In the matter between:
RANDALL BOOYSEN
and IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Appeal Case No: A204/2024
Lower Court Case Number: PSOC71/2023
Appellant
THE STATE Respondent
Date of Hearing: 7 February 2025
Date of Judgment: 26 February 2025
JUDGMENT
PARKERAJ
Introduction
[1] The appellant stood arraigned in the Plettenberg Bay Regional Court on a charge
of contravention of Section 3 of the Sexual Offences Act, Act 32 of 2007, where he was
convicted for rape. He was legally represented at all material times and pleaded guilty in
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terms of section 112(2) of the Criminal Procedure Act, No. 51 of 1977. ('the Act"} on 12th
March 2024 he was sentenced to life imprisonment.
(2] The appellant noted an appeal against the sentence imposed in terms of section
309 (1)(a) of the Act, in terms of which he has an automatic right of appeal
Background
[3] On the day of the incident, he was consuming alcohol at a pub called Zanzibar.
Whilst walking home the minor child approached appellant and asked him for a five rand.
The appellant promised that he would give him one hundred rand in exchange for his
assistance. Whilst walking he stumbled and knocked the minor child over, resulting in the
minor child's fall. Thereafter the minor child claims that the appellant instructed him to lie
down on his stomach and pull his pants down, which according to the minor child he did
out of fear. The minor child suffered multiple penetrations. He was raped in his anus,
and after the minor child told him that he, the appellant is hurting him, he stopped and
proceeded to place his penis into the minor child's mouth, where he ejaculated.
(4] DNA evidence in another case connected the appellant to this rape. When the
Appellant was apprehended for the current crime, he was on parole in that case. This will
be dealt with more fully below.
Sentence
[5] It was argued that the court a quo over emphasized the seriousness of the crime
and the interests of the community. More specifically, that the appellant be considered
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for a counselling program in order for him to deal with an undisclosed traumatic
experience he had suffered.
[6] The factors that were taken into account about the appellant was that he was 39
years of age at the time he was sentenced, employed, unmarried and has an adult
daughter. He was in custody for the period of 11 months, however this is so because he
has committed this offence whilst he was out on parole which was yet to expire.
[7] When considering what constitutes an appropriate sentence, regard ought to be
had to the well-known triad of sentencing, 1 the offender (the personal circumstances of
the accused), the interests of society, and the seriousness of the offence. A sentence
must be tailored (individualised) , and each matter must be dealt with on its own particular
facts, tempered with mercy, and punishment must ultimately fit the true gravity of the
offence. The interests of society are never well served by too harsh or too lenient a
sentence necessitating a balance to be struck.2
Discussion
[8] The perusal of the transcript of proceedings revealed that the appellant's personal
circumstances were considered by the learned Magistrate when dealing with the issue of
substantial and compelling circumstances, and found no circumstances warranting a
deviation from the prescribed minimum sentence.
1 SI/ Zinn 1969(2) SA 537 (A) at 540 G
2 Samuels v S 2011 SACR 9 (262/03} [2010 ZASCA 113]; 2011 SACR 9 (SCA) (22 September 2010) para 9
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[9} The appellant's counsel conceded that imprisonment is indeed justified. However,
it argued for a lesser sentence than the period of direct imprisonment imposed as it was
not commensurate with the appellant's alleged traumatic experience which necessitates
counseling. Furthermore, the appellant relied on two cases that of S v MN 3 and S v
Moswathupa.4 In the fomier case the court considered the rehabilitation of the appellant.
In the former matter, the facts were distinct from the current case. No weapon was used
and the victim suffered no physical injury. The victim impact report in the present matter
indicates complainant experienced considerable trauma. The Supreme Court of Appeal
in the Moswathupa case held that the prevalence of the sentence may warrant a sentence
that will serve as a deterrent to others, but it cannot justify a sentence which will destroy
the wrongdoer. In the current appeal the appellant was a repeat offender and the DNA
linked him to the current matter. Had the appellant not been convicted on the other matter,
and the DNA sampling matched him to this offence, the complainant would not have seen
the wheels of justice being realized.
(1 O] It is a well-known fact that the trial court has the preeminent authority to determine
an appropriate sentence. 5 The appellant in this appeal request the court to consider an
element of mercy, arguing that the current sentence stands to be set aside and be
replaced with a lesser sentence. In the absence of compelling and exceptional grounds
to do so, a lesser sentence will send out a wrong message to society at large who already
live in an environment in which they may find themselves vulnerable to victimization .
3 2011 (1) SACR 286 (ECG)
4 2012 (1) SACR 259 (SCA)
5 S v Gule 2019 JDR 0173 (ECB) para (8). Also see Thwala v S {A175/2023) (2024) ZA GPPHC 224 (29 January 2024).
See also Fielies v S [2015) JOL 33715 (SCA)
s
[11] A Court of Appeal will interfere where it can be inferred that the trial court acted
irrationally and illegally resulting in a significant disparity in the imposed sentence. In such
cases, the court will alter the sentence. 6
[12] The applicable principles on sentencing were dealt with in S v Ma/gas, 7 affirmed in
S v Dodo;8
'if the sentencing court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in 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'.
[13] A Court of Appeal will not easily interfere with a sentence just because it would not
have imposed the same sentence R v S. 9
[14] Insofar as minimum sentences are concerned, a court no longer imposes any term
it deems appropriate for the particular crime as parliament had enacted the minimum
sentencing legislation.1° Courts are therefore bound to impose the prescribed minimum
sentences unless there are genuinely compelling and convincing justification for
deviation.
6 S v Anderson 1961(A) See Kekana v S (2013) JOL 30320 (SCA). Also see Gabriel v S (2010) 2 All SA 212 (SCA). See
also Bliss Brands (Pty) Limited v Advertising Regulatory Board NPC and others 2023 (10) BCLR 1153 (CC)
7 S v Malgas 2001(2) SA 1222 (SCA) para 25
s S v Dodo 2001 (3) 282 (CC) para 40.
9 1958 (3) SA 102 at 104 A
10 S v Matyityi (695/09) ZASCA 127 (30 September 2010) para 11
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[15] In weighing the interests of the community, the personal circumstances of the
accused, the nature of the crime, the vulnerability of the complainant, the statistics for
rape shows us that high number of rape offences must be considered. Therefore, it is
imperative to impose sentences that safeguard children and women against the heinous
acts and atrocities of sexual offences as stated in S v Blaauw.11 The statistics shows that
rape is a cancer in our society which necessitates decisive action from the legislature as
well as our courts.12 Given the nature of the rape (multiple penetrations), the sentence
does not induce a sense of shock. The minor child was only 11 years of age and the victim
impact report shows that force was used and that the experience was traumatising. The
appellant was only arrested on this charge because the DNA results became available
linking him to the offence.
(16] When determining an appropriate sentence, it is essential to recognise that
imposing a sentence that is excessively lenient conveys a misleading message to citizens
who are victims of crime and who contend with its widespread prevalence in their
communities. In evaluating all these circumstances, a suitable sentence of life
imprisonment is deemed appropriate, given the vulnerability of the child who was looking
for five rand. The argument raised with regard to the pre-existing trauma was not
11 2001 (2) SASV 255(C).
12 A report released by Statistics South Africa titled Child Series Volume II: Crime Against Children shows that rape
cases for children increased by 6,3 percentage points between 2015/16 and 2019/20, whilst both common assault
and assault with grievous bodily harm (GBH) decreased by 2,1 and 3,5 percentage points respectively. Moreover,
sexual assault cases for children increased by 1,4 percentage points. Crimes against children is a grave concern, as it
significantly affects the mental, physical, and emotional health of children. Healing from the trauma of abuse can
be a prolonged process spanning several years. Ensuring children are safeguarded against any type of violence is a
fundamental right secured by the Convention on the Rights of the Child. In South Africa (SA), there are high rates of
reported violent offenses, encompassing murder, rape, aggravated assault, robbery, property crime, and vehicle
hijacking. Among these, rape emerged as the most frequently reported crime to law enforcement for children aged
17 and below between 2015/16 and 2019/20, followed by common assault and assault resulting in GSH. See
https://www.statssa.qov.za/?p"'17023 Accessed on 19 February 2025
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disclosed to the court a quo and therefore it cannot be addressed fully. We may make
assumptions regarding the causes of the alleged trauma, however, without any evidence
tendered for the trauma, it is of no consequence, suffice to send a caution to the
Department of Correctional Services to consider his constitutional right to health.13 The
appellant should be afforded the necessary health care by affording him the necessary
counseling and therapy while he is incarcerated.
[17] The learned Magistrate raised the concern that the appellant is a risk and a danger
to the community given that he "committed this offence once, he then committed it again
while he was under parole". We are concerned that he may reoffend the dignity and
privacy of other prisoners if this right to health is not acknowledged. In an effort to alleviate
the trauma that the victim has experienced, the court may order therapy, as was done in
the case of S v SN.14 The court mandated counselling for a two-year period, with a
monthly progress report to the court. It is not however our view that a monthly progress
report be made available to us. On the other hand, given the minor child's trauma the
prosecution is urged to consider counselling for the minor child on an ongoing basis.
[18] In Carmichele v The Minister of Safety and Security, 15 the Constitutional Court
overturned the court a quo's decision, concluding that the state could be held culpable for
damages. This case involved a woman who was attacked by a man with a pick handle.
13 Section 27 (1) (a) and (2)
14 [20221 ZAECGHC 35
15 carrnichele v The Minister of Safety and Security (CCT 48/00) [2001) ZACC 22; 2001 (4) SA 938 (CC); 2001 (10)
BCLR 995 (CC); 2002 (1) SACR 79 (CC) (16 August 2001)
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The accused had been released from jail after being arrested for attempted murder and
rape.
"She claimed members of the South African Police Service and the public prosecutor at
Knysna had negligently failed to comply with a legal duty they owed to her to take steps
to prevent harm being caused to her'16.
[19] In the above matter, the Constitutional Court also made reference to Section
179(4) of the Constitution of the Republic of South Africa. The matter was referred back
to the High Court for it to continue with the trial.
[20) In applying the Carmichele case to the current appeal we are acutely aware and
we are concerned of other matters where accused who are on parole reoffend.
[21] Greater attention and care must be had when parole boards consider parole. This
current matter is one of those circumstances where if ever parole is considered, the
modus operandi employed by the Appellant, his previous conviction of rape and the
lifelong trauma that the victim will be saddled with, cannot be glossed over lightly. The
Registrar of this court must furnish a copy of this judgment to the Department of
Correctional Services (hereafter referred to as "DCS"), and the National Council of
Correctional Services (hereafter referred to as "NCCS"). The NCCS is a statutory body
that advises the South African Minister of Justice and Correctional Services on
Correctional System Policy and Sentencing. In thi~ regard the provisions of paragraphs
15, 17, 20 and 21 of this judgment is drawn to the attention of DCS and NCCS.
16 Ibid para (2)
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[22] In the result there is no alarming, startling or disturbing disparity between the
sentence that the court imposed and that which an appeal court would impose and
therefore interference is not justified.
[23] In the result, the following order is proposed:
1. The appeal is dismissed.
2. The imposed sentence is confirmed.
3. The Registrar of this court must furnish a copy of this judgment to the
Department of Correctional Services and the National Council for Correctional
Services and of the provisions of paragraphs 15, 17, 20 and 21 of this judgment.
I agree, and it is so ordered. Acting Judge of the High Court
~-
ERASMUS, J
Judge of the High Court
Appearances
Appellant's Legal Representative:
Counsel for the Respondent: Adv Ntombifuthi Kunju
Legal Aid: Cape Town
Adv M Engelbrecht
Office of the OPP: W Cape 10