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IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIV ISION, MAKHANDA )

Case No.: CC07/2025
Reportable Yes/No

In the matter between :

THE STATE

versus

M[...] S[...] ACCUSED
__________________ _____________________________________ _____ ____

JUDGMENT ON SENTENCE
________________________________________________________________

Cengani -Mbakaza AJ

Introduction

[1] In his book, CR Snyman notes at page 10 ,1 that sentencing constitutes a
profound infringement on the accused’s fundamental human rights, including

1 Criminal Law CR Snyman sixth edition at page 10.

freedom of movement, privacy and dignity. However, in a society that values human
rights like ours, this infringement necessitates a robust justificat ion.

[2 ] As Hogarth2 appropriately notes that in the entire criminal process there is no
decision more complex and challenging than that faced by a sentencing judge.
Despite the intricate and daunting challenges we face during sentencing stage, we
must not succumb to despair. Our courts have clearly established guidelines on how
to approach the sentencing of offenders.

[3] To begin with, it is significant to acknowledge the purpose of punishment. The
retribution theory which is distinct from revenge pos its that the severity of
punishment should be proportionate with the severity of the harm caused. This
approach seeks to balance the scales of justice by holding the offender accountable
to the same degree as the harm inflicted on the victim. By so doing, retribution
expresses solidarity to both the victim, while also upholding the principles of justice.3

[4] The prevention theory of punishment enables the court to proactively prevent
crime, especially to serious offences such as the one currently under consideration.
Additionally, the concept of deterrence plays a crucial role, comprising both
individual and general deterrence. The society expects the courts to discourage
offenders from committing similar crimes, thereby preventing the no rmalisation of
criminal behaviour. Furthermore, the rehabilitation of the offender is one of the key
elements which aims at reforming the offender to become a normal law -abiding
member of the community once again.4

[5] As early as 1969, the Appellate Div ision5 expounded what is commonly
known a s a triad approach , a foundational principle that remains relevant even
today. This approach consists of the nature of crime, the personal circumstances of
the offender as well as the interest of the society. With the advent of our
constitutional democracy the law has evolved to place the victims at the centre of
criminal justice system in particular during the sentencing process. This development

2 Hogarth, Sentencing as a Human Process (1971) in regard to sentencing in Canada .
3 Ibid 1, page 12 -13.
4 Ibid 1, page 17.
5 S v Zinn 1969 (2) SA 537 (A).
resonat es with the notion that everyone is equal before the law and equal protection
of the law.6 The Supreme Court of Appeal (SCA) in S v Matyityi7 strengthened this
proposition.

[6] In the present matter, I am mandated to sentence the accused following a
conviction of rape which is in contravention of s 3 of the Criminal Law Sexual
Offences And Related Matters Amendment Act 32 of 2007 (SORMA) . As evident
from the findings in the main judgment, the accused perpetrated multiple instances
of anal sexual intercourse upon an 11 -year-old girl child. Pursuant to Section 51(1),
Part 1 , Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (CLAA) , the
prescribed sentence for this offence is i mprisonment for life. However as required by
the law, the court may only deviate if the accused shows the existence of substantial
and compelling circumstances.

[7] The substantial and compelling circumstances are not define d, however, the
SCA in S v Malg as8 held:

‘[25] E. The legislature has however, deliberately left it to the courts to decide
whether the circumstances of any particular case call for a departure from the
prescribed sentence. While the emphasis has shifted to the objective gravity of
the type of crime and the need for effective sanctions against it, this does not
mean all other considerations are to be ignored. F All factors (other than those
set out in D above) traditionally taken into account in sentencing (whether or
not they diminish moral guilt) thus continue to play a role; none is excluded at
the outset from consideration in sentencing process . G The ultimate impact of
all circumstances relevant to sentencing must be measured against the
composite yardstick(“substanti al and compelling” and must be such as
cumulatively justify a departure from the standardised response that the
legislature has ordained… ’

[8] The SCA in Malgas9 extensively analysed the concept of substantial and
compelling circumstances. At paragraph 25D , the court emphasised that deviation

6 Section 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution).
7 2011 (1) SACR 40 (SCA) para 16 -17.
8 [2001] ZASCA 30.
from the prescribed sentences should not be based on frivolous o r flimsy reasons .
In this regard, the SCA’s stance is that speculative hypothesis favourable to the
offender, sympathy, aversion to impris oning first -time offenders and personal doubts
about the efficiency of the sentencing policy are all irrelevant considerations.

[9] I now proceed to deal with all the surrounding circumstances of this case.

(a) The nature and seriousness of the offence

[10] The list of aggravating circumstances presented by Ms Van Rooyen , counsel
for the state is not overstated. A child born on 14 June 2013 was subjected to sexual
abuse by her paternal uncle, who breached the trust and authority placed in him as a
father figure. The accused was entrusted by the family, including the complainant’s
mother , who would often leave her minor children in his care.

[11] Notably, the accused’s position as a pillar of strength in the family, due to the
complainant’s mother’s physical disability, enabled him to conceal the crime. The
trauma and the pain inflicted on the child, which is exacerbated by the
circumstances, including emotional distress caused to the mother upon learning of
the abuse , can hardl y be over -emphasised.

[12] According to the report compiled by Ms Stamper, a clinical psychologist
(Exhibit “F”), following the traumatic incidents of rape, the complainant has
demonstrated significant behavioural changes. Specifically, the report notes that the
complainant now experiences intense anger towards her mother and frequently
engages in physical altercations with friends, behaviours that were previously
uncharacteristic of her.

[13] The complainant expresses feelings of guilt and self -blame fo r the traumatic
experience stating that she should have prevented the repeated instances of sexual
abuse. Furthermore, after disclosing the incident s , she became frustrated with
having to repeatedly recount the events, which added to her distress.


9 Fn 8 above.
[14] According to Ms Stamper’s assessment, the child struggles significantly with
trust issues and feeling of unsafety. There is a high risk of her developing rebellious
behaviour, running away from home and experiencing increased violence and
anxiety. Further more Ms Stamper notes that the child is vulnerable to developing
depression, suicide and other long -term consequences.

(b) The personal circumstances of the accused

[15] Mr Solani , counsel for the defence presented the accused’s personal
circumstances as follows: The accused was born on 05 April 1987. He is currently 37
years of age, residing at Tambo Village in Komani. He is unemployed residing with
his mother, aged 67. His father died when he was of tend er age. He failed grade 12
and struggled to find a job. The accused is a first offender in that no previous
convictions were proved against him.

(c) The interest of the society

[16] Counse l for the state reminded the court to take cognisance of the Preamble
of SORMA. This preamble emphasises the importance of protecting the rights of
victims, particularly women, children and people with mental disabilities. The
preamble highlights the need to recognise the rights to equality10, privacy, dignity11,
freedom of and security of persons, which includes the right to be free from all forms
of abuse.12

[17] As highlighted above, i t is the expectation of the society that offenders be
punished for the ir criminal conduct. Notwithstanding this, it is imperative to note that
punishment that is excessive serves neither the interest of justice nor the society.13
By considering the interest of the society the court aims to balance the need for
punishment with the broader social implications of the sentence .


10 Section 9 of the Constitution.
11 Section 10 of the Constitution.
12 Section 12(1) of the Constitution.
13 S v Scott -Crossley 2008(1) SACR 223 (SCA) at para 35.
[18] Sente ncing is one of the measures in maintaining law and order, upholding
societal norms and promoting accountability. Appropriate sentences reinforces public
trust in the criminal justice system. Therefore, the courts are duty -bound to
demonstrate that the criminal justice system is fair and effective to upholding the rule
of law. In S v Banda14 Friedman J , held:

‘The court fulfils an important function in applying the law in the community. It
has the duty to maintain law and order. The court operates in society and its
decisions have an impact on individuals in the ordinary circumstances of daily
life. It covers all possible ground. There is no space in life it does not include.
The court must al so by its decisions, and imposition of sentence, promotes
respect for the law, and in doing so must reflect the seriousness of the offence,
and provide just punishment for the offender while taking into account the
personal circumstances of the offender. The feelings and requirements of the
community, the protection of society against the accused and other potential
offenders must be considered, as well as the maintenance of peace and
tranquillity in the land needs to be taken into account. ’

[19] Children are vulnerable members of the society, and as upper guardians,
courts bear the responsibility to safeguard their best interests. In De Reuck v DPP
WLD15 Epstein AJ held:

‘The fact that the Constitution regards a child’s best interests as of paramount
importance must be emphasized. It is the single most important factor to be
considered when balancing or weighing competing rights and interests
concerning children. All competing rights must de fer to the rights of children
unless unjustifiable. Whilst children have a right to inter alia, protection from
maltreatment, neglect, abuse or degradation, there is a reciprocal duty to afford
them such protection. Such a duty falls not only on law enforc ement agencies
but also on right thinking people and, ultimately the court, which is the upper
guardian of all children.’

Discussion

14 1991 (2) SA 325 (B G).
15 2003 (1) SACR 448 (WLD) @ 457b -d.

[20] Mr Solani argued that unlike in Mahomotsa16 where a knife and a firearm were
used in the perpetration of the crime of rape, no weapon was used in this matter.
The accused has been in custody for approximately five months awaiting his trial.
The complainant suffered no physical injuries. All these fa ctors, so he submitted,
combined with the accused personal circumstances as reflected above, constitute
substantial and compelling circumstances.

[21] In contrast, Ms Van Rooyen argued that considering the seriousness of the
rape charge combined with all the aggravating features, there are no substantial and
compelling circumstances that would cause the court to deviate from the sentence
prescribed.

[22] There is no doubt that rape is a very serious offence. In S v Abrahams17
Cameron JA made a very powerful statement regarding a rape charge committed by
a family member. The court held:

‘Of all the grievous violations of the family bond the case manifests, this is the
most complex, since a parent, including a father, is indeed in a position of
authority and command over a daughter. But it is a position to be exercised with
reverence, in a daughter’s best interests, and for her flowering as a human
being. For a father to abuse that position to obtain forced sexual access to his
daughter’s body constitutes a deflowering in the most grievous and brutal
sense …. and it constituted an egregious and aggravating feature of the
accused’s attack upon his daughter.124/5: Family member is also a member of
the wider public and equally deserv ing as the rest of the public of protection
against rapists. Rapist may think the home offers him a safe haven for his
crime, with an accessible victim, over whom he may feel he can exercise a
proprietary entitlement. The family victim may for reasons of l oyalty or necessity
feel that she must conceal the crime and may internalize the guilt or blame
associated with the crime, with lingeringly injurious effects. In particularly so
when the victim is the rapist’s own daughter and more so when she is of tender

16 S v Mahomotsa 2002 (2) SACR p 435-436 para-C-E.
17 2002 (1) SACR 116 (SCA) at para 123.
years. Incestuous – deep social and religious inhibitions and stigma – effects
may linger longer than with an extra familial rape.’

[23] The above statement encapsulates some of the consequential features of
this rape charge as highlighted by the clinical psychologist. In my view, t he
accused’s position of trust and authority was a potent weapon that enabled him to
exploit the child. We h ave reached a stage where we need to recognise that rape is
a heinous crime that cannot be measured on a scale of brutality. Every instance is
devastating and its impact should no t be diminished by comparison s. In my opinion ,
the argument that t his rape ch arge is less serious because there was no physical
weapon used is devoid of merit.

[24] Moreover, given the gravity of the offence and its detrimental effect on
society, the four - month period that the accused spent in custody is insignificant.
Pursuant to the provisions of s 51(3)(Aa)(ii) of the CLAA, the absence of injuries in a
rape case does not constitute substantial and compelling circumstances. In any
event, in th is matter the complainant suffered excruciating pains and dilatation of her
anal orifice. In terms of the clinical psychologist’s report, she battles with controlling
bowel mov ements and managing incontinence, as a result of the ordeal.

[25] Upon consideration, I conclude that the circumstances presented by the
accused before this court are flimsy reasons that, as indicated by the SCA in
Malga s18, cannot constitute substantial and compelling circumstances.

Order

[26] Having considered all the factors of this case , the following sentence is
imposed:

1. In terms of sections 51(1) Part 1 of Schedule 2, of the Criminal Law
Amendment Act 105 of 1997, the accused is sentenced to imprisonment for
life.


18 Fn 8 infra.
2. 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 unsuitable to work with children . It is
directed that his particulars be entered in Part B of the National Child
Protection Register.

3. 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 must be
included in the National Register for Sex Offenders.

4. In terms of section 103(1)(g) of the Firearms Cont rol Act 60 of 2000 , the
accused remains unfit to possess a firearm.


______________________ _
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COU RT


APPEARANCES :

For the state : Adv Van Rooyen
DPP, Makhanda

For the accused : Mr Solani
Legal Aid -SA, Makhanda


Date Heard : 27 March 2025
Date Delivered : 28 March 2025