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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number: A67/2024
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
DATE 2025 -03-06
SIGNATURE
In the matter between:
M[...] E[...] M[...] Appellant
and
THE STATE Respondent
This judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handin g down is deemed to be 6 March 2025.
JUDGMENT
POTTERILL J
Introduction
[1] The appellant was charged with rape1 of a minor 17 year old girl, his biological
daughter. The offence was committed in August 2016 and he pleaded guilty to the
charge on 29 August 2023 and was found guilty as charged. He was sentenced to
life imprisonment. The appellant is before us by virtue of his automatic right to
appeal his life sentence.
Appellant’s submissions
[2] It was submitted that the Magistrate paid lip service to substantial and
compelling circumstances by taking the position of an “armchair critic.” In doing so
the Magistrate erred in not taking into account the interest of the victim, the remorse
and personal circumstances of the appellant. This led to the Magistrate exercising
his discretion improperly and unreasonably which allows for this Court of Appeal to
interfere with the sentence.2
[3] As for the interests of the victim, t he victim had attempted to have the charges
withdrawn against the appellant but was unsuccessful. She had forgiven her father
and she and the child born from the rape were staying with her father as a family
unit. This was not a coerced situation as they were supporting the appellant; not
being financially reliant upon him.
[4] The court a quo erred in finding that the evidence of the DNA conclusively
linking the appellant as t he perpetrator of the crime negate d the remorse of the
appellant. Despite a strong case against him, he had expressed sincere remorse.
[5] The appellant was 42 years when he committed the crime and was a first
offender. He was sentenced at the age of 49 years old. He was married to the
mother of the victim and from this marriage four children were born that he supported
before he was arrested. He had passed grade 12 and from Vista obtained training in
motor mechanics from General Motors but was retrenched in 2017 when General
Motors closed operations in South Africa. He pleaded guilty.
1 Contravention of Section 3 read with sections 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the
Criminal Law Sexual Offences and Related Matters Amendment Act 31 of 2007 as amended. Further
read with sections 94, 256 and 261 of the Criminal Procedure Act 51 of 1977. Further read with
sections 51(1) or 51(2)(b) and Schedule 2 of the Criminal Law Amendment Act 105 of 1977 as
amended. Further read with section 120 of the Children’s Act 38 of 2005.
2 S v Pieters 1987 (3) SA 717 (A)
Submissions on behalf of the respondent
[6] The argument went that this Court cannot interfere with the sentence imposed
because the Magistrate exercised its discretion properly and judiciously and there
was no substantial and compelling circumstances to deviate from the sentence.
[7] It was submitted that the rape was a deliberate self -serving act to obtain
sexual gratification. In doing so the appellant abused his position or authority as the
father of the complainant and betrayed her trust. This prevalent crime of rape and
incest, “ has perverted the very bonds of love and trust that the family relation is
meant to nurture.”3
[8] The interest s of the victim support the sentence imposed because the factors
that the victim attempted to withdraw the charges and had forgiven the appellant are
neutral facts, not substantial and compelling facts.4 The incident had impacted on
the victim emotionally and the child born from the incest shares a father with his
mother. This will create a crisis for the child.
[9] As for remorse, the appellant did not voluntary admit to his guilt, only when he
was brought to book. He had no way to escape the truth being linked with the DNA.
The appellant did not take the Court into its confidence as to whether he had a true
appreciation of t he consequences of his actions; completely disrupting a family unit.
[10] The respondent’s argument thus concluded that the appeal against sentence
should be dismissed.
Decision on sentence
[11] This Court’s power to interfere with the trial court’s sentence imposed is
limited to where there is an irregularity that results in a failure of justice, the Court
misdirected itself, or the sentence is so shocking or disproportionate that no
reasonable court would have imposed such sentence.5
3 S v Abrahams 2002 (1) SACR 116 (SCA) at 23C
4 S v Matyityi 2011 (1) SACR 40 (SCA) par [13]
5 S v Bogaa rds 2013 (1) SACR 1 (CC) at [41]
[12] Furthermore, in S v Malgas 2001 (1) SACR 469 (SCA) par [25] the Supreme
Court of Appeal found that “Courts are required to approach the imposition of
sentence conscious that the l egislature has ordained life imprisonment … as the
sentence that should ordinarily and in the absence of weighty justi fication be
imposed for the lis ted crimes in the specified circumstances. Unless there are, and
can be seem to be, truly convincing reasons for a different response, the crimes in
question are therefore required to elicit a severe, standardised and c onsistent
response from the courts. The specified sentences are not to be departed from
lightly and for flimsy reasons.”
With these principles in mind the Court must entertain this appeal.
[13] Raping your minor daughter is a heinous crime in that it is the most
dehumanising violation a child can ever endure, let alone from her biological father.
From his plea explanation he became sexually aroused, he undressed her and
overpowered her despite his daughter’s attempts to fight him. From this horrific
incident a child is born who is going to have to work through how he was conceived
and how he fits in the family. It must also be remembered that only after the child
was born and the biologica l mother of the victim insisted to ascertain who the father
was did the victim reveal who the father was. The appellant did not come to his
senses during the incident, nor did he show remorse after the incident and confess it.
It was only when the state insisted on prosecution that he pleaded guilty.
[14] The interest of the victim was set out in the probation officer’s report. When
confronted with the incident again she became emotional and unable to talk audibly.
She stated she had cut herself off from that chapter and had to confront it again.
She was dreading the day that the child would ask about his identity and she did not
want to divulge this family secret. It was accepted that explaining this could “get
ugly”. The probation officer explained that although the victim did state that the she
forgave the appellant he has left her with the child’s identity as “a major problem.”
[15] The dread of trying to explain the unlawful and terrible way the child was
conceived and who his father is, negates any forgiveness the victim might have
expressed. She expressed forgiveness “for the sake of the family and especially her
siblings.” The interests of the victim does not render it to be a substantial and
compelling reason to deviate from the prescribed sentence.
[16] As for the personal circumstances of the appellant there is not a single factor,
or all the factors set out in paragraph [5] above, cumulatively, that can sustain
classification as substantial and compelling circumstances. The Magistrate thus
correctly did not deviate from the prescribed sentence on this basis.
[17] Despite various programmes from the Government and NGOs rape statistics
belie any success in curtailing rape. This is also true of the disturbingly increasing
phenomenon of sexual abuse within the family context. The public expects harsher
sentences to exact retribution and act as deterrence.
[18] I have dealt with the fact that the remorse only manifested after the state
persisted with the prosecution with proof of the DNA evidence to who the perpetrator
was. I can accept the appellant regretted his actions, but it did not manifest as
genuine remorse.
[19] I am satisfied that the sentence was individualised with the punishment fitting
the crime, the appellant and with careful consideration of all the factors relating to
this matter. There were no substantial and compelling circumstances and the court
a quo did not strive for severity or surrender to misplaced pity. The appeal against
sentence is dismissed.
S. POTTERILL
JUDGE OF THE HIGH COURT
I agree
M.P. MOTHA
JUDGE OF THE HIGH COURT
CASE NO: A67/2024
HEARD ON: 4 March 2025
FOR T HE APPELLANT: MR. S. MOENG
INSTRUCTED BY: Legal Aid Board
FOR THE RESPONDENT: Ms. E. Mafunisa
INSTRUCTED BY: Director of Public Prosecutions
DATE OF JUDGMENT: 6 March 2025