IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE : Y~ / NO
(2) OF INTEREST TO OTHER JUDGES: W'S/NO
(3) REVISED.
In the matter between:
L MAHLAKANYA
and
THE STATE
JUDGMENT
van der Westhuizen , J (Yende AJ, concurring) CASE NO.: A69/2024
Appellant
Respondent
[1] The appellant appealed against his conviction and sentence on 9 March
2023 on a charge of rape of a minor in the Regional Court held at
Pretoria.
2
[2] He was sentenced to life imprisonment and declared to be unfit to
possess a firearm in terms of section 103(1) of the Firearms Act, 60 of
2000.
[3] In terms of section 10 of the Judicial Matters Amendment Act, 42 of
2013, he enjoyed an automatic right of appeal when sentenced to life
imprisonment.
[4] Initially the appellant pleaded not guilty to the charge of rape of a minor.
However, after four witness had testified on behalf of the State, he made
admissions in terms of section 220 of the Criminal Procedure Act, 51 of
1977 (the Act). The legal representative appearing on behalf of the
accused, conceded that the admissions made in terms of section 220 of
the Act rendered a plea of guilty. The appellant was then convicted of
the crime charged. There is no appeal against conviction .
[5] When the appeal came before this court, the Court building was without
electricity. The counsel representing the appellant and the respondent
requested that the appeal be heard in chambers rather than postponing
the hearing of the appeal. The request was granted. Both counsel made
oral submissions in addition to their respective heads of argument.
[6] On the issue of sentence, the State proved various previous convictions
and relied upon a victim impact statement. None of the previous
convictions related to the rape of a minor or otherwise . The appellant did
not lead any evidence in mitigation and relied on submissions made on
his behalf by the legal representative. The facts placed before the court
in mitigation were: his age, 53 years; he was married and his wife was
unemployed ; he had 3 children who were still dependent upon him; he
only had a grade 7 qualification and was self-employed as a hawker and
supported his family; he was trial awaiting for three years and three
months; alcohol apparently played a significant role in the perpetration
of the crime; there was a possibility of rehabilitation.
3
[7] The court a quo found no substantial and compelling circumstances to
deviate from the prescribed minimum sentence. Counsel appearing for
the appellant submitted that the trial court had erred in not finding
substantial and compelling evidence in the cumulative effect of the
aforementioned personal circumstances of the appellant. Furthermore ,
counsel submitted that the sentence was disproportionate to the offence
and consequently on its own constituted substantial and compelling
circumstances. There is no merit in the last submission. It is a prescribed
sentence. It cannot on itself find mitigation.
[8] It is trite law that a court of appeal can only interfere with a sentence of
a court a quo where it is found that the court had misdirected itself, or
where the sentence was inappropriate to the crime.1 The imposition of a
sentence falls within the discretion of the court, and in the absence of
any misdirection on the part of the court indicating that the exercise of
that discretion was inappropriately or unreasonably exercised, a court of
appeal cannot interfere with the imposed sentence. In the present
instance, the appellant failed to show or prove any misdirection on the
part of the court a quo.
[9] The principles enunciated in State v Malgas2 find application in this
matter. Applying those principles, this court cannot interfere. The
personal circumstances of the appellant , on their own or cumulatively ,
do not constitute substantial and compelling circumstances.
[1 O] The admitted previous convictions of the appellant indicate a propensity
to commit offences and clash with the law. The possibility for
rehabilitation has not been proven by the appellant.
[11] In my view, the appeal stands to be dismissed.
11 See Rex v Zulu et al 1951(1) SA 489 (N)
2 2001(1) SACR 469 (SCA)
4
I propose the following order:
The appeal against sentence is dismissed.
On behalf of Appellant:
Instructed by:
On behalf of Respondent:
Instructed by:
Date of Hearing:
Judgment Delivered : Mr MB Kgagara
Legal-Aid, Pretoria
Adv T Nyakama THUIZEN
E HIGH COURT
National Director of Public Prosecutions
18 February 2025
04 June 2025