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
KWAZULU -NATAL DIVISION, PIETERMARITZBURG

Reportable/Not Reportable
Appeal No: AR213/2023

In the matter between:

MDUDUZI KHONJWAYO Appellant

and

THE STATE Respondent


ORDER


On appeal from : Regional Court, Pietermaritzburg (Mr BD Dehaloo sitting as court of
first instance):
1. The appeal is dismissed
2. The sentence imposed by the court a quo on the appellant is hereby
confirmed.


JUDGMENT


Marion AJ (Radebe J concurring)

Introduction
2

[1] This is an appeal against the conviction and sentence of the appellant, who
was convicted of three (3) counts of rape in the Regional Court, Pietermaritzburg, by
the learned magistrate, Mr BD Dehaloo. He was thereafter sentenced to life
imprisonment after the trial court found no substantial and compelling circumstances
to deviate from the prescribed minimum sentence contemplated by s 51(1) , read with
Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the CLAA).
By virtue of the provisions of s 309(1) (a) of the Criminal Procedure Act 51 of 1977
(the CPA), the appellant exercised his automatic right of appeal to challenge both his
conviction and sentence. The appellant was represented by Ms Anastasiou -Krause
and the State was represented by Ms Sokhela.

The facts
[2] The facts presented by the State were not complex and three witnesses were
called to testify. The complainant testified that on or about 23 July 2018, 25 July
2018 and 27 July 2018 the appellant did unlawfully rape her. She was 12 years old
when these offences were committed. The complainant resided at the same
homestead with the appellant, her mother Ms T[...] M[...] (Ms M[...] ) and the
appellant’s brother, at an area known as Dambuza . The complainant described the
home as a two -roomed house where the appellant and her mother slept in the
bedroom, while she slept on the floor in the kitchen. The appellant’s brother, Mr
Thulani Khonjwayo (Thulani) came to live with them in May 2018 . He also slept on
the kitchen floor. The complainant testified that her mother did not reside at the
homestead on a daily basis as she worked away from home during the week and
only returned on weekends . She (the complainant) normally watched television in the
bedroom and thereafter slept on the bedroom floor, if there were guests. She stated
that on 23 July 2018 at approximately 20h30, while she was asleep, she felt
someone touching her and requesting her to wake up. It was the appellant. He twice
requested her to come and sleep with him, but she refused to do so. He physically
lifted her up and placed her on the bed and asked her to take off her underwear . She
refused. The appellant then forcefully remo ved her underwear. He thereafter
removed his trunks , opened her legs and inserted his penis into her vagina. He made
up and down movements . It was painful. The complainant cried and pleaded with the
appellant to stop. When he stopped , a white substance came out of her. He
thereafter advised her not to report this to her mother otherwise he would kill her.
3


[3] On 25 July 2018, the appellant again requested the complainant to come and
sleep with him. She refused , and he carried the complainant to his bed and forcefully
removed her underwear and raped her. On this occasion, however, he did not
threaten her. The same course of events took place on 27 July 2018, whe n the
appellant requested the complainant to come and sleep with him. She once again
refused, but the appellant raped her. The complainant testified that the appellant had
raped her again on another occasion during the day, but she could not recall the
date. The complainant described each act of rap e in detail. The complainant was
assaulted by the appellant. It was at this stage that the complainant requested
permission to go and live with her aunt in Caluza , which is also in Pietermaritzburg .
After a week, she reported the rapes to her mother. She was taken to a doctor at
Edendale Hospital and examined. The complainant testified that prior to these
incidents she had a good father -daughter relationship with the appellant.

[4] Ms M[...] , the complainant’s mother testified that the appellant was not the
biological father of the complainant. They had lived together as husband and wife
from 2013. She stated that she worked away from home and only returned on
weekends or on a month end. Ms M[...] testified that at some stage they informed the
complainant that the appellant was not her biological father. The three of them sat
down and discussed this issue. She further stated that during the first week of August
2018, upon her return home she bathed the complainant and discovered that she
had an injury to her eye, which was bloodshot. Upon questioning the complainant, it
transpired that the a ppellant had assaulted her . The complainant was then relocated
to an aunt’s house in Caluza. This situation le d to Ms M[...] moving in with the
neighbours as she did not want to live with the appellant after the assault. At this
point the complainant had not informed her mother that the appellant had raped her
on several occasions. Around 15 August 2018, the complainant telephoned her
mother to inform her that she was not feeling well and requested advice on whether
to go to a clinic or school. Her mother advised her to stay at home. It was at this time
that the complainant reported to her mother that the appellant had raped her . The
mother returned home and confronted the appellant who apologised for his actions.
The appellant’s uncles were notified and arrived at the homestead where the issue of
compensation was also discussed. Ms M[...] testified that she did not want
4

compensation for the complainant but rather justice. Pursuant to these incidents of
rape on her daughter, she ended her relationship with the appellant.

[5] Dr Langelihle Ngubane was the third state witness . He practiced at the
Thuthuzela Care Centre at Edendale Hospital, which caters for sexual assault
victims. He testified that on 15 August 2018 at 18h05 he examined the complainant
and completed the J88 form where he recorded his findings. He record ed the
complainant’s age as 12. Dr Ngubane recorded that the complainant reported that
she was raped by a known male on three occasions in July 2018. She reported that
she had only informed her mother about the rapes on 15 August 2018. The doctor
recorded his medi cal findings that the hymen was annular in shape, with a 2.3 cm
diameter opening. The posterior rim was absent, and he noted a foul -smelling
yellowish discharge. The doctor concluded that there was evidence of previous
vaginal penetration with a blunt object and evidence of a sexually transmitted
disease.

[6] The appellant testified in his defence and called his uncle Mr Themba Samson
Hlela (Mr Hlela) as a witness. The appellant testified that he was employed as a
security guard, but he was dismissed on 1 June 2018. He confirmed that the house
in Dambuza was a two -roomed house with a kitchen and a bedroom. He also
confirmed that the complainant slept in the kitchen whilst he and the complainant’s
mother slept in the bedroom. He stated that if visitors arrived the complainant would
sleep on the floor in the bedro om. The appellant testified that his brother, Thulani,
came to live with them during May 2018. He stated that the complainant returned
from her visit to her maternal aunt on 17 July 2018 when school s reopened. The
appellant’s version, however, was that the complainant left to go and stay with her
aunt, B[...] at Caluza from 20 July 2018, as she had a quarrel with her mother. This
quarrel related to doing chores at home. The appellant denied the allegations of rape
against him by the complainant and stated that the complainant was not resident with
him during the dates of the incidents. The appellant also denied that he had a TV in
his bedroom at that stage, as alleged by the complainant. He testified that he had
suggested that the complainant be taken to the hospital after the allegations of rape
had been made against him. He called his uncle, Mr Hlela, who took the complainant
and her mother to be examined by the doctor. The appellant also denied admitting to
5

raping the complainant or apologising for such conduct. The appellant further denied
assaulting the complainant at any time.

[7] The appellant surmised that the aunt wanted to take the complainant to live
with her and hence influenced her to fabricate these allegations against him. Under
cross -examination the appellant admitted that his brother Thulani was living with him
at the time of the rapes. This contradicted the version that was put to the
complainant under cross -examination that Thulani never lived at their homestead.
The appellant also denied that the complainant’s mother stayed at her place of
employment. The appellant admi tted that his two uncles, Mr Hlela and Mr Gceba ,
were present when the allegations of rape were made against him. He stated that it
was a mistake earlier when it was put to the complainant’s mother that Mr Gceba
was not present. Surprisingly, the appellant did not dispute the doctor’s findings in
the J88 of repeated sexual penetration , nor what was stated in that report by the
complainant. However, when questioned about each date and act of rape , the
appellant disputed same and averred that he and the compl ainant were not living at
the same homestead during those relevant dates .

[8] Mr Hlela testified and confirmed that he was called by the appellant to assist
in taking the complainant to hospital. He stated that he only became aware of the
rape allegations against the appellant upon the mothers’ return from the hospital. He
did not hear any talk about compensation or an apology. The day after having taken
the complainant to the hospital, he became aware that the appellant was arrested.
Upon cross -examination he stated that as far as he was told, the reason for the
complainant goin g to the hospital was that she had a throat infection.

Ad conviction
[9] Having regard to the totality of the evidence, I am of the view that the court a
quo correctly rejected the appellant’s version. The evidence tendered by the defence
witness, Mr Hlela , did not assist the appellant in any way. He only corroborated the
appellant’s version in so far as there was no apology or negotiation for
compensation. The complainant was a single witness in relation to the three
incidents. She testified in a satisfactory manner in all material respects. The
6

appellant conceded that the court a quo correctly found that the cautionary rule was
applicable in assessing the complainant’s evidence.

[10] The appellant’s grounds of appeal as set out in his heads of argument aver
that the magistrate did not carefully scrutinise the complainant’s evidence. The basis
for this argument was that the complainant fail ed to report these rape incidents at her
first available opportunity. The last incident of rape was 27 July 2018, and the
complainant only reported them to her mother on 15 August 2018. A further averment
made by the appellant was that the appellant’s brother was present during the rapes,
and the complainant could have screamed for help. The appellant argued that her
failure to scream for help was improbable in the circumstances and the basis for
which the court did not properly apply the cautionary rule. With respect, the
appellant’s heads of argument lacked merit and failed to provide a proper basis for
any of the grounds of appeal. The complainant testified that the appellant had
threatened her and hence she did not scream. She also stated that she thought that
the appellant’s brother was aware of what was happening and did nothing to help.

[11] In my view, the court a quo carefully assessed the complainant’s evidence as
well as the applicable case law. In S v Dyira1 the court held that:
“The requirement in such a case is, as always, proof of guilt beyond reasonable doubt, and,
to assist the courts in determining whether the onus is discharged, they have developed a
rule of practice that requires the evidence of a single witness to be approached with special
caution ( R v Mokoena 1956 (3) SA 81 (A) at 85, 86). This means that the courts must be
alive to the danger of relying on the evidence of only one witness, because it cannot be
checked against other evidence. Similarly, the courts have developed a cautionary rule
which is to be applied to the evidence of small children ( R v Manda 1951 (3) SA 158 (A) at
162E - 163E). The courts should be aware of the danger of accepting the evidence of a little
child because of potential unreliability or untrustworthiness, as a result of lack of judgment,
immaturity, inexperience, imaginativeness, susceptibility to influence and suggestion, and the
beguiling capacity of a child to convince itself of the truth of a statement which may not be
true or entirely true, particularly where the allegation is of sexual misconduct, which is
normally beyond the experience of small children who cannot be expected to have an
understanding of the physical, social and moral implications of sexual activity ( S v Viveiros

1 S v Dyira 2010 (1) SACR 78 (ECG) para 6.
7

[2000] 2 All SA 86 (SCA) para 2). Here, more than one cautionary rule applies to the
complainant as a witness. She is both a single witness and a child witness. In such a case
the court must have proper regard to the danger of an uncritical acceptance of the evidence
of both a single witness and a child witness (Schmidt Law of Evidence 4-7).”

[12] In my view, the court a quo correctly cited the principles from the applicable
case law relating to both a single witness and child witness. The magistrate was
aware of the dangers of convicting on the evidence of a single witness, a s this
appears from his judgment. The court a quo referred to the case of S v Artman2 and
stated that :
“the court should examine the evidence in order to satisfy itself that the evidence given by
the witness is clear and substantially satisfactory in all material respects, although
corroboration is not a prerequisite for a conviction, a court will sometimes in appropriate
circumstances seek corroboration which implicates the accused before it will convict. Failing
corroboration, a court will look for some feature in the evidence which gives the implication
by a single child witness enough of a hallmark of trustworthiness to reduce substantially the
risk of wrong reliance upon his or her evidence. ”3
Holmes JA stated in Artman that “the exercise of caution must not be allowed to
displac e the exercise of common sense.”4

[13] In most rape and sexual assault cases the complainant is a single witness. In
Stevens v S5 the court stated:
“In terms of section 208 of the Criminal Procedure Act 51 of 1977, an accused can be
convicted of any offence on the single evidence of any competent witness. It is, however, a
well-established judicial practice that the evidence of a single witness should be approached
with caution, his or her merits as a witness being weighed against factors which militate
against his or her credibility. ”

[14] In the present case, the court a quo correctly found that the complainant
“answered all the questions put to her without hesitation and ease. She was
coherent and did not contradict herself in any way. ”6 The complainant testif ied about

2 S v Artman and another 1968 (3) SA 339 (A) ( Artman ).
3 Judgment page 161 line 14 -23.
4 Artman at 341C -D.
5 Stevens v S [2005] 1 All SA 1 (SCA) para 17. 6
Judgment page 163 line 18 -20.
8

a further incident that occurred during the day, but she could not recall the date .
However, the prosecution did not pursue this evidence as the appellant was not
charged with this count. Under cross examination the court a quo found the
complainant to have answered all questions without hesitation or contradiction. The
complainant’s evidence was correctly evaluated as satisfactory in all material
respects. The complainant’s mother corroborated her evidence in so far as the
reasons why she wanted to go and live with her aunt in Caluza. It should be noted
that corroboration in matters like these is not a strict requirement. The complainant’s
mother confirmed the report of rape made by the complainant to her. The
complainant’s mother testified that the complainant persistently told her that there
was something she wanted to tell her prior to the report. The complainant testified
that the appellant had threatened to kill her. The delay in reporting the rapes is
accounted for as the complainant feared the appellant. This was more so after
having been assaulted by the appellant. Her mother also c orroborated her version
that when the appellant was confronted about the allegations, he apologised and
further discussions ensued in respect of compensation with the uncles present. The
complainant’s mother refused compensation as she wanted “justice ” for her child.
The court a quo accepted the mother’s evidence to be satisfactory in all material
respects. The doctor’s evidence in respect of the history and injuries to the
complainant, as reflected in the J88 also corroborated the complainant’s version in
material respects. The doctor concluded that there was evidence of previous vaginal
penetration and evidence of a sexually transmitted disease. The absence of the
posterior rim to the hymen confirmed repeated penetration. The doctor explained that
this was why no clefts and notches were present.

[15] The appellant’s version was a bare denial. The appellant denied that the
complainant was even residing with him at the time of the incidents of rape. He also
stated that his brother, Thulani, was not residing with him in July 2018.The
appellant’s version that the aunt created the rift between the complainant and himself
and that she wanted the complainant to reside with her which caused the
complainant to fabricate the rape charges, was never put to the complainant. The
version of the appellant that th e rapes were first reported to her aunt, who thereafter
reported it to the complainant’s mother, was never put to the complainant nor to her
mother. Under cross examination the appellant testified that he made a mistake and
9

that his brother was present at his home in July 2018. Initially the appellant disputed
that his uncle, Mr Gceba , was present when the complainant’s mother made these
allegations against him and thereafter reneged on this, accepting that this was a
mistake and that both uncles (Mr Hlela and Mr Gceba) were present. Most
importantly, the appellant did not refute the doctor’s evidence. Mr Hlela, the uncle,
who the appellant called to testify on his behalf, exposed a bias under cross
examination, in favour of t he appellant, who he considered to be a son. It was
improbable that he did not know about the allegations of rape against the appellant,
when he rushed to take the complainant and her mother to the hospital. The
appellant had testified that he told his uncle about the allegations when he
telephoned him for assistance. The court a quo correctly found that the appellant had
contradicted himself in material respects and rejected his evidence as false beyond a
reasonable doubt. The court further found that Mr H lela’s evidence did not assist the
appellant’s case. His evidence was bias in favour of the appellant which showed that
he lacked credibility as a witness.

[16] The court a quo looked at the evidence in totality and found that there was
sufficient corroboration to accept the complainant’s evidence . The State’s evidence
was found to be consistent in all material respects. On a conspectus of all the
evidence, the appellant was correctly convicted of three counts of raping the
complainant . The result, in my view, is that the conviction on three counts of rape
should stand.

Ad sentence
[17] The appellant submitted that the court a quo erred in finding that no
substantial and compelling circumstances existed to impose a lesser sentence than
the minimum prescribed by the legislature. The appellant further submitted that the
court a quo ought to have placed greater emphasis on the following facts : that the
appellant was a 35 -year-old first offender ; that he was employed as a security guard
earning R4 200 per month ; and that he supported his five siblings. Counsel for the
appellant argued tha t the sentence of life imprisonment was excessive and
inappropriate to a degree that would empower this court to intervene.

10

[18] Ms Sokhela argued that the court a quo had properly considered the triad as
expounded in S v Zinn6 and that the minimum sentence of life imprisonment was
applicable. She further argued that the court a quo correctly found that there were no
substantial and compelling circumstances for the court to deviate from the minimum
sentence. The court a quo had carefully considered the interests of the complainant
and that of the community and that the sentence of life imprisonment was just in the
circumstances.

[19] Section 51(1) of the CLAA requires a minimum prescribed sentence of life
imprisonment to be imposed for a conviction of rape where the complainant is raped
more than once or where the complainant is a child under the age of 1 6 years,
unless in terms of s 51(3) (a), substantial and compelling circumstances exist that
justify a lesser sentence. The complainant in this matter was 12 years old and was
raped on multiple occasions.

[20] In Malgas v S ,7 the Supreme Court of Appeal stated that the imposition of a
minimum sentence of life imprisonment for the crimes specified in section 51, which
includes multiple rapes means that it is “no longer to be ‘business as usual ’ when
sentencing for the commission of the specified crimes. ”

[21] In S v Kwanape ,8 quoting Malgas , the court stated that a sentence of life
imprisonment must be ordinarily imposed to ensure “severe, standardised, and
consistent response from the courts ” for the crimes specified in section 51, “unless
there were. . .truly convincing reasons for a different response. ”

[22] The prescribed minimum sentence can be deviated from only if substantial
and compelling circumstances exist. The Supreme Court of Appeal in Malgas9
interprets this as meaning:
“The specified sentences were not to be departed from lightly and for flimsy reasons which
could not withstand scrutiny. Speculative hypotheses favourable to the offender, maudlin
sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the

6 S v Zinn 1969 (2) SA 537 (A).
7 Malgas v S [2001] 3 All SA 220 (A) ( Malgas ) para 7.
8 S v Kwanape [2012] ZASCA 168; 2014 (1) SACR 405 (SCA) para 14, Malgas para 8.
9 Malgas para 9.
11

policy implicit in the amending legislation, and like considerations were equally obviously not
intended to qualify as substantial and compelling circumstances. . .the ultimate cumulative
impact of those circumstances must be such as to justify a departure. ”

[23] In assessing whether substantial and compelling circumstances exist, the
Supreme Court of Appeal also held:10
“I. 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.
J. In so doing, account must be taken of the fact that crime of that particular kind has been
singled out for severe punishment and that the sentence to be imposed in lieu of the
prescribed sentence should be assessed paying due regard to the bench mark which the
Legislature has provided. ”

[24] In Zinn the court held that a factual enquiry has to be conducted to determine
a sentence that is just and fair, and includes that the following must be considered:
(a) the nature of the crime,
(b) the personal circumstances of the person convicted, and
(c) the interests of society.
In Malgas11 the court reiterated the Zinn principles, whilst highlighting the discretion
of the trial court.
“…a trial court will consider the particular circumstances of the case in the light of the well-
known triad of factors relevant to sentence and impose what it considers to be a just and
appropriate sentence. ”

[25] In S v Jansen the court stated the following:12
“Rape of a child is an appalling and perverse abuse of male power. It strikes a blow at the
very core of our claim to be a civilised society. . . It is utterly terrifying that we live in a society
where children cannot play in the streets in any safety; where children are unable to grow up
in the kind of climate which they should be able to demand in any decent society, namely in
freedom and without fear. In short, our children must be able to develop their lives in an

10 Malgas para 25.
11 Malgas para 12.
12 S v Jansen 1999 (2) SACR 368 (C) at 378G -379B.
12

atmosphere which behoves any society which aspires to be an open and democratic one
based on freedom, dignity and equality, the very touchstones of our Constitution. ”
The court must also keep the objectives of sentencing in mind, which include
retribution, deterrence, prevention and rehabilitation.13

[26] The court a quo referred to the case of S v Matyityi14 where the Supreme
Court of Appeal provides guidance on factors that need to be taken into account in
light of the minimum sentence regime. The trial court clearly understood that the
starting point was not a “clean slate ” where he could inscribe any sentence he
wished to. Malgas emphasised the following:
“[8]. . . a court was not to be given a clean slate on which to inscribe whatever sentence it
thought fit. Instead, it was required to approach that question conscious of the fact that the
legislature has ordained life imprisonment or the particular prescribed period of
imprisonment as the sentence which should ordinarily be imposed for the commission of the
listed crimes in the specified circumstances. In short, the legislature aimed at ensuring a
severe, standardised, and consistent response from the courts to the commission of such
crimes unless there were, and could be seen to be, truly convincing reasons for a different
response. When considering sentence the emphasis was to be shifted to the objective
gravity of the type of crime and the public's need for effective sanctions against it. . .
[9]. . .The specified sentences were not to be departed from lightly and for flimsy reasons
which could not withstand scrutiny. Speculative hypotheses favourable to the offender,
maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy
of the policy implicit in the amending legislation, and like considerations were equally
obviously not intended to qualify as substantial and compelling circumstances. Nor were
marginal differences in the personal circumstances or degrees of participation of co -
offenders which, but for the provisions, might have justified differentiating between them. But
for the rest I can see no warrant for deducing that the legislature intended a court to exclude
from consideration, ante omnia as it were, any or all of the many fa ctors traditionally and
rightly taken into account by courts when sentencing offenders. ”


13 S v M (Centre for Child Law as amicus curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC); 200 7 (12)
BCLR 1312 (CC) para 109.
14 Matyityi para 17.
13

[27] In this matter, the magistrate considered the seriousness of the offence of
rape of a minor and the prevalence of such crimes in South Africa. In Maila v S the
Supreme Court of Appeal stated:15
“The message must be clear and consistent that this onslaught will not be countenanced in
any democratic society which prides itself with values of respect for the dignity and life of
others, especially the most vulnerable in society: children. For these reasons, this Court is
not at liberty to replace the sentence that the trial court imposed. For an uncle, who is the
position of trust just as a father, to rape his own niece is unconscionable and deserves no
other censure than that imposed by the trial court: life imprisonment. The sentence is not
disproportionate to the serious offence that the appellant committed on a 9 -year-old child, his
niece. The sentence is, thus, justified in the circumstances. ”
It is evident that the rape of women and children is rife in our country. The statistics
of these crimes are shocking and have reached pandemic proportions. In my view,
the court a quo carefully considered all factors before it before arriving at a suitable
sentence. The appellant was in a relationship with the complainant’s mother and
practically raised the complainant as a father. The relationship between the appellant
and the complainant was good until these incidents of rape occurred.

[28] The court a quo took into account that the appellant was 35 years old, single
and had no children. He was a first offender who had spent over three years in
custody at the time of sentencing. He had been employed as a security guard
however, from his own evidence, he informed the court that he was dismissed on 1
June 2018. In mitigation of sentence, his attorney advised the court that he was not
dismissed but rather suspended. In S v Vilakazi16 Nugent JA stated that
“Once it becomes clear that the crime is deserving of a substantial period of imprisonment
the questions whether the accused is married or single, whether he has two children or
three, whether or not he is in employment, are in themselves largely immaterial to what that
period should be, and those seem to me to be the kind of ‘flimsy’ grounds that Malgas said
should be avoided. ”

[29] In my view, the court a quo applied the applicable sentencing guidelines and
principles in balancing all the relevant factors before him. The magistrate considered
the appellant’s personal circumstances, ie that he was a first offender and the time

15 Maila v S [2023] ZASCA 3 para 60.
16 S v Vilakazi [2008] ZASCA 87; 2 009 (1) SACR 552 (SCA) para 58.
14

spent in custody. His attorney argued that he was capable of being rehabilitated. In S
v Dyantyi17 the court aptly stated that “[w]ithout expression of contrition, any hope of
rehabilitation becomes illusory and thus an unrealistic expectation ”.

[30] In looking at the interests of the victim the appellant took advantage of the
complainant who respected him as her father. The victim impact statement that forms
part of the record clearly shows the psychological effect that these rapes had on the
complainant and that she would endure post -traumatic stress for a long time after.
The letter from the complainant’s mother also indicates to the court the effects the
rapes had on her as a mother. The court took all three counts together for the
purposes of sentencing and took into account that not doing so would have a severe
overall effect in sentencing the appellant. I am of the view that the court a quo
assessed all factors before him before doing a balancing act to arrive at a fair and
just sentence.

[31] In Malgas ,18 the court held that:
“an appellate court may. . .be justified in interfering with the sentence imposed by the
trial court. . .when the disparity between the sentence of the trial court and the
sentence which the appellate court would have imposed had it been the trial court is
so marked that i t can properly be described as ‘shocking’, ‘startling’ or ‘disturbingly
inappropriate’ .”

[32] I can find no reason to interfere with the sentence imposed by the court a quo
as there is no misdirection on the learned magistrate’s part. The prescribed minimum
sentence imposed in this case does not result in an injustice to the appellant. The
sentence of life imprisonment in the circumstances of this case is not “shocking ”,
“startling ” or “disturbingly inappropriate ”. The court further fulfilled the objectives of
sentencing namely, retribution, deterrence, prevention and rehabilitation in his
evaluation on sentence. This type of sentence will prevent and deter him from
committing such an offence again and will send a clear message to all like -minded
people wanting to commit offences like these on children. The appellant will be able
to participate in the rehabilitation programmes offered in prison.

17 S v Dyantyi 2011 (1) SACR 540 (ECG) para 26.
18 Malgas para 12.
15



Order
[33] In the result:
1. The appeal is dismissed.
2. The sentence imposed by the court a quo on the appellant is hereby
confirmed.


_________________ _
MARION AJ

I agree, and it is so ordered


__________________ _
RADEBE J


Heard: 25 October 202 4
Judgment: 13 June 2025

Appearance:
Appellant: Ms Z Anastasiou -Krause
Instructed by: Legal Aid Board
Pietermaritzburg
Email: SiceloN@legal -aid.co.za

Respondent: Ms Z.M. Sokhela
Instructed by: National Prosecuting Authority
Pietermaritzburg
Email: zsokhela@npa.gov.za