he admits and on which he has pleaded guilty, the court
may, in lieu of questioning the accused under subsection (1)( b), convict the accused on the
strength of such statement and sentence him as provided in the said subsection if the court is
satisfied that the accused is guilty of the offence to which he has pleaded guilty: Provided that
the court may in its discretion put any question to the accused in order to clari fy any matter
raised in the statement.’

[19] This Court in Director of Public Prosecutions: Gauteng Division, Pretoria v
Hamisi4, stated:
‘The contention by the respondent that evidence of the complainant’s age should have been
led in the circumstances finds no support in law. This element of the offence with which the
respondent was charged was admitted together with the other elements of that offence.’5

[20] Hamisi was correctly decided. It binds this Court and the reasoning upon which
the decision is based is clearly not erroneous. In Director of Public Prosecutions:
Gauteng Division, Pretoria v Buthelezi, 6 the purpose of the principle of stare decisis
was expounded:

was expounded:

4 Director of Public Prosecutions: Gauteng Division, Pretoria v Hamisi [2018] ZASCA 61; 2018 (2)
SACR 230 (SCA) (Hamisi).
5 Ibid para 10.
6 Director of Public Prosecutions: Gauteng Division, Pretoria v Buthelezi [2019] ZASCA 170; 2020 (2)
SACR 113 (SCA).

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‘The object of the doctrine of stare decisis is to avoid uncertain ty and confusion and ensure
uniformity in the treatment of cases raising similar factual and legal issues . It serves to lend
certainty to the law.’ 7

[21] The appeal bef ore the high court and this Court pertains to the sentence
imposed. In terms of s 51(1) of the CLAA the regional court and the high court have
jurisdiction to sentence a person convicted of an offence in Part 1 of Schedule 2 to life
imprisonment, unless there are substantial and compelling factors to deviate from the
prescribed sentence. This matter involves the rape of complainants who are eight
years old and, as such, these offences fall under Part 1 of Schedule 2.

[22] Pertinently in this matter, the respondent admitted the age of the complainants
in his guilty plea. This was accepted by the State and, as such, this formed the factual
matrix upon which the respondent was convicted and sentenced. The regional court
was satisfied that it may convict the respondent accordingly. It is settled law that an
accused person may be convicted based on the admissions made in his or her s 112(2)
plea.8

[23] Turning to the sentence imposed by the high court. In terms of s 57(1) of the
SORMA Amendment Act read with Part 1 of Schedule 2 of CLAA , the sentence
prescribed for a sexual offence committed to a child under the age of 12 years is life
imprisonment. The high court sitting as a court of appeal wa s wrong and misdirected
itself when it approached the sentence imposed by the trial court, by merely replacing
the sentence imposed and preferring a sentence it would have imposed as the trial
court.9 As a result thereof, this Court must interfere with the sentence imposed by the
high court.10

[24] I cannot find any substantial and compelling circumstances justifying the
imposition of a lesser sentence than the prescribed sentence of life imprisonment. This
is informed by the following : the complainants were minor children of eight years of

is informed by the following : the complainants were minor children of eight years of

7 Ibid para 9.
8 Hamisi para 8,9 and 10.
9 Malgas at 478D.
10 Ibid para 478G-H.

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age. They trusted the respondent , knew him well, and he abused their tru st. H e
threatened them with a revolver and warned them not to tell others of the rape. From
the J88 it is clearly reflected that the complainants were injured by the because of this
gruesome act.

[25] The fact t hat the respondent was at an advanced age, does not in my mind
mitigate his case against a prescribed sentence, in fact, it aggravates it. The evidence
shows that the community that the respondent and the complainants live d in, was a
small community and they are close neighbours. The respondent was well known and
respected in that community. He was, prior to the rapes, perceived not to be a threat
to that community. He abused his position and exploited the complainants, who trusted
him, by sexually violating them. The ordeal traumatised the complainants to an extent
that one complainant no longer goes to school and both complainants are being
referred to by their peers, individually, as the ‘raped child’. I therefore conclude that the
regional court was correct that there was no reason to depart from the prescribed
minimum sentence of life imprisonment. The sentence imposed by the high court must
be set aside and that which imposed by the regional court reinstated.

[26] In the result the following order is made:
(1) The appeal is upheld.
(2) The order of the high court is set aside and substituted with the following:
‘(a) The appeal is dismissed.
(b) The conviction and sentence of the trial court are confirmed.’
(3) The sentence is antedated to 21 November 2017.



___________________
W HUGHES
JUDGE OF APPEAL

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WRITTEN SUBMSISSIONS

For the Appellant: Heads of argument prepared by M Sebelebele
Instructed by: Director of Public Prosecutions, Limpopo
Director of Public Prosecutions, Bloemfontein

For the Respondent: Heads of argument prepared by L M Manzini
Instructed by: Legal Aid, Polokwane
Legal Aid, Bloemfontein.