REPUBLIC OF SOUTH AFRICA
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG (PALMRIDGE)
Case No: SS027/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED . •
7... fl I, a"!-(202S
DA E
In the matter between:
THE STATE
and
GERHARD CHRISTIAN VANDEVENTER
SENTENCE
STRYDOM,J Accused
[1] Mr. Gerhard Christian Van Deventer (hereinafter referred to as 'the accused')
was convicted on a count of rape as contemplated in Section 3 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007(the
Sexual Offenses Act).
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[2] His victim is a minor female child, TM, who was between 4 and 6 years old
when the accused penetrated her vagina with his fingers.
[3] The accused was staying with the family of TM in a room adjacent to a workshop
where the family lived. TM and her siblings got close to the accused, who at
that stage was about 65 years old. He formed a trust relationship with TM and
her older brother DM. This relationship he abused by penetration the vagina of
TM who was an innocent young child at that stage.
[4] The accused is currently 68 years old.
[5] It is now the difficult task of this Court to sentence the accused.
[6] It is trite that a Court, when considering appropriate sentences must consider and
balance three competing factors, i.e. the personal circumstances of the accused,
the seriousness of the crimes and the interests of society.
[7] The Court should strive to accomplish and arrive at a judicious counterbalance
between these elements to ensure that one factor is not unduly accentuated at
the expense of, and to the exclusion of, the others.
[8] The Court is also required to have regard to the aims of punishment when it
considers an appropriate sentence, namely prevention , deterrence , rehabilitation
and retribution . The sentence must be balanced, and the Court will consider the
concept of mercy in appropriate circumstances . 1
[9] The accused in this matter was found guilty on one count of rape read with
section 51(1) of the Criminal Law Amendment Act 105 of 1997 (the Minimum
Sentences Act). I pause to mention that the evidence in this matter focused on
one occasion when the accused penetrated the vagina of TM with his fingers.
She, however, added that this happened on more than one occasion. She did
not provide any specific evidence pertaining to these other occasions. The Court
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convicted the accused on one count of rape as charged but the indictment , with
reference to this count, alleged "acts of sexual penetration" upon or about the
dates that is unknown to the state. The Court accepted the evidence of TM.
Accordingly , the Court accepted that the rape happened on more than one
occasion.
[1 O] In terms of section 51 (1 ), but subject to subsections (3) and (6) of the Minimum
Sentences Act, the court shall sentence a person it convicted of an offence
referretj to in Part 1 of Schedule 2 to imprisonment for life. Part 1 of Schedule 2
(as amended) refers to rape as contemplated in section 3 of the Sexual Offence
Act where the victim is a person under the age of 18. In this case the victim was
between 4 to 6 years old when she was raped.
[11] Section 51 (3)(a) of the Minimum Sentences Act provides the court with a
discretion to deviate from the prescribed sentence of imprisonment for life if the
court is "satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the sentence prescribed. "
[12] The Court will bear in mind that there is no onus placed on the accused to prove
the presence of substantial and compelling circumstances , or on the state to
prove the absence of such substantial and compelling circumstances . However,
their rests a clear duty on the accused to produce evidence to convince the Court
that circumstances exist, which justify the imposition of a lesser sentence. It
stands to reason that such substantial and compelling circumstances may also
be inferred to be present in the state's case or in evidence presented by the state
witnesses or by the prosecution itself. If no factual basis is laid for a finding that
substantial and compelling circumslances exist which justify the imposition of a
lesser sentence than the prescribed sentence, it follows that the Court will be
obliged under the statutory provisions to impose the prescribed sentence. 2
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[13) What would constitute substantial and compelling circumstances has been the
subject matter of decisions in many matters.
[14] In S v Ma/gas3 the following was stated in relation to this question of whether
substantial and compelling circumstances existed or not:
"If the sentencing court on consideration of the circumstances of the particular case
is satisfied that they render the prescribed sentence unjust that it would be
disproportionate to the crime, the criminal and the needs of society, so that an
injustice would be done by imposing that sentence, it is entitled to impose a lesser
sentence."
[15] Our courts have held on numerous occasions that the seriousness of this kind of offence
and the prevalence thereof outweighs an accused's personal circumstances and found
lengthy periods of imprisonment to be appropriate. 4
[16] The personal circumstances of an accused can, however, constitute substantial
and compelling circumstances that justified the imposition of a lesser sentence
when .considered with all the circumstances of the offence which the accused
was convicted of. This would, obviously, further depend on the nature of such
personal circumstances, viewed together with the nature of the crime and the
needs of society.
[17] In the matter of Director of Public Prosecutions Limpopo v Motloutsi 5 the SCA
questioned the decision of the trial court to have found that the personal
circumstances of the respondent amounted to substantial and compelling
circumstances that justified the imposition of a lesser sentence. The court
referred to the matter of S v Matyity/3 where Ponnan JA found as follows:
"Ma/gas, which has since been followed in a long line of cases, set out how the
3 2001 (1) SACR 469 (SCA) at [25]
4 S v Cornick and Another 2007 (2) SACR 115 (SCA) and S v M 21007 (2) SACR 60 (W).
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minimum sentencing regime should be approached, and in particular how the
enquiry into substantial and compelling circumstances is to be conducted by a court.
To paraphrase from Ma/gas: the fact that Parliament had enacted the minimum
sentence legislation was an indication that it is no longer 'business as usual'. A court
no longer had a clean slate to inscribe whatever sentence it thought fit for the
specified crimes. It had to approach the question of sentencing, conscious of the
fact that the minimum sentence had been ordained as the sentence which ordinarily
should be imposed, unless substantial and compelling circumstances were found
to be present."
[18] In S v VilakazV the following was said in relation to a finding whether substantial
and compelling circumstance exist in a particular case:
"It is clear from the terms in which the test was framed in Ma/gas and endorsed in
Dodo that it is incumbent upon a court in every case, before it imposes a prescribed
sen_tence, to assess, upon a consideration of all the circumstances of the particular
case, whether the prescribed sentence is indeed proportionate to the particular
offence."
[19] In the matter of S v De Beer8 it was found that before a life sentence is imposed
a court will have to give proper consideration to the question of whether a life
sentence was proportionate to the crime, the appellant and the legitimate needs
of society. The court found as follows:
"[21] The court a quo does not seem to me to have given proper consideration to
the question whether a life sentence was proportionate to the crime, the appellant
and the legitimate needs of society. It seems to me to have focused too much on
the fact that life imprisonment was the prescribed minimum sentence."
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[20] Thus, the enquiry will focus, inter alia, on the seriousness of the crime. Rape
without a doubt is one of the most serious crimes which is prevalent in this
country.
[21] There are, however, degrees of seriousness. Even in cases of child rape. In this
regard the Court can refer to the matter of S v Mahomotsa9. In this case, the
Supreme Court of Appeal held that certain rape matters are more serious than
others. At paragraph 17 it was held as follows:
"[17] The rapes that we are concerned with here, though very serious, cannot be
classified as falling within the worst category of rape. Although what appeared to be
a firearm was used to threaten the complainant in the first count and a knife in the
secpnd, no serious violence was perpetrated against them. Except for a bruise to
the second complainant's genitalia no subsequently visible injuries were inflicted on
them. According to the probation officer-she interviewed both complainants -they
do not suffer from any after-effects following their ordeals. I am sceptical of that but
the fact remains that there is no positive evidence to the contrary. These factors
need to be taken into account in the process of considering whether substantial and
compelling circumstances are present justifying a departure from the prescribed
sentence. "
[22] In S v SMM10 Madjiedt JA found as follows with reference to degrees of
seriousness of rapes:
"The second self-evident truth (albeit somewhat contentious) is that there are
categories of severity of rape. This observation does not in any way
whatsoever detract from the important remarks in the preceding paragraph.
This court held in S v Abrahams that 'some rapes are worse than others, and
the life sentence ordained by the Legislature should be reserved for cases
devoid of substantial factors compelling the conclusion that such a sentence
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is inappropriate and unjust'. The advent of minimum sentence legislation has
not changed the centrality of proportionality in sentencing ."
[23) In De Beer11 the court also considered that there are various degrees of
seriousness when it comes to rape. It was held in paragraph [20) of this
judgment as follows:
"[20] S v GK 2013 (2) SACR 505 (WCC) is an insightful discussiof) by Rogers J,
with whom Gamble J concurred , of the approach to the proportionality of life
sentences in rape cases. He referred to cases such as Ma/gas, S v Abrahams 2002
(1) SACR 116 (SCA), S v Mahomotsa 2002 (2) SACR 435 (SCA), S v Vilakazi 2009
(1) SACR 552 (SCA) and S v SMM 2013 (2) SACR 292 (SCA), all of which support
his approach . He also referred to crimes which would previously have constituted
indecent assault and would probably have attracted a few years' imprisonment , but
now fall within the minimum sentencing regime. The present case falls into this
category. See in this regard the analysis in S v Coetzee 2010 (1) SACR 176 (SCA),
at paras 18 to 25, of sentences imposed in cases of indecent assault. The sentences
included terms of imprisonment ranging between eighteen months and five years,
with portions thereof suspended , and in some cases correctional supervision in
terms of s 276(1) of the CPA."
[24) In my view, the case of the accused falls into a category of the less serious rape
matters. Before the Sexual Offenses Act was legislated the accused, for inserting
his fingers in the vagina of TM, would have been convicted of indecent assault
and not rape. The Court must emphasize that the penetration by a finger of the
vagina of a female person is now legislated to be rape and remains a very serious
crime. Moreso, when the victim is a young child.
[25) On behalf of the state, Ms. Williams, argued that the accused failed to show the
existence of substantial and compelling circumstances and that the Court should
impose the prescribed minimum sentence of life imprisonment.
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[26] Considering the accused's personal circumstances , more particularly his age, as
he is currently 68 years old, together with the fact that he has no previous
convictions and the nature of this rape case the Court is of the view that
substantial and compelling circumstances exist to deviate from the prescribed
minimum sentence. For 68 years the accused had no brushes with the law. He
maintained a stable employment record over many years. Add to this, the
accuseo remained in custody pending finalisation of his trial for a period of
approximately 2 years and 4 months.
[27] Having regard to this, a sentence of life imprisonment would be unjust, and it
would be disproportionate to the crime, the criminal and the needs of society. An
injustice would be done by imposing that sentence. Consequently , the Court
would be entitled to impose a lesser sentence.
[28] The Court will now consider what this sentence should be again with reference
to the personal circumstances of the accused, the seriousness and nature of the
offence and the interest of society.
[29] The Co_urt was provided with a report compiled by a probation officer, Ms. Mulalo
Nemutandani. The Court is indebted to her for compiling this report.
[30] In this report the family background of the accused has been set out. The
accused had a reasonable stable upbringing and apart from the fact that his own
father died when he was still young there is nothing reported which might have
had the impact on why he committed this offence. He never got married and had
no children. It was also noted that the accused became close to his victim and
that there existed a close relationship between them. It was further noted in the
report that the accused persists in his innocence and, accordingly , have shown
no remorse for his actions. It was recommended that considering the seriousness
of the crime on which the accused was convicted , direct imprisonment would be
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the most appropriate · sentence given the mandatory sentencing guidelines for
offences such as rape, particularly considering that the victim is a minor.
[31] The Court agrees with the recommendation made by the probation officer that
direct imprisonment would be the only appropriate sentence.
[32] As stated hereinabove it was argued on behalf of the state that the Court should
sentence the accused to life imprisonment. As part of this argument the Court
was referred to many cases which emphasized the seriousness of the crime of
rape. That rape is a serious crime, is indeed so. See in this regard the matters of
S v Ncheche 12, S v C13, Holtzhauzen v Roodt 14, S v Vilakazi 15 and S Chapman 16
in which matters the seriousness of the crime of rape was emphasized .
[33] It was submitted that the following aggravating circumstances are present in this
matter:
a. TM was approximately 4-6 years old at the time of the rapes.
b. TM was raped by the accused on multiple occasions .
c. TM sustained injuries as a result of the rapes by the accused. These
injuries were described as clefts to her hymen.
d. The accused was in a position of trust which he abused.
e. The accused knew that TM was vulnerable as he knew that her parents
did not properly take care of her and her siblings.
[34] These are aggravating circumstances this Court will consider in arriving at an
appropriate sentence.
12 2005 (2) SACR 386 (W)
131996 (2) SACR 181(C)
14 -4nn-, I A\ r,,. A _,,,..,,... "· f\
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[35] The Court will also consider the interest of society which expects from this Court
to deal appropriately with an accused convicted on account of rape, albeit, that
penetration only took place with fingers, especially where a young child was the
victim. This Court and society are alive to the scourge of abuse of children. The
Court operates in society and has a duty through its sentencing discretion to
promote respect for the law.
[36] In S v 017 it was found:
"Children are vulnerable to abuse, and the younger they are, the more vulnerable
they are. They are usually abused by those who think that they can get away with
it, and all too often do ... "
[37] In this matter there was no evidence presented to Court as to what lasting
psychological impact and effect this rape had on TM. The reason being that she
might have been too young to properly understand what had happened to her. It
should be mentioned that the Court could not observe any visible signs of
psychological trauma whilst she testified. During her evidence she stated that
she no longer liked the accused but apart from this she appeared to be unphased
as to what happened to her. As to what the long-term effects would be when she
becomes older, the Court can only speculate about. For sentencing purposes ,
the long term possible, or even probable, psychological impact of the rape on TM
was not proven. The Court would, however, be appraised of the psychological
effect the rape had on the brother of TM. It took a long time before he could relate
to a therapist what had happened to his sister. Even in court he still experienced
difficulties relating his evidence to court.
[38] TM suffered no serious injuries during the rape. The only injuries were two clefts
to her hymen. In terms of section 51 (3)(aA)(ii)of the Minimum Sentences Act,
when imposing a sentence in respect of the offence of rape an apparent lack of
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physical injury to the complainant shall not constitute substantial and compelling
circumstances justifying the imposition of a lesser sentence. This, however, does
not mean that this Court cannot consider this fact when an appropriate sentence
is considered. In S v SMM18 the court concluded that the proper interpretation of
the provision does not preclude a court sentencing for rape to take into
consideration the fact that a rape victim has not suffered serious or permanent
physical injuries, which, along with other relevant factors, would be considered
to arrive at a just and proportionate sentence.
[39] The accused has showed no signs of being remorseful. He persisted in his
innocence as he is rightfully entitled to do. For purposes of sentence, however,
the Court will take into consideration that he is not remorseful for what he has
done.
[40] The Court considered sentences imposed in other reported cases to serve as a
guide as to what an appropriate sentence would be in this matter. The Court will
briefly deal with some of these matters, the facts of which have some similarity
with the facts of this case. The Court, however, is acutely aware that rarely other
matters would be on all fours with the matter at hand.
[41] In S v De Beer19 the appellant was convicted on a count of rape, in that over a
period of four months he had on numerous occasions inserted his finger into the
private parts of an 8-year-old girl and made her touch his private parts. On a
further appeal to the SCA, after the first appeal court increased his sentence to
life imprisonment , he was sentenced to 15 years imprisonment of which five
years were suspended . This was the original sentence imposed by the Regional
Court.
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[42] In S v SMM2° the appellant inserted his fingers into the vagina of his 13 years old
niece and thereafter continued to insert his penis into her vagina. This lasted for
about 5 minutes, but when she started to cry the appellant stopped his actions.
On appeal a sentence of life imprisonment was replaced with a sentence of 15
years imprisonment.
[43] In Chinjeke v The State21 the full bench of this Division, upheld an appeal against
a life sentence for the rape of an 8-year-old child, where the appellant inserted
his penis in the vagina of his victim. His victim knew the appellant and she trusted
the appellant. He took advantage of this trust relationship. The sentence of 18
years imprisonment was imposed. It should be mentioned that there were more
severe injuries to the genitals of this child as is the case with TM. This was caused
through forced penetration by the penis and not the fingers of the appellant.
[44] Having considered the aggravating and mitigating circumstances, including the
seriousness of the rape conviction, where the accused on more than one
occasion penetrated the vagina of TM, a young child, with his fingers, where the
accused is an elderly first offender, who already spent 2 years and 4 months
awaiting finalisation of his trial, the Court is of the view that the accused should
be sentenced to a relatively long period of imprisonment.
[45] The accused is sentenced to 15 years imprisonment, 5 years of which is
suspended for a period of 5 years, on condition that the accused is not during the
suspension period convicted on any contravention contemplated in the Sexual
Offenses Act 32 of 2007 for which conviction he is sentenced to direct
imprisonment.
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R.STRYDOM
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
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Date of conviction : 06 February 2025
Date of sentence: 28 March 2025
Appearances
For the State: Adv. Williams
Instructed by: National Prosecuting Authority (Johannesburg)
For the Accused: Adv. Buthelezi
Instructed by: Legal Aid South Africa