IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )
NOT REPORTABLE
Case no: CC68 /2024
In the matter between :
THE STATE
And
HLUMELO YALI ACCUSED
__________________________________________________________________ _
JUDGMENT ON SENTENCE
___________________________________________________________________
Govindjee J
Background
[1] Mr Yali was convicted of a charge of rape. He unlawfully and intentionally
committed acts of sexual penetration with a seven -year-old female complainant by
inserting his penis into her anus and vagina during October 2022 .
[2] As the victim was under the age of 1 8, the offence falls within Part I of
Schedule 2 of the Criminal Law Amendment Act, 1997 ,1 attracting a minimum
sentence of life imprisonment unless substantial and compelling circumstances exist
to justify the imposition of a lesser sentence.
[3] Section 276 of the Criminal Procedure Act, 19772 provides for the sentences
which courts can impose. The imposition of sentence is pre -eminently a matter for
the discretion of the trial court, which is fre e to impose whatever sentence it deems
appropriate provided it exercises its discretion judicially and properly. The general
purpose of imposing a sentence is fourfold: retributive, preventative, rehabilitative
(reformative) and to act as a general deterre nt.3 While the retributive aspect tends to
dominate, courts are enjoined to temper the punishment with a measure of mercy.4
[4] The sentencing court must attempt to achieve a balance in its sentence,
without deliberately striving for either severity or misp laced pity .5 The object of
sentencing is not to set an example or satisfy public opinion, but to serve the public
interest.6 In the final analysis, the well -known triad of factors to be considered
consists of the crime, the offender and the interests of society,7 and these factors
must be applied, in accordance with S v Malgas ,8 to consider whether substantial
and compelling circumstances exist to deviate from any prescribed minimum
sentence.9 In S v Matyityi ,10 Ponnan JA held that Parliament:
‘…has ordained minimum sentences for certain specified offences. Courts are
obliged to impose those sentences unless there are truly convincing reasons
for departing from them. Courts are not free to subvert the will of the
1 Act 105 of 1997 (the Minimum Sentences Act).
2 Act 51 of 1977 (the CPA).
3 S v Rabie 1975 (4) SA 855 (A) (Rabie ).
4 Rabie at 862G -H.
5 See S v Khulu 1975 (2) SA 518 (N) 521 -522.
6 S v Mhlakhaza and Another [1997] 2 All SA 185 (A) at 189. Also see S v M (Centre for Child Law as
amicus curiae ) 2007 (2) SACR 539 (CC).
7 S v Zinn [1969] 3 All SA 57 (A) at 540G -H.
8 S v Malgas 2001 (1) SACR 469 (SCA) (Malgas ).
9 See Radebe v The State [2019] ZAGPPHC 406 para 12.
10 S v Matyityi 2011 (1) SACR 40 (SCA) (Matyityi) para 23. Also see Malgas above n 8 , in respect of
the prescribed period of imprisonment in the Minimum Sentences Act ordinarily being imposed for the
commission of the listed crimes in the specified circumstances, in the absence of weighty justification,
as quoted in Otto v S [2017] ZASCA 114 a t para 21.
legislature by resort to vague, ill -defined concepts…and ill -founded
hypotheses that appear to fit the particular sent encing 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’.
Nature of the crime and surro unding circumstances
[5] The complainant was raped by Mr Yali after she had visited the home in which
he stayed to play with a friend . The evidence demonstrated that Mr Yali called the
complainant to his room by offering her chips, before undressing her and ra ping her,
first while she lay on her stomach and then on her back. He failed to stop when the
complainant asked him to do so and t he rape was painful, causing her to cry.
Medical evidence revealed that the complainant’s hymen was broken by the rape.
She also experienced minimal dilation and twitching indicative of trauma to the anus.
No other physical injuries were discernible, bearing in mind that the complainant was
only medically examined some three days after the incident, so that other injuries
may have already healed.
[6] It is also important to consider the effect of the crimes on the victim,
particularly in cases of gender -based violence.11 The state led the evidence of Ms
Stamper, a social work practitioner who examined the complainant on 30 November
2024 and compiled a ‘victim impact report’. The uncontested evidence is that the
complainant expressed feelings of sadness and emotional hurt. Her behaviour was
aggressive, particularly towards her younger sister and she was fearful of male
figures and uncomfortable in their presence. The social worker also received a report
that the complainant was not taken care of properly by her parents, who allegedly
abused alcohol, so much so that psychosocial intervention by the Department of
Child Welfare for the complainant and her parents was recommended and arranged
by Ms Stamper. Unfortunately, the report reveals that the complainant has no
emotional ties with her mother, impactin g on her recovery process. It is accordingly
11 See A Spies ‘The judicial relevance and impact of victim impact statements in the sentencing of
rape offenders’ (2018) SACJ 212 at 231 as cited in S v Dyonase [2020] ZAWCHC 137 para 21.
self-evident that not all the complainant’s behavioural traits , as observed at the time
the report was compiled, are necessarily solely related to the incident. But that does
not diminish the reality that the co mplainant is exhibiting signs of post -traumatic
stress and experiences flashbacks of the trauma. The incident affects her sense of
trust and has impacted negatively on her family and community. Her childhood has
now been scarred by sexual abuse, which unde rmines her development as a child in
various ways, including a sense of powerlessness and low self -esteem. The impact
of the ordeal will be long -lasting and multi -fold, extending into adulthood. It is also
noted that the complainant was made to relive her ordeal in court. According to the
SCA, this factor should not be overlooked.12
Mr Yali’s circumstanc es and interests
[7] Mr Geldenhuys placed Mr Yali’s personal circumstances before court.
Although Mr Yali’s precise date of birth is uncertain , it was submitted on his behalf
that h e was 22 years of age at the time of the inciden t. The psychiatric report
accepted into evidence reflects his date of birth as 30 May 2001, suggesting that he
might only have been 2 1 at the time of the incident. He has no previous convictions ,
with no other cases pending . His le vel of education is low ; he dropped out of school
in grade eight . He is unmarried , has no children and is unemployed. At the time of
his arrest, he resided with his elder brother and sister, who have acted as his parents
since they passed away approximately six years ago . It was argued that these
factors c umulatively reflected that the crime had been perpetrated by an immature
first offend er, so that a lengthy period of imprisonment, rather than life imprisonment,
would offer the hope of rehabilitation.
[8] Mr Yali has already been in custody since October 2022, a period in excess of
two years. This is explained by a direction issued by the Magistrate: Port Alfred in
terms of either ss 77(1) or 78(2) of the CPA to refer Mr Yali for psychiatric
observation.13 He was admitted to Fort England Hospital on 31 May 2024 and
12 MDT v S [2014] ZASCA 15; 2014 (2) SACR 630 (SCA) para 2.
13 Section 77(1): ‘If it appears to the court at any stage of criminal proceedings that the accused is by
reason of mental illness or intellectual disability not capable of understanding the proceedings so as
subjected to various clinical interviews and asses sments and kept under constant
observation by the psychiatric nursing staff. He presented with normal behaviour and
speech and no perceptual disturbance, with good insight and judgment during the
panel enquiry. The resultant psychiatric report diagnosed only a cannabis use
disorder , the panel recommending that the law takes its course based on Mr Yali’s
capacity to understand court proceedings and to appreciate wrongfulness and act in
accordance with that appreciation. While it may be noted that Mr Yali con veyed, via
his counsel, that he had used cannabis and tik extensively since 2016, it is
speculative to suggest that this affected his conduct at the time the offence was
committed. Nonetheless, the court notes that as of 26 June 2024, he continued to
suffe r from a cannabis use disorder.
The interests of society
[9] Courts have repeatedly reflected on the horrific , repulsive, nature of the
offence of rape, given that it constitutes a humiliating, degrading and brutal invasion
of the privacy, dignity and person of the victim.14 Children’s rights are constitutionally
protected and rape of a child , particularly one as young as seven, is by its nature one
of the worst kinds of offences imaginable. It has therefore been accepted that the
crime deserves severe punishm ent, society’s expectation being that this will serve as
a deterrent so that the unceasing slew of rape incidents will cease.15 As the SCA has
to make a proper defence, the court shal l direct that the matter be enquired into and be reported on in
accordance with the provisions of section 79.’
S 78(2): ‘If it is alleged at criminal proceedings that the accused is by reason of mental illness or
intellectual disability or for any other re ason not criminally responsible for the offence charged, or if it
appears to the court at criminal proceedings that the accused might for such a reason not be so
responsible, the court shall in the case of an allegation or appearance of mental illness or i ntellectual
disability and may, in any other case, direct that the matter be enquired into and be reported on in
accordance with the provisions of s 79.’
14 See, for example, S v Vilakazi 2012 (6) SA 353 (SCA); [2008] 4 All SA 396; [2008] ZASCA 87; 2009
(1) SACR 552 (SCA) ( Vilakazi ) at 555H.
15 S v Chapman 1997 (2) SACR 3 (SCA) at 5B. When imposing a sentence in respect of the offence
of rape, an apparent lack of physical injury to the complainant and any relationship between the
complainant and accused prior to the offence being committed are not, on their own, considered to be
substantial and compelling circumstances justifying the imposition of a lesser sentence: section
51(3)( aA) of the Minimum Sentences Act. Radebe supra para 34. In Vilakazi above n 14 para 54,
Nugent JA noted that ‘there comes a stage at which the maximum sentence is proportionate to an
offence and the fact that the same sentence will be attracted by an even greater horror means only
that the law can offer nothing more.’
noted, courts cannot ignore the reality that South Africa is facing a pandemic of
sexual violence against women and children.16
[10] Society’s opprobrium has translated into the Minimum Sentences Act, which
by way of a prescribed, albeit discretionary minimum senten ce regime, has
drastically impacted upon the exercise of a court’s discretion in imposing a
sentence.17 Regrettably, that legislation seems to have achieved little in respect of
stemming the shocking number of child rape cases that are set down for hearing by
this court each year. As this court has noted previously, s ociety’s patience,
understandably, is wearing thin , and sentences imposed in child rape cases are
rightly scrutinised .18
[11] Mr Yali’s conduct has been found to fall within the purview of this Act . A court
should not for ‘flimsy reasons’ and ‘speculative hypotheses favourable to the
offender’ deviate from the minimum sentence prescribed, or apply their personal
notion of fairness.19 The fact that Mr Yali is a first offender does not, on its own,
necessarily warrant a lesser sentence. The question remains whether there are
substantial and compelling reasons , on the whole, to justify a lesser sentence than
the minimum sentence prescribed.
Analysis
[12] All the circumstances of the case must be considered to determine whether
the imposition of a minimum life sentence is proportionate to the particular offence.20
This includes Mr Yali’s personal circumstances, as well as th e undeniable impact of
the crime on the young complainant. The nature of the crime must also be
considered, together with the interests of society, seasoned with a measure of mercy
where appropriate , and bearing in mind the various purposes of punishment . Life
sentences are undoubtedly ap propriate sentences, in general terms, to impose upon
criminals who rape children. Courts will not shy away from imposing prescribed
16 The Director of Public Prosecutions, Grahamstown v TM 2020 JDR 0652 (SCA) (TM) para 15.
17 S v September [2014] ZAECGHC 38 para 8.
18 See S v Botha [2023] ZAECMKHC 52 para 12.
19 S v PB 2011 (1) SACR 448 (SCA) para 21; Matyityi above n 10 para 23.
20 Vilakazi above n 14 para 15.
minimum sentences whenever this is warranted.21 The court is also cognisant that a
finding of an absence of substantial and compelling circumstances will result in the
gravest of sentences being passed and that the consequences of this are profound,
effectively removing an individual from society.22 It has been noted previously that
this requires a meticulous we ighing of all relevant factors before a decision to impose
it can be justified.23
[13] The aggravating features of the matter are undeniably severe. The rape of
vulnerable victims, such as extremely young children, have always been an
aggravating feature of r ape. Every child is meant to enjoy the constitutional rights to
be protected from maltreatment, abuse and degradation, to freedom and security,
which includes the right to be free from all forms of violence and to have their privacy
and dignity respected a nd protected.24 Even though the physical effects of the rape
were relatively minimal, t he significant psychological effect on the complainant , past
present and future, has already been described. It is also relevant that a lthough Mr
Yali has been convicted of one count of rape, the evidence revealed that he
penetrated the complainant twice, per anum and per vaginam . The complainant and
another child witness were forced to relive the incident given Mr Yali’s failure to
accept responsibility for his conduct.
[14] The factors relied upon by Mr Yali as substantial and compelling have been
considered in their totality. The main factors in his favour are that he is a first
offender who was 21 or 22 years of age at the time of the incident . Other factors ,
including that the rape was carried out seemingl y spontaneously and
opportunistically on a single occasion, carry less weight when given proper
consideration. While Mr Yali’s very low level of education is not unusual , it combines
with his lack of employment and independence, as well as his drug problem , so that
he presents as an unsophisticated individual. Applying the test in S v Matyityi , but
unlike the facts in that matter, the available evidence justifies the conclusion that his
level of immaturity at the time was such that this constitutes a genuin e mitigating
21 S v Zitha 1999 (2) SACR 404 (WLD) at 418 h-I, as quoted in S v B [2022] ZAECGHC 12 para 18.
22 S v Bull 2001 (2) SACR 681 (SCA) para 21.
23 S v Dodo 2001 (1) SACR 301 (E).
24 Ss 28(1)( d), 12(1)( c) 14 and 10 of the Constitution of the Republic of South Africa, 1996.
factor in the present circumstances.25 There is no basis for suggesting any remorse
or appreciation of the trauma he has caused the complainant, or the fact that this will
be long -lasting . It is so that there is no evidence of any threat towar ds the
complainant, or indeed the other child witness who testified, or any indicati on of
gratuitous violence during the commission of the offence . I have also considered the
lengthy period of time already spent in custody and the reason for this.
[15] The fact that a prescribed sentence is considered disproportionate is itself a
basis to find that there are substantial and compelling circumstances to warrant a
departure from a prescribed sentence.26 As Goosen J held in S v Weideman :27
‘Life imprisonment is the most severe sentence that can be imposed by a
court. For this reason it is, generally speaking, reserved for the most serious
and egregious criminal acts. It is also reserved for those instances where the
criminal poses a clear and present danger to th e society and where there is
little or no prospect of rehabilitation of the criminal and reintegration of that
individual into society. This does not however mean that a court should keep
something in reserve on the basis that some more serious manifestati on of
the crime can be imagined. It means only that the sentence of life
imprisonment must be proportionate to the nature of crime for which it is
imposed.’
[16] On the whole, following consideration of the nature of the offence, its impact
on the complainant, the interests of society and Mr Yali’s personal circumstances , I
consider the re to be sufficient grounds to warrant departure from the prescribed
minimum sentence in this instance . Nowithstanding the various aggravating
considerations highligh ted, i t would, in my view, be unjust and disproportionate to
impose a life sentence on Mr Yali, particularly given his clean record and age at the
time of the offence, coupled with his personal circumstances, considered
25 Matyityi above n 10 para 14.
26 See S v Weideman [2014] ZAECPEHC 62 (Weideman ) para 7.
27 Ibid para 14.
cumulatively . These circumstances are entered into the record as substantial and
compelling on the facts of this case .28
[17] The court is now enjoined to consider an appropriate sentence and must
exercise a reasoned discre tion in evaluating the various relevant factors highlighted
above in order to arrive at a proportionate outcome. It goes without saying that the
task is a complex and onerous one , involving various competing considerations . The
requirement of proportional ity applies equally in relation to cases where sentences
have been prescribed by legislation.29 It cannot be ignored that g ender -based
violence , including child rape, continues to devastate lives and negatively impact
upon families and communities . Sadly, many women, including children, live in
constant fear of precisely this type of occurrence . The remarks of the court in S v Ro
and Another30 are apposite:
‘The moral reprehensibility of rape and society’s abhorrence of this rampant
scourge are unquestioned. The most cursory scrutiny of our law reports bears
testimony to the fact that our courts have, rightly so, visited this offence with
severe penalties. This reprehensibility and abhorrence are so much more
pronounced in the instances of the rape of very young children, as is the case
here. … [T]he complainant was an innocent, defenceless and vulnerable
victim.’
[18] Given the circumstances, a lengthy sentence of direct imprisonment is
unquestionably warranted.31 But each situation is diff erent and the nuances of the
various considerations must be weighed. In coming to a decision, I have accepted,
that Mr Yali is a young man who committed a despicable single act , for which he has
expressed no remorse .32 He has never previously fallen foul of the law. The offence
he committed is by its nature extremely serious and involved gender -based violence .
While Mr Yali was a family relative of the complainat’s friend , it cannot be said that
28 Cf TM above n 16 para 12.
29 S v Fatyi 2001 (1) SACR 485 (SCA) at 488 f-g.
30 S v Ro and Another 2010 (2) SACR 248 (SCA) para 15.
31 See Seedat v S [2016] ZASCA 153 para 38 et seq , on the efficacy of restorative justice as an
inappropriate sentencing option in cases involving serious offences.
32 See Weideman above n 26 para 13.
he held a position of tru st similar to cases that have considered this as an
aggravating feature.33 I have also considered that the incident occurred away from
the child’s home. Leaving aside the physical injuries, the psychological impact is
likely to be long -lasting. Regrettably , as has previously been observed, no imposition
of punishment on the offender will restore the childhood that has been stripped from
the victim.
[19] Balancing the various considerations in the light of all the circumstances, and
bearing in mind the period in excess of two years already spent in custody, I
consider a sentence of 21 years imprisonment to be appropriate , giving Mr Yali some
opportunity to rehabilitate while punishing him heavily for his conduct and the harm
he has c aused to his victim and to society . Given the nature of the offence, various
other consequences emanating from legislation follow. These have been included as
part of the order.
Order
[20] The following sentence is imposed:
1. The accused, Hlumelo Yali, is sentenced to 21 years imprisonment in respect
of the conviction of rape involving a seven -year-old child.
2. In terms of section 50(2) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, the particulars of the accused, as a
convicted sexual offender, must be included in the National Register for Sex
Offenders.
3. In terms of section 120(4) of the Children’s Act 38 of 2005 and section 41 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007, the accused is declared to be unsuitable to work with children, and it
is directed that his particulars be entered in Part B of the National Child
Protection Register.
33 M v The State [2022] ZASCA 3 para 53.
_______________ __________
A. GOVINDJEE
JUDGE OF THE HIGH COURT
Heard : 20 February 2025
Delivered : 21 February 2025
Appearances:
Counsel for the State: Adv Hendricks
Director of Public Prosecutions
Makhanda
Counsel for the Accused: Mr Geldenhuys
Legal Aid South Africa
Makhanda