SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(Gauteng Division , Pretoria )
Case no : A7/2024
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED.
DATE: 20 March 2025
SIGNATURE
Judgment Reserved: 11 March 2025
Judgment handed down: 20 March 2025
In the matter between :
SIBUSISO RICHARD MORAPEDI APPELLANT
AND
THE STATE RESPONDENT
________________________________ ___________________ ______ ____ ________
JUDGMENT
STRIJDOM , J
1. On 7 August 2022 the appellant appeared in the Springs Regional Court on two
counts of r ape of a minor child read with the provisions of section 51(1) of Act
105 of 1997. The appellant had legal representation and pleaded not guilty to
both charges.1
1 Record: p1 line 11 to p 3 line 8
2. The appellant was subsequently convicted on both charges and on 23 October
2023 he was sentenced to life imprisonment on both counts. It was ordered that
the sentences must run concurrently in terms of section 280 (2) of the Criminal
Procedure Act.2
3. On 6 November 2023 the appellant filed a notice of appeal in relation to sentence
only.
4. As the appellant was sentenced to life imprisonment in the Regional Court, he
has an “automatic right” to appeal to the High Court on notice being given.
5. The complainant is Q[...] M[...] who was eight years old at the time of the
offences. On 6 August 2022 Mr . Shongwe, a nurse at Far East Rand Hospital
examined her and found that her hymen was irregular, and she also had bumps
and clefs. On 15 August 2022 the child was examined by Dr Mgudloa, who
found on gynaecological examination that her clitoris, urethral and labia minora
had bruises. The doctor also found that she had fresh tears, bumps and clefts.
The complainant was sexually penetrated seven times by the appellant while on
parole.
6. The following mitigating circumstances were placed on record by the legal
representative of the appellant.
6.1 He was 37 years old at the time of sentencing;
6.2 He is unmarried but has a minor child aged one year and 11 months.
6.3 His highest scholastic qualification is standard 8 (grade 10).
6.4 He was employed at a construction business where he earned R1 300-00
per month.
2 Record: p 319 line 6 -10
6.5 He has no previous convictions for sexually related offences and should
be considered as a first offender.
6.6 The C ourt must take into consideration the interest of the appellant’s
minor chi ld.
7. The following aggravating circumstances were placed on record by the State:
7.1 The victim was only eight years old at the time of the offences ;
7.2 The appellant show ed no remorse;
7.3 The victim suffered physical pain, emotional and psychological pain.3
7.4 The victim was sexually penetrated seven times.
7.5 The victim was raped twice whilst the appellant was released on parole.
7.6 The appellant have four previous convictions of robbery, two of
housebreaking with intent to steal and theft and two previous convictions
of theft. He was released on parole in 2020.
8. The following factors were taken into account during sentence by the trial
Magistrate:
8.1 The Court was mindful of the foundational sentencing principles that the
punishment should fit the criminal as well as the crime, be fair to society
and be blended with a measure of mercy.
8.2 That the main purpose of sentencing is retribution, deterrence, prevention
and rehabilitation.
8.3 The personal circumstances of the appellant.
8.4 The Court properly considered the Victim Impact Report and indicated the
trauma the victim experienced.
8.5 The Court considered the interest of the appellant’s child.
8.6 The Court considered the gravity of the offences.
8.7 The Court considered the legislation applicable and stipulated that the
Court can only deviate from the minimum prescribed sentence if there are
3 Medico -Legal Examination , Exhibit “E” Record p330: Victim Impact Statement Exhibit “F” Record p366
substantial and compelling circumstances which will justify a lesser
sentence.
9. The appellant alleges that the Court erred on the following issue:
9.1 That there were no substantial and compelling circumstances justifying the
imposition of a lesser sentence than life imprisonment.
10. The Court in State v Motau 4 indicated that it is trite that the imposition of
sentence is pre -eminently for the discretion of the trial Court. A Court of appeal
will only interfere in the sentence where the trial Court has failed to exercise its
discretion judicially or where the sentence is vitiated by irregularity or is
disturbingly inappropriate.
11. In my view, the trial Court’s approach to sentence, as is evident from the
judgment, cannot be faulted and there is no basis for interference with the
imposed sentences.
12. The Supreme Court of Appeal made it very clear in S v Matyityi 5 that the
prescribed minimum sentences are not to be departed from lightly. The Court
held on 53F : “Courts are not free to subvert the will of the legislature by resort to
vague ill -defined concepts such as “relative youthfulness” or other equally vague
and ill -founded hypotheses that appear to fit the particular sentencing officer’s
personal notion of fairness. Predictable outcomes, not outcomes based on the
whim of an individual judicial officer, are foundational to the rule of law which lies
at the heart of our constitutional order .”
13. The Court a quo in my view was correct in the assessment of the factors in
mitigation and aggravation of sentence to find no substantial and compelling
circumstances to justify a deviation from the mandated sentence. For these
4 (A53/2023
5 S v Maty(2010) ZA SCA 127 2011 (1) SACR 40 SCA
offences the prescribed minimum sentences is the benchmark and should
ordinarily be imposed in the absence of substantial and compelling
circumstances which justifies the imposition of lesser terms of imprisonment than
that provided for in section 51(1) of the CLAA.6
14. I conclude that the trial Court exercised its sentencing discretion judicially and
there is no basis at all for interference with the imposed sentences.
15. In the result, the appeal is dismissed.
JJ STRIJDOM
JUDGE OF THE HIGH COURT OF
SOUTH -AFRICA , GAUTENG DIVISION,
PRETORIA
I agree and it is so ordered .
MAZIBUKO AJ
ACTING JUDGE OF THE HIGH COURT
OF SOUTH -AFRICA, GAUTENG
DIVISION, PRETORIA
APPEARANCES:
For the appellant : Adv Botha
Instructed by: Legal Aid SA
For the respondent : Adv M Masilo
Instructed by: Office of the Director of Public Prosecutions
6 See S v Malgas 2001 (1) SACR 469 (SCA)