SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – EAST LONDON CIRCUIT COURT )

Case No: CC59/2024

In the matter between:

THE STATE

and

S[...] G[...] Accused

JUDGMENT ON SENTENCE


Metu AJ

INTRODUCTION

1. On 21 January 2025, t he Accused was convicted of rape on diverse
occasions in that he had sexual intercourse with a nine (9) year old girl per
anum and per vaginam without her consent and against her will .

2. The Accused was seventeen (17) years of age when the first incident of
sexual intercourse per anum took place.

3. Consequently , Mrs Mthini applied to have a probationer’s/ pre-sentence report
by a Social Worker , which application was granted.

4. The matter was postponed and scheduled for sentence proceedings from 1 to
4 April 2025 .

5. When the matter resumed according to the schedule referred to above, two
(2) reports were presented , one being the Complainant ’s Psychological
Report and the other the Accused Pre-Sentence Report. These were
accepted and marked as exhibits “E” and “F” respectively.

6. By agreement between Counsel for the State and for Defence , the authors of
the reports were not to be called to testify on the m, as they accepted the ir
conten ts.

7. It bears mention that the State in the indictment, invoked provisions of Section
51(1) of the Criminal Law Amendment Act 105 of 1997 (“CLAA”) because the
victim is a girl under the age of eighteen (18) and was raped more than once.

PREVIOUS CONVICTIONS

8. The State submitted a report from the South African Police Service Criminal
Record System (“SAP 69”) showing that the Accused has no record of
previous convictions. This record was accepted as Exhibit “D” in the bundle of
documents.

DISCUSSION

9. Mrs Mthini s ubmitted that the Court should consider the Accused's
youthfulness and lack of maturity . At the time of the first incident the Accused
was seventeen (17) years of age.

10. She conceded that on the second occasion, the Accused had attained
majority, as he had turned eighteen (18).

11. Mrs Mthini contended that the Accused left school because he had to look
after his mother, whose health was deteriorating. According to Mrs Mthin i, the
Accused was responsible for looking after his bedridden mother and his young
niece (the Complainant) before he even turned seventeen (17).

12. The accused is a first offender. Mrs Mthini further highli ghted that the Accused
has been in custody for appro ximately a year as of his sentencing.

13. She averred that the Accused is a 19 -year-old boy who was arrested before
he went to initiation school, pursuant to the customs and practices of
amaXhosa. After serving his sentence, he will still have to attend to initiation
even at a ripe age.

14. Mrs Mthini stated that the evidence from the nurse (Ms Pumla Tande) was
that the wide hymenal orifice was suggestive of grooming. Mrs Mthini was of
the view that this observation and analysis by the nurse meant there was no
vaginal penetration.

15. Mr Bartman stated that the heinous crime of rape is prevalent , and this was
perpetrated against a young and innocent girl who could not defend herself .

16. He further submitted that the Accused, being an uncle to the Complainant
instead of being a protector, was the perpetrator of the crime .

17. Mr Bartman countered by saying the Court must consider the age of the child
victim, who was nine (9) years of age and that she was raped more than once.

18. The Accused showed no remor se.

19. According to Mr Bartman the legal requirement of penetration was met.

20. Mr Bartman advanced the proportionality principle established and entrenched
in numerous Constitutional Court decisions, arguing that the Accused's
sentence must be proportionate to the gravity of the offending behaviour.

21. The report by Social Work Practi tioner , Ms Nomonde Precious Stamper
(“Ms Stamper”) depicts the Accused as a young ster who did not display any
behavioural problems before these incidents took place. The Accused left
school while in grade 7 to look after his sickly mother and niec e (the
Complainant).

22. In her report , Ms Stamper evaluated various sentence options. She
recommended direct imprisonment, considering that the Accused is in denial.
According to Ms Stamper , the Accused can benefit from the various
Rehabilitation and Victim/Offender Dialogue Programmes offered at the
Correctional Centres.

23. The report by Ms Pumza Sakasa (“Ms Sakasa”), a Clinical Psychologist,
records that the Complainant reached her developmental milestones at
expected times as a child. She has age -appropriate friends and can assist
with certain household t asks at home .

24. Ms Sakasa further records that the Complainant after the rape incidents often
displays a sad and depressed mood main ly when the subject of rape incidents
is brought up. She becomes tearful or cr ies without much provocation .

25. Other significant changes regarding the Complainant’s behaviour that were
observed after the rape incidents are:

25.1. she easily gets startled and frightened, such that she does not like
people talking to her in a loud voice;

25.2. initial ly, the Complainant had a poor appetite, which resulted in weight
loss. Recently, she has been eating too much, as if she is not fully
aware of the act and is just absent -mindedly engaging with the
process.

25.3. she has developed trust issues and gets flustered when approached
by male figures, though she eventually is able to contain herself.

26. It cannot be controverted that rape, especially of a minor child is a serious
offence. In this matter , there is evidence that on both occasions , there was an
axe that the Accused put next to the bed where the Complainant was raped .
However, there is no evidence that this was use d in any manner that further
traumatised the Complainant.

27. The clinical report (“J 88”), does no t give much assistance in depicting any
serious injuries. It must be borne in mind that the Complainant was taken to
the medical facility after a relatively long period after the occur rence of rape
on the second occasion.

ANALYSIS

28. In S v Zinn1 the following triad was developed :

28.1. the crime;
28.2. the offender; and
28.3. the interests of society.

29. There is a prevalence of rape of children. In as much as t he age gap between
the Accused and the Complainant is about nine (9) years , the Accused, on his
version, was looking after his sick ly mother, who was bedridden and also the
Complainant. The Accused is a maternal uncle to the Complainant

30. The repeated conduct by the Accused in violating the minor child victim is an
aggravating factor , more so that the second incident occurred when the

1 1969 (2) SA 537 @ 540 G: where Rumpff JA aptly stated: ‘What has to be considered is the triad
consisting of the crime, the offender and the interest of society.’
Accused had attained majority . In S v Matyityi2, the appeal Court increased a
sentence of twenty -five (25) years to life imprisonment on the basis, inter alia ,
that the Respondents conducted themselves with flagrant disregard for the
sanctity of human life or individual physical integrity. The Court found that the
respondents acted in a manner that was despicable in any civilised society,
particularly relating to the protection of the rights of all persons, including
women. In this matter , I extend this expression to include children.

31. In Matyityi it was held that sentences that are imposed should reflect that the
law takes the victims’ trauma into account.

32. Lewis JA as a scribe in Nkomo v The State had this to say3:

“…In Rape, when committed in circumstances where the victim was
raped more than once, whether by the accused or by any co -perpetrator or
accomplice, attracts a minimum sentence of life imprisonment unless the court
is satisfied that substantial and compelling circumstances exist which justify
the imposition of a lesser sentence. ”

33. The learned Judge considering the dicta in Malgas in paragraph 3 aptly
stated4:

“…In Malgas, however, it was held that in determining whether there are
substantial and compelling circumstances, a court must be conscious
that the legislature has ordained a sentence that should ordinarily be
imposed for the crime specified and that there should be truly convincing
reasons for a different response. But it is for the court imposing sentence to
decide whether the particular circumstances call for the imposition of a lesser
sentence. Such circumstances may include those factors traditionally taken
into account in sentencing – mitigating factors – that lessen an accused’s
moral guilt. These might include the age of an accused or whether or not he or

2 2011 (1) SACR 40 (SCA).
3 Nkomo v The State 2007 (2) SACR 198 (SCA) @ para 1.
4 Loc cit @ para 3.
she has previous convictions. Of course , these must be weighed together with
aggravating factors. But none of these need be exceptional. ”

34. In para graphs 15 to 16 of Nkomo, Lewis JA makes a substantive analysis of
how the test should be applied to determine whether substantial and
compelling circumstances were present. He writes:

“In S v Mahomotsa , this court pointed out that even in the case of a serious
and multiple rape , a sentence of life imprisonment need necessarily be
imposed. If there are compelling and substantial circumstances …

It perhaps requires to be stressed that what emerges clearly from the
decisions in Malgas and Dodo is that it does not follow that simply
because the circumstances attending a particular instance of rape
result in it falling within one or other of the categories of rape
delineated in the Act, a uniform sentence of either life imprisonment or
indeed any other uniform sentence must or should be imposed. If
substantial and compelling circumstances are found to exist, life
imprisonment is not mandatory nor is any other mandatory sentence
applicable. What sentence should be imposed in such circumstances is
within the sentencing discretion of the trial Court, subject of course to
the obligation cast upon it by the Act to take due cognizance of the
Legislature's desire for firmer punishment than that which may have
been thought to be appropriate in the pa st.
….
Of course, one must guard against the notion that because still more
serious cases than the one under consideration are imaginable, it must
follow inexorably that something should be kept in reserve for such
cases and , therefore , that the sentence impose d in the case at hand
should be correspondingly lighter than the severer sentences that such
hypothetical cases would merit. There is always an upper limit in all
sentencing jurisdictions, be it death, life or some lengthy term of
imprisonment, and there w ill always be cases which, although differing
in their respective degrees of seriousness, nonetheless all call for the
maximum penalty imposable. The fact that the crimes under
consideration are not all equally horrendous may not matter if the least
horren dous of them is horrendous enough to justify the imposition of
the maximum penalty. ”
[my underlining].

35. That being said, the rapes concerned here, though very serious, cannot be
classified as falling within the worst category of rape. Having regard to the
evidence in totality, and considering whether substantial and compelling
circumstances are present justifying a departure from the prescribed
sentence, I find that there are substantial and compelling circumstances
warranting deviation from the prescribed minimum sentence

36. In deciding on an appropriate sentence, I have to consider certain mitigating
and aggravating factors in conjunction with the Zinn triad to establish whether
certain factors, such as the prospects of rehabilitation, can be viewed as
“substantial and compelling” during the sentencing process .

37. Concerning the evidence presented before this Court, I evaluated it
cumulatively to establish whet her there were or were not substantial and
compelling circumstances as envisaged in Section 51(3) of the CLAA to
deviate from the minimum sentence for this type of crime. I find that t here are
substantial and compelling circumstances that the permit applic ation of
Section 51(3) of the CLAA in that the prescribed minimum sentence not be
applied.

38. Section 28(2) of the Constitution of the Republic of South Africa Act, 108 of
1996, enjoins the Courts to consider children's interests paramount in any
matter involving them.

SENTENCE

39. As a result, I make the following order:

39.1. The Accused is sentenced to eighteen (18) years imprisonment.

39.2. The Accused’s personal details will be included in the National
Register for Sexual Offenders established under section 42(1) of the
Criminal Law Sexual Offences and Related Matters Amendment Act
32 of 2007.


_________________________________
B METU
ACTING JUDGE OF THE HIGH COURT


APPEARANCES:

for the State: Adv. Bartman
instructed by: Director of Public Prosecutions
Mkhanda
for the Defence: Adv. Mthini
instructed by: Legal Aid Board SA
Qonce

Date of hearing: 02 April 2025.
Date of Delivery: 04 April 2025.