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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO. : A231/2024
REPORTABLE
In the matter between :-
ASANDA BATAYI APPELLANT
and
THE STATE RESPONDENT
Neutral citation : Batayi v S (Case no A231/2024) [202 5] ZAWCHC (24.06.25)
Coram : NUKU J et MOOSA AJ
Heard : 20 June 2025
Delivered : 24 June 2025 (delivered via email to the respective Counsel)
Summary : Rape - appeal against sentence of life imprisonment on multiple
acts of child rape – appellant is a sexual predator – life sentence
imposed on both counts of rape is not shocking or startlingly
inappropriate – sentence confirmed on appeal .
ORDER
On appeal from the regional court at Khayelitsha , it is order ed that the appeal
against the sentence on count 1 and count 2 is dismissed .
JUDGMENT
Moosa AJ (Nuku J concurring)
Introduction
[1] This is an appeal stemming from a criminal trial held in the regional court at
Khayelitsha. The a ppellant was charged with two counts of rape in contravention of s
3 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of
2007 (the CLAA 32/2007). He pleaded not guilty to both counts .
[2] He was convicted on 25 July 2019 on both counts of rape . On 7 October 2019
he was sentenced to life imprisonment on each count pursuant to the minimum
sentence regime in s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the
CLAA 105/1997), both of which sentences were ordered to run concurrently under s
280(2) of the Criminal Procedure Act 51 of 1977 (the CPA).
[3] Pursuant to s 309(1)(a) of the CPA as amended by s 10 of Act 42 of 2023, t he
appellant exercised his automatic right of appeal against his conviction and sentence
on both count s. However, at the hearing, appellant’s counsel, Mr Sebueng, informed
the Court that the appellant no longer seeks to appeal his conviction . Mr Sebueng
informed the Court that the appellant only pursues the appeal against the sentence
imposed by the trial court. Accordingly, t his judgment relates to that limited aspect .
[4] For purposes of evaluating the sentence imposed and whether there are
grounds to set it aside , it is necessary to traverse key aspects of the trial record a
quo.
Salient backgrounds facts
[5] The appellant w as charged and convicted with the rape of a minor female girl
(ZM).1 Her birth certificate show ed that she was born on 25 September 2000.
[6] Pursuant to c ount 1 , the appellant was convicted for unlawfully and
intentionally committ ing an act of sexual penetration by inserting his penis into ZM’s
vagina without her consent on two occasions in 2014.
[7] Pursuant to c ount 2 , the appellant was convicted for unlawfully and
intentionally committ ing an act of sexual penetration by inserting his penis into ZM’s
vagina without her consent on multiple occasions during the period August 2011 to
December 2011.
[8] ZM was 18 years old when she testified in the trial a quo. She testified that the
appellant raped her multiple times during the latter part of the year 2011, and again
twice in and during 2014.
[9] It is common cause that during 2011 , the appellant lived with ZM and her
family at their Khayelitsha home. The first time ZM was raped by the appellant during
2011 was towards the end of the year. ZM testified that she returned home from
school in the afternoon one day with her brother , A[...]. After they undressed from
their school uniforms and put on their after -school clothing, A[...] went outside the
house to play. ZM was alone in the house with the appellant. ZM was doing her
school homework. The appellant cal led her into his bedroom and told her to climb
onto his bed. It was then that the appellant raped ZM.
[10] The second time ZM was raped by the appellant in 2011 is a lso after she and
her brother , A[...], returned home from school. Again, the appellant was at home
alone . ZM’s parents were at work. The appellant was entrusted with ZM and A[...]’s
after-school care.
[11] On the occasion of this second rape, the appellant gave A[...] money and sent
him to the shop to buy something. The appellant told ZM to stay with him while A[...]
1 In this judgment, the personal information of the complainant and her mother is protected
through non -disclosure.
goes to the shop . When A[...] left, the appellant again told ZM to go into his room .
While in that room, ZM recount ed that t he appellant said to her that she must
undress herself and climb on to his bed. ZM did as she was instructed and the
appellant then raped her. ZM was 11 years old at th at time.
[12] The appellant then raped ZM a further three times on one weekend during
November 2011 when ZM’s parents went to the Eastern Cape for her grandfather’s
funeral. ZM and her two younger brothers were left at home alone in the appellant ’s
care. ZM’s parents trusted the appellant with their children ’s care .
[13] The appellant raped ZM on the Friday evening shortly after her parents left for
the Eastern Cape and while her brothers were a sleep. The appellant fetched ZM
from her parents’ room and took her to his room where he raped her on his bed.
[14] The appellant ra ped ZM on the next day too, being Saturday. She was alone
at home with him. ZM’s brothers were at the house of a neighbour whose child was
graduating. While ZM was alone at home with the appellant, he again told her to go
into his room. ZM was powerless. She did as she was told. There she was raped
again .
[15] The appellant raped ZM for a fifth time in 2011 on the following evening, being
Sunday night . ZM was sleeping in her parents’ room when the appellant fetched h er
again . He took her to his room where he raped her on his bed . While he was busy
raping her, ZM’s mother phoned and told the appellant that she was close to home .
[16] When detailing these f ive rapes, ZM testified that she felt pain on each
occasion in her vagina and that she told the appellant that this was painful for her,
but to no avail. He continued to rape her despite her pain.
[17] The appellant was convicted of these rapes, all of wh ich formed part of the
charge in count no. 2 . As stated above, he was sentenced to life imprisonment .
[18] ZM testified that her parents sent her to live with her grandmother in the
Eastern Cape . She stayed there for two years , namely, 2012 to 2013 . On her return
from the Eastern Cape at the end of 2013, the appellant was still living at her
parents’ home in Khayelitsha. On two occasion s in and during 2014, and on dates
which she could not recall, t he appellant raped ZM when they were again alone at
home.
[19] The appellant was convicted of th ese latter rapes which formed part of the
charge in count no. 1. On this count too, he was sentenced to life imprisonment
which was ordered to run concurrently with the life sentence imposed on count 2.
Issues for adjudication
[20] The trial court did not find substantial and compelling circumstances to exist.
On that basis, the appellant was sentenced to the minimum prescribed sentence of
life imprisonment on both counts as compelled by s 51(1) of the CLAA 105/1997.
[21] The appellant contends that the trial court erred in its decision not to find
substantial and compelling circumstances which would merit a deviation from the
statutorily prescribed sentence for rape . He contends that same exists so that he is
entitled to a lesser sentence than the prescribed life imprisonment imposed .
[22] The narrow issue for determination is whether valid grounds exist for this
Court to interfere with the trial court’s sentence .
Legal principles on sentencing
[23] An appellate court must be slow to interfere with a trial court’s discretion on
senten ce. It is a truism that t he infliction of punishment is pre -eminently a matter
within a trial court ’s discretion . See S v Rabie 1975 (4) SA 855 (A) at 857D.
[24] In S v Malgas 2001 (1) SACR 496 (SCA) para 12 , it was held:
‘A court exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question of sentence as if it was
the trial court and then substitute the sentence arrived at by it simply because
it prefers it. To do so would usurp the sentencing of the trial court.’
[25] In S v Pillay 1977 (4) SA 531 (A) at 535E -F, the Appellate Division (now
Supreme Court of Appeal) held that a ‘misdirection ’, for purposes of an appellate
court’s jurisdiction being triggered ,
‘… means an error committed by the Court in determining or applying the
facts for assessing the appropriate sentence. As the essential inquiry in an
appeal against sentence, however, is not whether the sentence was right or
wrong, but whether the Court in imp osing it exercised its discretion properly
and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal
Court to interfere with the sentence; it must be of such a nature, degree, or
seriousness that it shows, directly or inferentia lly, that the Court did not
exercise its discretion at all or exercised it improperly or unreasonably ’.
(Emphasis added )
Application of principles to the facts
[26] Appellant’s counsel relied on the following considerations in support of his
contention that sub stantial and compelling circumstances exist: (i) appellant is a first
offender; (ii) appellant was 27 years old in 2011 when the rapes in count 2 were
committed, and 29 years old in 2014 when the rapes in count 1 were committed; and
(iii) the appellant’s various personal circumstances as outlined in the pre -sentencing
report dated 27 August 2019 marked Exhibit D.
[27] With regards to the appellant’s status as a first offender, this consideration
carries little weight when a court determines if substantial and compelling
circumstances exist. This is clear from S v Malgas supra para 25 where the SCA
held as follows with r egards to deviation from minimum sentences:
‘The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue sympathy,
aversion to imprisoning first offenders , personal doubts as to the efficacy of
the policy underlying the legislation, and marginal differences in personal
circumstances or degrees of participation between co -offenders are to be
excluded. ’ (Emphasis added)
[28] The rape in this case falls squarely within the ambi t of Part I of Schedule 2 of
the CLAA 105/1997, namely, rape committed by an accused in circumstances where
the victim was raped more than once. The legislature ordained that even first
offenders of such a heinous rape shall be sentenced to life imprisonme nt. This is a
most appropriate response in the context of this case.
[29] As regards the appellant’s age , his counsel submits that he is ‘fairly young’
and that this is a mitigating factor. The description of the appellant as ‘fairly young’ is
akin to describing hi m as ‘relatively young’, both ill -defined and vague concepts
which cannot play any meaningful role for purposes of establishing substantial and
compelling circumstances, unless some content is given to the meaning of ‘fairly
young’. See S v Ma tyityi 2011 (1) SACR 40 (SCA) paras 14, 23.
[30] As regards age being used as a mitigating factor, our courts have decisively
held that ‘ a person of 20 years or more must show by acceptable evidence that he
was immature to such an extent that his immatur ity can operate as a mitigating
factor. At the age of 27 the respondent could hardly be described as a callow youth.
At best for him his chronological age was a neutral factor. Nothing in it served,
without more, to reduce his moral blameworthiness. ’ (S v Matyityi supra para 14).
[31] No evidence was placed before the trial court as to the appellant’s level of
immaturity, or any other influence which may have been brought to bear on him that
caused him to act in the manner that he did. In fact, in the tri al court, the appellant
persisted in denying his guilt. This is further aggravating for purposes of sentencing
and the trial court was correct in viewing it as such.
[32] While the appellant’s personal circumstances sketched in the pre -sentencing
repor t remain relevant even in cases where a minimum sentence is involved (see S v
Malgas supra para 25) , I am guided , however, by the following dictum in S v Vilakazi
2009 (1) SACR 552 (SCA) para 58 as to the reduced role which an accused’s
personal circumstances will play at sentencing in cases of serious sexual offences :
‘In cases of serious crimes, the personal circumstances of the offender, by
themselves, will necessarily recede into the background. Once it becomes
clear that the crime is deservi ng of a substantial period of imprisonment the
question of whether the accused is married or single, whether he has two
children or three, whether he is employed are in themselves largely immaterial
to what that period should be and those seem to me to be what the kind of
‘flimsy’ grounds that Malgas said should be avoided. ’
[33] The personal circumstances of the appellant do not, in my view, qualify as the
kind of ‘weighty justification’ which would enable this Court to impose a period of
imprisonment less than the minimum sentence prescribed by law. Consequently, the
trial court’s assessment in this regard cannot be faulted .
[34] To impose a sentence less than life imprisonment on either count in this case
would be unjust and, in my view, result in a sentence which is unfair to the victim and
society at large. Indeed, the victim and society would, in such circums tance, likely
view the lesser sentence as shocking ly or disturbingly inappropriate.
[35] An enlightened and just sentencing policy or practice require s that the
punishment selected be one which ‘best fits the unique circumstances of the case
before court ’ and is sufficiently ‘victim -centred’ (S v Matyityi supra para 16) .
[36] This is particularly so with rape. In S v Matyityi supra para 16, it was held:
‘In South Africa victim empowerment is based on restorative justice.
Restorative justice seeks to emphasise that a crime is more than the breaking
of the law or offending against the state – it is an injury or wrong done to
another person. ... As in any true participatory democracy its underlying
philosophy is to give meaningful content to the rights o f all citizens, particularly
victims of sexual abuse, by reaffirming one of our founding democratic values
namely human dignity. It enables us as well to vindicate our collective sense
of humanity and humanness. ’
[37] The appellant is a sexual predator – he preyed on a young girl. His appetite
for rape knew no bounds. The multiple rapes perpetrated by the appellant was
appalling and caused outrage , understandably so . His victim , ZM, was a child and a
relative whom the appellant had a duty to protect. The appellant was invited into
ZM’s home by her parents when he migrated to the Western Cape from the Eastern
Cape in search of work. ZM’s parents provided the appellant with shelter and help to
find gainful employment . They also trusted him to be alone in their home with their
three young children, including their only daughter (ZM). The appellant betrayed that
trust by using it to gain access to ZM so that he could violate her by raping time after
time.
[38] ZM was in the appellant’s care after school w hen her parents were at work ,
and when her parents went away to the Eastern Cape for a funeral . He raped ZM no
less than five times in 2011 (count 2) and twice in 2014 (count 1) . On the weekend in
November 2011 when her parents went to the Eastern Cape , he raped ZM on the
Friday, the Saturday, and the Sunday . The appellant was relentless.
[39] The fact that the appellant on one occasion in 2011 sent ZM’s brother, A[...],
out of the house to buy something at a nearby shop, is a telling fact strongly
indicating that the appellant did not act impulsive ly on this occasion (nor on any of
the other instances too). He planned ZM’s rape by craftily creat ing an opportunity to
do so when he sent A[...] away to the shop . The same aggravating consideration
applies e qually when regard is had to the fact that, on each occasion when the
appellant raped ZM, there were no adults around in the home who could protect ZM
by stopping the appellant. His actions were, thus, not only deplorable but calculated.
[40] In addition to the emotional trauma which ZM, as a rape victim, necessarily
suffer ed from the brutal invasion of her bodily (i.e., physical) integrity, as a young girl
she was burdened with the fear of reporting the incidences of rape because of the
familial relation ship and out of fear of ret aliation from the appellant.
[41] By all accounts, ZM was a virgin when she was first raped by t he appellant.
He robbed ZM of her innocence , and the wonder and pleasure of experiencing her
womanhood at a time and a place of her choosing (ie, when she was ready ).
[42] For all these reasons, I find that the magistrate did not misdirect herself when
she found that there were no substantial and compelling circumstances which merit
a lesser sentence than that prescribed by law. I am also satisfied that the sentences
imposed were blended with a healthy dose of compassion and mercy. Counts 1 and
2 involved the commission of more than one rape which occurred on different days .
As such, they cannot be considered as one uninterrupted act . In the exercise of her
discretion for sentencing purposes , the magistrate treated each of the rapes
comprising count 1 and count 2 respectively as one for sentencing on each count .
[43] It was for this reason that the appellant was not sentenced to life
imprisonment for each of the seven acts of rape comprising counts 1 and 2 but to life
imprisonment for each count separately . As the magistrate’s exercise of her
discretion cannot be faulted, and no valid basis was argued on appeal, interference
with the sentences would be an overreach . See HL v S (A51/2019) [2019] ZAWCHC
49 (26 April 2019) .
Order
[44] In the result, I would propose that the appeal against the sentence on both
count 1 and count 2 be dismissed.
_____________________
F. MOOSA
ACTING JUDGE OF THE HIGH COURT
I agree , and it is so Ordered.
_____________________
L.G. NUKU
JUDGE OF THE HIGH COURT
Appearances
For app ellant: Adv I. M Sebueng
Instructed by: Cape Town Justice Centre
For respondent: Adv. M.J September
Instructed by: Office of the Director of Public Prosecutions, Cape Town.