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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A195/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE : 20/03/2025
SIGNATURE
In the matter between:
V[...] I[...] S[...] Appellant
and
THE STATE Respondent
JUDGMENT
DOMINGO, AJ (with MILLAR, J )
Introduction
[1] This is an appeal against the sentence imposed upon the appellant on a charge
of two counts of rape and sexual assault in the Pretoria Regional Court on the
11 June 2024.
[2] The appellant pleaded not guilty to the charges of rape and sexual assault and
the matter proceeded to trial.
[3] On the evidence before the court a quo, the court a quo found the appellant
guilty on the charges levelled against him. On the 14 August 2023 the appellant
was convicted of two counts of rape, read with section 52 and Part I of
Schedule 2 of the Criminal Amendment Act 105 of 199 7, and sexual assault in
the Pretoria Regional Court.
[4] On 11 June 2024 the appellant was sentenced to life imprisonment on each
count of rape and five years imprisonment for the sexual assault.
[5] In terms of the provisions of section 309(1)(a) of the Criminal Procedure Act as
amended by the provisions of section 10 of the Judicial Matters Amendment
Act, Act 42 of 2023 the appellant is entitled to an automatic right of appeal once
the court a quo has imposed a sentence of life imprisonment.
[6] This appeal is only in respect of sentence.
Summary of facts
[7] The appellant was convicted of two counts of rape and one o f sexual assault.
The complainant testified that the appellant was her stepfather, and he resided
with them in the same house. The offences took place at night when the
complainant’s mother was working and slept over at work. The appellant would
come into the complainant’s room and move her little brother from the bed and
proceed to have sexual intercourse with her without her consent. At the time of
these offences the complainant was aged 11 to 13 years old. She wrote down
the encounters she had with the appellant in her diary, which was later
discovered by her mother who read through the contents. The complainant’s
mother confronted her about her written diary entries detailing her encounters
with the appellant. Charges were brought against the appellant, and he was
arrested.
Substantial and compelling circumstances
[8] The appeal against the sentence is brought on the basis that the court a quo
misdirected itself in finding that there are no substantial and compelling
circumstances to deviate from life imprisonment and further that the imposed
sentence is shockingly inappropriate and induces a sense of shock.
[9] It is trite law that sentencing falls within the discretion of a trial court, and that
the Court of Appeal’s right to interfere with a sentence is limited to instances
where the court a quo material ly misdirects itself or comm its a serious
irregularity in evaluating all the relevant factors with regard to sentence. In S v
Rabie1 in regard to appeals against sentence it was held:
“1. In every appeal against sentence, whether imposed by a magistrate or
a Judge, the court hearing the appeal –
(a) should be guided by the principle that punishment is “pre -
emin ently a matter for the discretion of the trial Court ;” and
(b) should be careful not to erode such discretion: hence the
further principle that the sentence should only be altered if
the discretion has not been “judicially and property
exercised .”
2. The test under (b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.”
[10] Sentencing is about achieving the right balance between the crime, the
offender and the interest of the community.2 It is about arriving at a judicious
counterbalance between these three elements when determining the sentence,
in order to ensure that one element is not unduly accentuated at the expense of
and to the exclusion of others.3
[11] In the present matter the appellant, broadly contends that the sentencing court
erred in finding that the cumulative effect of the below mentioned factors d id not
constitute substantial and compelling circumstances :
11.1 The appellant is a first -time offender .
11.2 The appellant was taking care of the complainant and her family .
1 1975 (4) SA 855 (A) at para 857D -E.
2 S v Zinn 1969 (2) SA 537 (A) SCA at 540G -H.
3 S v Banda 1991 (2) SA 352 (BG) at 355A.
11.3 That the offence in question did not fall within the worst category of
offences where a victim is severely assaulted and suffer s serious injuries
whereby serious medical attention is required or the victim had to undergo
an operation to mend the damages .
11.4 The complainant was not assaulted/and or did no t suffer serious physical
injuries during the commission of the offence. There is no evidence that
she was infected with any sexually transmitted disease.
11.5 It is submitted that in the matter of S v Nkomo4 it was found that there is
hardly a person whom it can be said that there is no prospect of
rehabilitation.
11.6 The length o f the period the appellant spent in custody awaiting the
finalisation of the trial. He was arrested on 1 January 2019 and was held in
custody until sentencing on 11 June 2024 . In total the time spent in
custody prior to the finalisation of the trial was approximately 5 years and 4
months .
12 In the present matter , life imprisonment is the prescribed minimum sentence for
the rape of a person more than onc e and for the rape of a person under the age
of 16 years . Section 51(1) of the Criminal Law Amendment Act, Act 105 of 1997
is peremptory, and gives no discretion to a court to deviate therefrom in the
absence of substantial and compelling circumstances indicating that a lesser
sentence is justified .5
13 In S v Ma lagas6 the court provided the following guidelines in determining
whether substantial and compelling circumstances exist to justify the departure
from the prescribed sentence :
13.1 Courts are required to approach the imposition of sentence conscious that
the legislature has ordained life imprisonment as the sentence that should
ordinarily and in the absence of weighty justification be imposed for certain
crimes.
4 2007 (2) SACR 198 (SCA) .
5 See section 51(3) of the Criminal Law Amendment Act, Act 105 of 1997.
6 2001 (1) SACR 469 at para 25.
13.2 Unless there are, and can be seen to be, truly convincing reasons for a
different response, the crimes in question are therefore required to elicit a
severe, standardised and consistent response from the courts.
13.3 The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation, and marginal differences in
personal circumstances or degrees of participation between co -offenders
are to be excluded .
13.4 The ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite yardstick (“substantial and
compelling”) and must be such as would cumulatively justify a departure
from the standardised response that the legislature ordained.
14 The appellant being a first offender and taking care of the complain ant and her
family as well as the appellant’s personal circumstance s, as set out in the pre -
sentence report which forms part of the record reveal nothing substantial and
compelling that would just ify a departure from the sentence imposed.
15 The aggravating factors in this case far overshadow any mitigating factors
presented by the appellant’s circumstances . The appellant was a father figure to
the complainant. He was in a position of authority and command over the
complainant. The complainant was left in his care by her mother, and he
calculatingly sexually abused her and raped her more than once when her
mother was at work . He threatened her with death if she told on him and
threatened that if she did report him, he would kill her mother. The complainant
was only 11 to 13 years old at the time she was exposed to the appellant ’s
deviant sexual behaviour.
16 The appellant has not shown any remorse and has not acknowledged the
seriousness of his offences. He has persisted in his denial of the commission of
the rapes and sexual assault therefore in my view the prospects of rehabilitation
are substantially diminished.
17 It is evident from the record of the proceedings that the complainant was
extremely emotional during her testimony , and it can also be gleaned from the
Victim Impact Report that the complainant suffered emotional and psychological
trauma because of the rapes.
18 The crimes for which the appellant was convicted and sentenced are of an
extremely serious and egre gious nature. I t was argued on behalf of the
appellant that the absence of physical injury and the absence of evidence of any
sexually transmitted disease (s) should be factors to be included in “substantial
and compelling circumstances.” Section 51(3)( a)(A) of the Criminal Law
Amendment Act 105 of 1997 clearly precludes reliance on precisely such
absence of injury as substantial and compelling circumstances.7 The Act clearly
states that when imposing a sentence in respect of the offence of rape an
apparent lack of physical injury to the complainant shall not constitute
substantial and compelling circumstances justifying the imposition of a lesser
sentence.
19 Furthermore, in Marx v S8 it was stated:
“[T]he phenomenon of domestic predation…require s like any other crime
special understanding, appropriate to its distinct characteristics. The domestic
or familial predator’s means are not violent…he exploits the opportunities that
intimate engagement offers, and the physical spaces the home affords, to pry
upon his victim. He uses the ties that bind him to her -often both emotional and
material -to secure both compliance and concealment. When the victim is less
than half his age…and subject to his influence and authority as an elder, these
factors operate with acute force…her pecu liar susceptibility to abuse and
exploitation must be appreciated. ”
20 It is submitted by the appellant that the period of approximately 5 years and 4
months, which he spent in custody prior to the finalisation of the trial should
have been factored into his sentence as a substantial and compelling
7 See Khumalo v S (A146/2022) [2024] ZA GPPHC323 (2 April 2024) at para 43.
8 [2005] 4 AII SA 267 .
circumstance. This is advanced by the appellant using the case of S v Rabe9
where it was held that there is no rule of thumb for accounting for time spent
awaiting trial and that the circumstances of an individual accused must be
assessed in each case in determining the extent to which the sentence
proposed should be reduced.
21 It is further advanced by the appellant that in S v Solomon and Others10 the
following was held regarding the Radebe11 case :
“I do not read Radebe as holding that pre-sentencing detention can never on its
own be a substantial and compelling circumstance justifying departure from a
prescribed minimum sentence.”
22 The appellant submits that the delay in the finalisation of the trial was not due to
his doing , but due to the slow pace of the investigation , time it took to get the
matter on the roll of the court and the COVID -19 pandemic.
23 The COVID -19 pandemic in my view is a neutral factor in the delay of the
finalisation of the trial as the entire world was affected by the COVID -19
pandemic and its resultant consequences .
24 From the record there is no evidence that either the appellant or the respondent
caused the delay in the finalisation of the trial. The record does reflect that the
appellant underwent a psychiatric evaluation which may also have contributed to
a delay , however, this delay did not unreasonabl y prejudice the appellant as
there were no complaints forthcoming from him.
25 In the case of Radebe12 the court stated:
“[I]n determining whethe r…substantial and compelling circumstances warrant a
lesser sentence than that prescribed…, the test is not whether on its own that
period of detention constitutes a substantial and compelling circumstance , but
whether the effective sentence proposed is proportionate to the crime or crimes
9 2013 (2) SACR 165 (SCA) at para 13.
10 2021 (1) SACR 533 (WCC) at para 25.
11 Supra note 9 above.
12 Supra note 9 above at 13 and 14.
committed: whether the sentence in all the circumstances, including the period
spent in detention prior to conviction, is a just one .”
26 In so far as the court a quo did not consider th e factor of the pre-sentencing
period in detention , or did consider the factor but did not regard it as substantial
and compelling , the court a quo did not misdirect itself.
27 It may be viewed by some as unfortunate that the appellant spent an inordinate
amount of time in custody pending the finalisation of the trial . However, having
considered the matter , I am of the view that a sentence of life imprisonment is
proportionate to the crime committed and the sentence is a just one.
28 Given the serious nature of the offence s and the aggravating circumstances
under which the offences w ere committed the sentence of two counts life
imprisonment for rape and 5 years imprisonment for sexual assault is just and
cannot be said to be disturbingly inappropriate.
29 Having considered the evidence adduced during the trial and the court a quo ’s
judgment in relation to wheth er the appellant ought to be convicted on the
charges, there is nothing on the record that would justify a departure from the
prescribed minimum sentence of life imprisonment.
30 In the absence of any irregularity or misdirection of the court a quo , I am
satisfied that the appeal against sentence stands to be dismissed.
Order
31 In the result, I propo se that the following order is made :
31.1.1.1 The appeal against the sentence s in counts 1, 2 and 3 is
dismissed.
W DOMINGO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
A MILLAR
JUDGE OF THE H IGH COURT
PRETORIA
I agree and it is so ordered.
Date of hearing: 18 March 2025
Date of judgment: 20 March 2025
FOR THE APPELLANT : MISS MMP MASET E
PRETORIA JUSTICE CENTRE ,
instructed by legal aid board
FOR THE RESPONDENT: ADVOCATE K GERMISHUIS ,
instructed by the Director of Public
Prosecution
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