IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
ZAKHONZE STEPHEN DASHEKA
and
THE STATE Reportable/Not reportable
Appeal number: A147/2024
Appellant
Respondent
Neutral citation: Dasheka v S (A147/2024) [2025] ZAFSHC 173 (12 June 2025)
Coram: Loubser Jet Opperman J
Heard: 10 March 2025
Delivered: 12 June 2025
Summary: Criminal law and procedure -appeal against conviction of raping a four-year
old child and the sentence of life imprisonment
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ORDER
The appeal against both conviction and the sentence is dismissed.
JUDGMENT
Loubser J (Opperman J concurring)
[1] The appellant in this appeal is a 49-year old male person who was convicted in the
Bloemfontein Regional Court of raping a four-year old girl by penetrating her vagina and her
anus with his finger. On 23 June 2023 he was sentenced by the court a quo to life
imprisonment in terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997. He now
appeals both his conviction and sentence. Having been sentenced to life imprisonment , the
appellant enjoys an automatic right of appeal in terms of s 10 of the Judicial Matters
Amendment Act 42 of 2013.
[2] The record of proceedings shows that the child in question was living with her 75-
year old grandmother in her house in Freedom Square, Bloemfontein. The appellant stayed
in a room in the same house, which he rented from the child's grandmother. The child herself
testified through an intermediary in the proceedings . At the time she gave her testimony ,
she was already seven years old and in grade 2. The State also called the grandmother to
testify. A medical report by a forensic nurse was handed in by the State, in which it was
indicated that the medico-legal examination of the child the morning after the alleged events,
revealed no injuries on the genitals and the anus of the child. However , it is also indicated
in the report that the absence of injuries does not exclude the happening of the incident
reported by the victim.
[3] The child testified that on Christmas morning, the appellant called her to his room
while indicating that he had bought her new clothes. He then closed the door behind them
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and showed her the new clothes. The appellant went on to undress the child's pants and
panty, and made her sit on the bed. Thereafter he inserted his fingers into her vagina and
her anus. It was painful and she started to cry. When her grandmother came to the room to
enquire why she was crying, she told her what the appellant had done.
[4] The grandmother testified that she was sleeping in her own room on that morning,
and she heard the appellant calling the child saying that he had bought her Christmas
clothes. She then heard the child crying, and she got out of her bed to go and investigate.
She saw the child coming out of the room of the appellant, holding her panty in her hand.
The child then told her what had happened.
[5] When the appellant testified in his defence, he confirmed that he had bought the
child clothes for Christmas, and that she entered his room to receive the clothes on his
invitation. According to him, he then gave her the clothes and told her to go and fit it in her
grandmother's quarters, which she did. She later returned indicating that it was a perfect fit,
he testified. In cross-examina tion, he conceded, though, that his rent was fully paid and he
was on good terms with the grandmother. He also denied that the child was crying at all.
[6] In his judgment on the merits of the matter, the presiding magistrate dealt with the
cautionary rule with regard to child witnesses and remarked that the child had made a very
favourable impression on him. He added that the child withstood extreme cross-examination
and explained the events in great detail. The magistrate went on to describe the
grandmother as an excellent witness. As for the appellant, the magistrate found that he did
not make a favourable impression on the court. He rejected the appellant's version of
denying anything that could implicate him with a sexual offence, and came to the conclusion
that his version was clearly opportunistic, unreliable and untrustworthy.
[7] Now, an appeal court's power to interfere with the findings of the trial court on the
aspect of credibility, is limited. In S v Francis1 the court remarked as follows in this regard:
'This court's powers to interfere on appeal with the trial court are limited .... Bearing in mind the
advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional
circumstances that the court of appeal will be entitled to interfere with a trial court's evaluation of oral
testimony.'
[8] As a result hereof, and upon a proper consideration of the evidence adduced in the
1 S v Francis 1991 (1) SACR 198 (A) at 204C-E.
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court a quo, I have no hesitation in finding that the appellant has been correctly convicted.
His appeal against conviction stands to be dismissed.
[9] The appeal against sentence remains to be decided. The appellant was sentenced
to life imprisonment in terms of s 51 (1) of the Criminal Law Amendment Act. In sentencing
the appellant, the trial magistrate found that there were no substantial and compelling
circumstances justifying a deviation from the minimum sentence of life imprisonment
prescribed by the said Act. In the appeal it was submitted on behalf of the appellant that the
court a quo had erred in finding as such. The fact that he was 49 years of age, that he has
two children, that he is not married, that his highest level of education is Grade 9, that he is
for all intents and purposes a first offender and that he was unemployed doing only odd jobs,
that the child sustained no injuries and that the penetrations were done by a finger and not
a penis, justified compelling and substantial circumstances, it was submitted.
[1 O] This brings to mind a number of principles relating to the question of substantial and
compelling circumstances. A court of appeal can generally only interfere with a sentence if
it is clear that an irregularity during the sentencing stage, that the court a quo misdirected
itself in respect of the imposition of sentence, or that the sentence imposed was disturbingly
or shockingly inappropriate.2 A court of appeal is also not free to interfere with the sentence
if it might have imposed a different sentence had it been the court of first instance.3
Furthermore, courts should not depart from the prescribed minimum sentences lightly and
for flimsy reasons.4 A proper enquiry on appeal is whether the facts which were considered
by the sentencing court are substantial and compelling , or not.5
(11] In the present matter the aggravating circumstances of the matter consist mainly of
the following: the victim was a little girl of only four years, the appellant raped her on her
own premises where she was supposed to feel protected and safe, and lastly, he was in a
position of trust since he was an adult man living on the same premises.
(12] Again, I have no hesitation in finding that the aggravating circumstances far
outweigh the proposed mitigating factors. It follows that the court a quo correctly held that
there were no compelling in substantial circumstances present.
2 S v Petkar 1988 (3) SA 571 (A) at 57 4C.
3 S v Nechehe 2005 (2) SACR 386 (W) at 388C.
4 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) para 23.
5 S v PB [2012] ZASCA 154; 2013 (2) SACR 533 (SCA) para 20.
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[131 I make the following order:
The appeal against both conviction and the sentence is dismissed.
Loubser, J
I concur:
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Appearances:
For the Appellant: S. Kruger
Legal Aid, Bloemfontein
For the Respondent: S. Tunzi
Instructed by: The Office of the Director of Public Prosecutions:
Free State, Bloemfontein