Page 11 of 11 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A190/2024
(1) REPORTABLE:NO
(2) OF INTREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
24-03-2025
In the matter between:
E[…] M[…] M[…] APPELLANT
And
THE STATE RESPONDENT
Delivered : This judgment was prepared and authore d by the Judges whose
names are reflected herein and is handed down e lectro nically 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 hand -down is deemed
to be 24 March 2025.
JUDGMENT
PHAHLANE, J
Page 11 of 11 The appellant who was legally represented during trial proceedings was
convicted by the regional court, Benoni on one count of rape in contravention
of section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007, read with the provisions of section 51(1) of Act
105 of 1997 ( "the CLAA''). He pleaded guilty in terms of section 112(2) of the
Criminal Procedure Act 51 of 1977 ("CPA") and was convicted on the
strength of his plea and sentenced to life imprisonment on 23 March 2023.
[1] Section 51(1) of the CLAA provides that a person who has been
convicted of an offence referred to in Part I of Schedule 2 of the Act shall be
sentenced to imprisonment for life unless there exist substantial and
compelling circumstances justifying a lesser sentence. Part I of Schedule 2 in
turn refers to rape as contemplated in s 3 of the Act where, inter alia, the
victim is a person under the age of 16 years. The victim in this case was a
14- year-old-girl.
[2] The grounds of appeal as noted in the notice of appeal are as follows:
3.1 "The effective term of life imprisonment is strikingly shocking
and inappropriate.
3.2 The court erred in finding that there are no substantial
and compelling circumstances where the mitigating factors placed
before the court were that:
a) The appellant has pleaded guilty to the offence.
b) The appellant has been in custody awaiting finalization of his
matter
c) The appellant is a first offender.
3.3 The court erred in over-emphasizing the following factors:
a) The interests of society - and finding that the appellant was a
danger to society and needed to be removed permanently
b) The seriousness of the offence and the deterrent effect of
sentencing
c) The punishment as the element of sentencing and the personal
Page 11 of 11 circumstances
of the appellant which if not properly applied or balanced , may end up
putting people who are not danger to the society in prison and
introduce them to harsh conditions of prison and thereby grooming
them into hardened criminals ".
[3] It is a trite principle of our law that the imposition of sentence is pre -
eminently within the discretion of the sentencing court. In dealing with the
question of sentence , a trial court will consider the particular circumstances
of the case in light of the well -known triad factors relevant to sentence and
impose what it considers to be a just and appropriate sentence.
[4] As a court of appeal, this court must determine whether the sentence
imposed on the appellant was justified. Accordingly, a court exercising
appellate jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question of sentence as if it were the trial court
and then substitute the sentence arrived at by it simply because it prefers it.
To do so would be to usurp the sentencing discretion of the trial court1. Put
differently, an appeal court is only entitled to interfere with the sentence
imposed by the trial court where such a sentence is disturbingly
inappropriate or is vitiated by misdirection of a nature which shows that the
trial court did not exercise its discretion reasonably.
[5] The trial court's discretion to impose what it considers to be a just and
appropriate sentence is a principle which has always been fundamental in
our law of criminal procedure. It is for this reason that the SCA in Mokela v
The State2 expressed that "this salutary principle implies that the appeal court
does not enjoy carte blanche to interfere with sentence which have been
properly imposed by a sentencing court ".
1 S v Malgas 200 I SACR 496 at para 12 (SCA).
2 2012 (I) SACR 431(SCA) para 9,
Page 11 of 11 [6] In S v PB3, the SCA moreover formulated an appellate court's
approach in an appeal against a sentence imposed in terms of the minimum
sentencing legislation. It did so as follows : "What then is the correct approach
by a court on appeal against a sentence imposed in terms of the Act? Can
the appellate court interfere with such a sentence imposed by the trial court's
exercising its discretion properly , simply because it is not the sentence
which it would have imposed or that it finds shocking? The approach to an
appeal on sentence imposed in terms of the Act should, in my view, be
different to an approach to other sentences imposed under the ordinary
sentencing regime. This , in my view, is so because the minimum sentences
to be imposed are ordained by the Act . They cannot be departed from lightly
or for flimsy reasons. It follow s therefore that a proper enquiry on appeal is
whether the facts which were considered by the sentencing court are
substantial and compel ling, or not."
[7] It is incumbent upon a court in every case, before it imposes a
prescribed sentence, to asses s, upon a consideration of all the circumstances
of the particular case, whether the prescribed sentence is indeed
proportionate to the particular offence4. In order to determine whether the
trial court misdirected itself or imposed a sentence that was strikingly
disproportionate as averred in paragraph 3.1 of the notice of appeal, it is
imperative to examine whet her the general purpose of imposing a sentence
as pronounced in S v Rabie5, as well as the triad factors applicable to
sentencing in S v Zinn6 have been considered.
[8] It appear s from the reading of the record that the trial court took into
consideration the principles laid down in both Robie and Zinn as it indicated
that "all these factors need to be balanced and accorded appropriate weight
for the court to come to an appropriate se ntence", thus giving effect to the
3 2013 (2) SACR 533 (SCA) at para [20].
4 Vilakazi v S 2012 (6) SA 353 (SCA) at para 15.
5 1975(4)SA855(A).
6 1969 (2) SA 537 (AD).
Page 11 of 11 principle that the sentence to be imposed should fit the crime; the criminal,
and it must be fair to society. It also appears from the reading of the record
that the trial court further cons idered the evidence presented in the J88
medico -legal examination report ; the victim impact report; and the pre-
sentence report compiled on behalf of the appellant so as to make a value
judgment in order to come to a suitable sentence.
[9] It is common cause that the appellant and the complainant had a
father -daughter relationship because the appellant was in a love
relationship with the mother of the complaint and were staying together in
the same house. The back ground facts and circumstances of this case can
be gleaned from both the victim impact report and pre- sentence report. The
victim impact report revealed the following:
(a) The appellant's relationship with the mother of the
complainant started when the complainant was 12 years old. The
complainant indicated that she did not trust the appellant because of the
way he looked at her and described the ordeal as painful and stated
that she is "feeling very dirty".
(b) There was an incident when the mother of the complainant and -
the other children were not at home and the complainant and the
appellant were alone at home - the appellant remarked that, although
she was a grown- up girl, her mother did not give her the respect and
treatment she deserves because she did not buy her a cell phone or
better clothes. The appellant then told her that if she agrees to have
sex with him, he will cater for such needs. He promised the
complainant that if she agreed to have sex with him, he would cater for
such needs. The complainant felt offended and angered by the
utterances and informed her mother when she returned home.
(c) On the day of the incident, the complainant's mother and the
other children went to church and the appellant was not home. He
returned around 23:00 drunk and the complainant had to open the door
for him and went to sit in the sofa. The appellant entered the house
Page 11 of 11 and went to sit on the sofa where the complainant was sitting. He
started touching her all over her body, and as she attempted to
scream, he threatened to kill her, throttled her and pulled her to his
bedroom. He pulled her dress up and the complainant screamed. He
then showed her a knife and threatened to kill her if she continued to
scream , and he then raped her.
(d) It is noted that the complainant experienced anxiety attacks
because she was always scared that the appellant might come back to
harm her. Her personality changed because following the incident, she
isolated herself from her siblings and had to be offered counselling
which unfortunately did not help because there were no changes.
(e) It is noted that the complainan t will likely suffer long -term effect in
terms of trust and hatred towards male figures which might affect her
own future relationships.
(f) The complainant was doing grade 9 at the time of the incident
and her performance at school was also severely affected because she
could not concentrate.
(g) It is further noted that the rape incident also had a severe impact
on the family of the complainant as her mother blamed herself for
having a relationship with the appellant. The family had to relocate to
another place, away from the crime scene and was affected socially
and financially.
[9] The pre-sentence report revealed the following:
(a) "The appellant was very drunk on the day of the incident, and
when he is intoxicated, he develops a perverse behavior . Further that
alcohol turned out to be the main cause of the offence that he has
been convicted of.
(b) He was coming from the pub and found the complainant standing
outside the house crying. The complainant informed him that her
mother went out with her siblings, and she remained alone in the
house. He informed the complainant to come and sit in the couch with
Page 11 of 11 him and he comforted her and informed her to stop crying., and he
does not recall what transpired because he was very drunk ".
[10] It was submitted on behalf of the appellant at paragraph 17.3 of his
heads of argument that the trial court erred in not considering that the J88
medical report admitted as exhibit B reflected that there was no history or
physical injuries noted. It was further submitted that the trial court misdirected
itself in ignoring that the appellant was intoxicated and without justification,
holding that his degree of intoxication was negated by his previous sexual
behavior towards the complainant.
[11] The respo ndent opposed the appeal and argued that the sentence
imposed i s fair and appropriate under the circumstances. Relying on the
decision in Bothma v Els and Others7, Mr Maritz argued that the appellant
indicated his sexual interest in the complainant and abused his position of
trust and authority over the complainant and abused the family setup and
the vulnerability of the complainant. He further argued that the appellant was
sexually interested in the complainant before the rape, and had threatened to
kill the complainant with a knife should she continue to scream.
11.1 He submitted that the trial court did not misdirect itself
because it took into consideration all the relevant factors when
sentencing the appellant and further considered that the appellant
was intoxicated when he committed the offence but was of the view
that the intoxication could not be regarded as a substantial and
compelling circumstance. He submitted that the trial court did not err
in this regard or misdirect itself or commit an irregularity. It was
further submitted that the sentence imposed is not disproportionate or
shocking because an evaluation of all the relevant factors regarding
sentence was considered.
[12] In my view, the submissions made on behalf of the appellant are
7 20 IO (2) SA 622 (CC).
Page 11 of 11 misplaced. With regards to the argument that no physical injuries were
noted in the J88 , it is indisputable that the J88 revealed specifically that the
complainant sustained multiple injuries on her vulva, and that her hymen was
ragged with several fresh tears. Even if that were not the case and the
complainant did not susta in injuries, the provisions of section 51{3)(aA)(ii) of
the CLAA expressly provide that the apparent lack of physical injury to the
complainant shall not constitute substantial and compelling circumstance
justifying the imposition of a lesser sentence.
12.1 With regards to the submission that the trial court misdirected
itself in ignoring that the appellant was intoxicated, there is no merit
in this submission because the issue of intoxication was raised for
the first time when the appellant was interviewed by the probation
officer. His guilty plea in terms of section 112(2) of the CPA is silent
in this regard, and it would be wrong to suggest that the trial court
ignored this aspect.
12.2 In any event, it was never his case when he pleaded guilty - or
his defence that intoxication was the cause or that it led to the actions
that he took when he raped the complainant. The trial court can
therefore not be faulted in this regard.
12.3 Mr Maritz correctly subm itted that the trial court
took into consideration that the
appellant was under the influence of alcohol at the time of the
commission of the offence and indicated that this aspect could not be
regarded as a substantial and compelling circumstance.
[13] In light of the above, I cannot find any misdirection in the trial
court's reasoning when it held that - had it not been for the appellant 's
previous attention to the complainant and indication that he wanted her to
have sexual intercourse with him in return for favours -then the court would
have noted the level of intoxication as being substantial and compelling.
Page 11 of 11 [14] The offence of rape for which the appellant was convicted and
sentenced for, falls under the purview of section 51(1) and Part I of
Schedule 2 of the CLAA, and carries a prescribed sentence of life
imprisonment . To avoid this sentence, the appellant had to satisfy the trial court
that substantial and compelling circumstances existed which justify the
imposition of a lesser sentence than the prescribed minimum sentence. In
my view, the trial court took into account all the personal circumstances of the
appellant cumulatively and did not find any substantial and compelling
circumstances or justification to deviate from imposing the prescribed
minimum sentence.
[15] As far as the grounds of appeal noted in paragraph 3.2 is concerned,
those aspects were taken into consideration by the trial court . Having done
that, the trial court was mindful of the warning in S v Malgas8 that the court
should not deviate from imposing the prescribed minimum sentence for
flimsy reasons. With that in mind, it is important to heed to the purpose for
which legislature was enacted when it prescribed sentences for specific
offences which falls under section 51(1) for which the appellant has been
convicted and sentenced for.
[16] With regards to the grounds of appeal noted in paragraph 3.3, I
already indicated that the trial court took into consideration the principles laid
down in both Rabie and Zinn. Having cons idered the reasons for sentence
and taking Into account the contents of the victim impact report as noted
above, I am of the view that the trial court did not misdirect itself. It is also
my considered view that the trial court carefully balanced all the factors
before it in order to ensure that one element is not undu ly accentuated at
the expense of, an d to the excl usion of t he others. In the c ircumstance, I find
that the trial court did not over -emphasize any of the factors raised under
this ground.
8 2001(I) SACR 469 (SCA).
Page 11 of 11 [17] In considering the evidence presented in the victim impact report,
the trial court stated that the appellant was in loco parentis and stood in as
the father of the complainant who was in position of trust and authority over
the complainant and was as such supposed to protect her. The trial court
further held, and correctly so, that the appellant was "grooming " the
complainant when he told her that he would buy her clothes and a cell phone
in exchange for sexual favours. It is in this context that a balanced
consideration of the interests of society and of the offence of rape committed
by the appellant was made.
[18] In expressing that the onslaught of rape on children destroys their
lives forever and that it cannot be 'business as usual ', as stated in Malgas,
the SCA in Maila v The State9 quoted with approval, the case of S v
Jansen,10 where the court stated the following:
"Rape of a child is an appalling and perverse abuse of male power. It
strikes a blow at the very core of our claim to be a civilized society . The
community is entitled to demand that those who perform such perverse
acts of terror be adequately punished and that the punishment reflect
the societal censure. It is utterly terrifying that we live in a society
where children cannot play in the streets in any safety; where children
are unabl e to grow up in the kind of climate which they should be able
to demand in any decent society , namely in freedom and without
fear. In short, our children must be able to develop their lives in an
atmosphere which behoves any society which aspires to be an open
and democratic one based on freedom, dignitv and equality, the very
touchstones of our Constitution" .
[19] It appears from the reading of the record that when the trial court took
into account the personal circumstances of the appellant, it also took into
9 (429/2022) (2023) ZASCA 3 (23 January 2023)
10 S v Jansen 1999 (2) SACR 368 (C) at 378G -379B.
Page 11 of 11 account the time spent by the appellant in custody awaiting trial. The SCA in
OPP v Gcwala ,11 held that: "the period in detention pre- sentencing is but one
of the factors that should be taken into account in determining whether the
effective period of imprisonment to be imposed is justified and whether it is
proportionate to the crimes committed. 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 crimes and whether the sentence in all the circumstances, including
the period spent in detention prior to conviction and sentence is a just one".
(see also: S v Radebe 2013 (2) SACR 165 (SCA} at para 14.}
[20] Having regard to the cumulative circumstances of this case, I agree
with the trial court's decision that the pre-sentence detention of the
appellant did not justify a departure'. , from the imposition of the prescribed
sentence. Accordingly , the trial court cannot be faulted in imposing the
prescribed sentence of life imprisonment .
[21] Having given proper and due consideration to all the circumstances, we
are of the view that the trial court considered all the factors when imposing
the sentence appealed against . This court cannot fault the decision of the
sentencing court, nor can it be said that the sentence imposed is s hocking or
unjust. Accordingly, we cannot find any misdirection in the trial court's finding.
In the circumstances , the following order is made:
1. The appeal against sentence is dismissed .
PD. PHAHLANE
JUDGE OF THE HIGH COURT
I agree,
11 OPP v Gcwa/a (295/13) [2014) ZASCA 44 (31 March 2014).
Page 11 of 11 MJ MO SOPA J
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Appellant : Adv. LA VANWYK
Instructed by : Legal Aid South Africa
Pretoria Justice Centre
Email: LillianV@legal -aid.co.za
Counsel for the Respondent : Adv. GJC MARITZ
Instructed by:
Director of Public Prosecutions, Pretoria
Email: gjcmaritz@npa.gov.za
Heard on: 21 January 2025
Date of Judgment :24 March 2025