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IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case no: A144/23
In the matter between:
M[...] T[...] Appellant
and
THE STATE Respondent
Coram: Le Grange J, Sher J et Dickerson AJ
JUDGMENT DELIVERED (VIA EMAIL) ON 25 JULY 2025
___________________________________________________________________
DICKERSON AJ:
Introduction
1. The appellant was charged with one count of contravening the provisions of
Section 3 read with Sections 1, 55, 56(1), 57, 58, 59, 60, 61 and 68 of the
Criminal Law Amendment Act (Sexual Offences And Related Matters) 32 of
2007, read with Sections 92(2), 94 , 256, 257, 261 and 281 of the Criminal
Procedure Act 51 of 1977, and further read with Section 120(4)(a) of the
Children’s Act, 38 of 2005.
2. The factual substratum of the charge was that on 14 March 2021 and at
Langa, the appellant unlawfully and intentio nally committed an act of sexual
penetration with the complainant, to wit PN (then aged 13 years) by inserting
his penis into her vagina without her consent.
3. The provisions of Section 51(1) and Schedule 2 of Act 105 of 1997 providing
for the prescribed min imum sentence of life imprisonment applied, because
the complainant was a child under the age of 16 years.
4. The appellant, who was represented at the trial, pleaded not guilty on
2 February 2023. He denied the allegations levelled against him but was
convicted as charged on 29 May 2023 after a full-blown trial.
5. After hearing argument, the court found there were no substantial and
compelling circumstances present to justify a departure from the prescribed
minimum sentence, and on 6 June 2023 accordingly sent enced the appellant
to the prescribed minimum term of life imprisonment. Three ancillary orders
were also made: in terms of Section 103(1) of the Firearms Control Act 60 of
2000 he was declared unfit to possess a firearm; it was ordered that his
particulars be entered in the National Register for Sex Offenders in terms of
Section 50(2)(a) of the Criminal Law Amendment Act (Sexual Offences and
Related Matters); and in terms of Section 120(4) of the Children’s Act, 38 of
2005, he was found to be unsuitable to work with children.
6. The appellant appeals to this Court against both his conviction and the
sentence. He does so in terms of the automatic right of appeal under Section
309(1) of the Criminal Procedure Act.
The material facts
7. The complainant was aged 13 years at the time of the commission of the
alleged offence, and 15 years at the time of the trial.
8. The State led evidence by three witnesses: the complainant herself, the
complainant’s father (“MN”), and Dr Alvaro Nevill Felix.
9. The complainant testified via closed circuit television during the trial, with the
assistance of an intermediary.
10. The appellant testified in his own defence and did not call any witnesses.
11. The complainant lived with her aunt in Goodwood due to family problems, and
her parents lived at 9 […] K[...] Hotel in Langa. The K[...] Hotel is a large hall
with multiple rooms, accommodating a number of other people.
12. The complainant had known the appellant before the incident in question. He
was a friend of her father and often visited the latter to watch television and
eat. He also accompanied the complainant’s parents to do shopping.
13. Broadly speaking, the complainant’s evidence was as follows:
13.1 At about m idday on 14 March 2021 she was sent by her aunt to the
K[...] Hotel collect her parents’ identity documents. She spoke to her
father, who gave her his identity document. Her mother was not at
home, so she went to look for her.
13.2 The complainant was initially accompanied on the search by a friend,
Luciano. After Luciano had left, the complainant returned to the K[...]
Hotel to search for her mother there.
13.3 At the K[...] Hotel she encountered the appellant who – as indicated
above – she knew as a friend of her father’s. He said he would
assist her to search for her mother but said that he first wanted to
collect a jersey from his room.
13.4 The complainant accompanied him to his room and waited at the
door. He invited her in and closed the door behind her. She had no
reason to fear him because he was a friend of her father.
13.5 The appellant moved closer and asked for a kiss. He said that she
was pretty. Initially she thought he was joking, but in any event
declined the kiss and thanked him for the compliment.
13.6 The appellant again requested a kiss, and she again declined. He
then pushed her onto his bed and held her by the throat with both
hands. He used one hand to push her jeans and underwear down
and proceeded to penetrate her vagina with his penis.
13.7 The complainant was able to kick and push herself free of him. She
stood up, pulled up her jeans and underwear and said that she was
going home and would tell people what he had done.
13.8 Before she left, the appellant threatened that if she were to tell
anyone, he would do ‘something’ to her younger sister, who was a
baby at the time and living with her parents.
13.9 The complainant initially wanted to catch a taxi to return to her aunt
in Goodwood. She encountered Luciano, however, who persuaded
her not to get into a t axi full of men on her own. Instead, the
complainant returned to her parents’ home. When her parents
arrived, they noticed that something was wrong and that she was
shaking. Luciano’s mother had also arrived, and believing that she
may be having a fit, offered to take her to the day hospital, which
they did.
13.10 The complainant said nothing about a rape until one of the Xhosa -
speaking at the day hospital spoke to her, to whom she then confided
what had happened, without revealing the identity of the rapist.
13.11 The cleaner reported this to the complainant’s father. He asked PN
who had raped her, but she would not reveal his identity.
13.12 The next day the complainant’s father again spoke to her, saying that
she would be haunted for the rest of her life if she kept quiet. She
she would be haunted for the rest of her life if she kept quiet. She
then revealed the appellant as the rapist. She was taken to the
Langa police to make a statement and taken to see a doctor (Dr
Felix) at the Karl Bremer Hospital and was examined.
14. Broadly speaking, the evidence of the complainant’s father corr oborated her
version regarding events preceding and following the alleged rape. He could
and did not provide any direct evidence capable of corroborating her account
of the rape itself because he was not there.
15. Dr Felix practices clinical forensic medicin e at the Karl Bremer Hospital,
Thuthuzela Care Centre. His work predominantly involves examination of
patients who are victims of sexual offences. In essence, his evidence
corroborated PN’s account in a number of respects, and was to the following
effect:
15.1 He examined the complainant on 15 March 2021 and reported his
findings in a written J88 medico-legal report, which formed part of the
record.
15.2 The complainant told him that her father’s friend had grabbed her by
the neck and forced her into his room where he sexually abused her
by penetrating her vagina with his penis.
15.3 Dr Felix observed two purple bruises on the complainant’s neck.
This indicated blunt force trauma to the neck, consistent with being
lightly throttled as described by PN.
15.4 The gynaecological examination revealed the following injuries :
(1) multiple superficial abrasions at the posterior fourchette; (2)
redness at the vestibule, fossa navicularis and para -urethral areas;
(3) tears at 4 o’clock and 8 o’clock on the margin of the hymen; (4)
no discharge; (5) ‘some’ bleeding.
15.5 Dr Felix concluded that the injuries he observed were consistent with
‘penetration by a blunt object likely by a penis or fingers ’ and ‘bruises
around the neck suggestive of being throttled/choked.’
16. The appellant denied the rape, and testified that he was elsewhere at the
time, at one Phatiswa’s place. As the trial magistrate observed, however, his
evidence on this score was inconsistent with what had been put to State
witnesses by his legal represen tative during cross-examination. Significantly,
the appellant called no witnesses to corroborate his version, which was
essentially that of an alibi.
The conviction
17. The above is merely a precis of the tenor of the evidence, which is more
carefully detailed in a lengthy judgment by the presiding magistrate. No
useful purpose would be served by reiterating this: it suffices to say that the
magistrate’s summation of the evidence is a fair and accu rate reflection of
what is contained in the record.
18. The learned magistrate correctly determined that the issue to be decided was
the identity of the rapist (there being no basis to doubt that a rape took place)
and the probity of the appellant’s alibi. In addressing these issues, one was
plainly mindful of and applied the cautionary rules applicable to a single
witness (which, in relation to the actual incident of rape, the complainant was).
He was alert to the fact that the complainant was a juvenile, tha t her father’s
evidence was circumstantial.
19. In evaluating the evidence, the court applied and considered these features
but nonetheless found PN to be a credible and reliable witness, who made a
good impression. He similarly found Dr Felix to be a good witness but formed
a less favourable impression of the complainant’s father, whom he
nonetheless found to be credible overall.
20. In contrast, the court found the appellant to be a poor witness who became
worse under cross-examination. Having read the record, it is hard to disagree
with this assessment. In the result, the appellant’s evidence was rejected as
false, and the complainant’s evidence was accepted.
21. An appeal court will be slow to interfere with the factual findings of a trial court
unless such findings are clearly wrong:
‘The powers of the court of appeal to interfere with the findings of fact of a trial
are limited. In the absence of any misdirection the trial court’s conclusion,
including the acceptance of a witness’ evidence is presumed to be cor rect.
To succeed on appeal, the appellant must therefore convince the court of
appeal on adequate grounds that the trial court was wrong in accepting the
witness’ evidence – a reasonable doubt will not suffice to justify interference
with its findings. B earing 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.’ 1
(emphasis supplied)
22. The onus is to prove the guilt of an accused beyond a reasonable doubt, and
an accused’s version cannot be rejected solely on the basis that it is
improbable: only once the trial court has found on credible evidence that the
explanation is fals e beyond a reasonable doubt can it be rejected. 2 The
corollary is that if the accused’s version is reasonably possibly true, the
accused is entitled to an acquittal. 3
23. In the absence of an irregularity or misdirection, a court of appeal will not
intervene with the credibility findings of the trial co urt unless it is convinced
that such findings are clearly wrong. 4
1 S v Francis 1991 (1) SACR 198 (A) at 198j - 199a.
2 S v Van der Meyden 1991 (1) SA 447 (W) at 448f-g].
3 S v V 2000 (1) SACR 453 (SCA) at 455B.
4 Francis n 1 at 204C - E] S v Mkohle 1990 (1) SACR 95 (A) at 100e.
‘… there are well -established principles governing the hearing of appeals
against findings of fact. In short, in the absence of demonstrable and material
misdirections by the trial court, its findings of fact are presumed to be correct
and will only be disre garded if the recorded evidence shows them to be
clearly wrong. The reasons why this deference is shown by appellate courts
to factual findings of the trial court are so well known that restatement is
unnecessary.’ 5
24. The trial court – as emerges from its comprehensive written judgment and
traversal of the evidence – carefully considered all the relevant and applicable
principles in evaluating the evidence.
25. There is no discernible misdirection on the part of the trial court: indeed the
complaints of a supposed misdirection advanced by the appellant’s counsel in
argument really amount to nothing more than dissatisfaction with the ultimate
findings made. Similarly, it cannot be said that the evaluation of the evidence
on any of the factual findings made by t he trial court are incorrect, still less
clearly incorrect. Probably for these reasons, the Appellant’s counsel properly
did not in oral argument pursue the appeal against conviction.
The Sentence
26. The appellant’s personal circumstances are as follows:
26.1 He was born on 4 January 1988, was 33 years of age at the time of
the incident and 35 years of age at the time of sentencing.
26.2 He was born and raised in Gauteng, where he lived with his parents
and two sisters. After his parents relocated to the Eastern Cape, he
remained in Gauteng and completed his education up to Grade 7
before also relocating to the Eastern Cape.
26.3 The appellant’s sisters are married with families of their own and live
in Cape Town and Gauteng respectively.
5 S v Hadebe [1997] ZASCA 86.
26.4 He left the Eastern Cape in 2006, an d until his arrest was employed
at various places. In particular, at the time of his arrest he was
employed at Truda Chips in Cape Town as a labourer doing
deliveries, where he earned an income of R160.00 per day.
26.5 He is not married but has an 8-year-old daughter who lived with her
mother (the appellant’s ex-girlfriend) in close proximity to him.
26.6 The appellant used his income to maintain himself and to support his
child. Of the R3 600.00 per month he would generally earn,
R1 000.00 would be paid towards his daughter. The child’s mother is
the primary caregiver and receives a social grant in respect of the
daughter who is currently receiving schooling.
26.7 He has only one previous conviction, dating back to 18 June 2008 for
possession of a dangerous dependent producing substance, for
which he was sentenced to a fine of R400.00 or 20 days.
26.8 During the sentence proceedings, the appellant revealed for the first
time that he is HIV -positive and has been receiving treatment for this
condition whilst in pris on. He had not used a condom during the
incident and did not alert the complainant to his HIV status to enable
her to take appropriate steps.
27. The trial court imposed a sentence of life imprisonment on the basis that it
could not find substantial and compe lling circumstances justifying a deviation
from the prescribed sentence of life imprisonment.
28. It is now argued on behalf of the appellant that the sentence imposed was
shockingly harsh and inappropriate. The main thrust of this argument is that
insufficient attention was paid to the potential to rehabilitate the appellant and
to enable him to contribute to society and his dependents.
29. The rape of a child under the age of 16 is a heinous abhorrent crime, hence
this type of rape being placed in the category o f crimes attracting a statutory
life sentence in the absence of substantial and compelling circumstances.
However, as Rogers J observed in CC;6
‘The decisions of our courts, including the Supreme Court of Appeal, reflect
that not infrequently perpetrato rs of this type of rape are not sentenced to life
imprisonment because substantial and compelling circumstances are found to
be present. If one examines the minutiae of leading cases it may be difficult
to discern why in some of them life sentences were u pheld where in others,
not apparently less heinous, substantial and compelling circumstances were
found exist. In S v PB 2013 (2) SACR 533 (SCA), Bosielo JA stated that
findings in prior cases cannot be elevated to the status of binding precedents
or benchmarks or allowed to become a straitjacket (paras 16 – 19). One must
thus distinguish between the legal principles to be deduced from authoritative
judgments and the detailed application of those principles to the facts of
particular cases. It is the leg al principles with which lower courts should
mainly concern themselves.’
30. The factors to be considered in determining whether substantial and
compelling circumstances exist are all the factors traditionally taken into
account in assessing an appropriate sen tence, bearing in mind that the
emphasis has shifted to the objective gravity of the type of crime and the need
for effective sanctions:7
‘If, after considering all the relevant factors, the court has not merely a sense
of unease but a conviction that injustice will be done if the prescribed
sentence is imposed or (to put it differently) that the prescribed sentence
would be disproportionate to the crime, the criminal and the legitimate needs
of society, there will be substantial and com pelling circumstances requiring
the court to depart from the prescribed sentence and to impose a lesser
sentence.’ 8
6 CC v S [2015] ZAWCHC 69 para 19.
7 S v Malgas 2001 (1) SACR 469 (SCA); CC para 20.
8 Id.
31. As observed in S v Abrahams: 9
‘..some rapes are worse than others” and “The life sentence ordained by the
Legislature should be reserved for cases devoid of substantial factors
compelling the conclusion that such a sentence is inappropriate or unjust. ‘10
32. The Act provides no gradation from the category of rapes by first offenders
which attract a sentence of 10 years (in terms of SS 51(2)(b)(i) read with Part
3 of Schedule 2) and those which attract a life sentence (in terms of SS51(1)
read with Part 1): a single circumstance may accordingly shift the offence
from the one category to the other. 11
33. It is therefore the sentencing court’ s duty to assess, upon a consideration of
all the circumstances of the particular case, whether the prescribed sentence
is proportionate to the particular offence. 12 The view that the prescribed
sentence can be departed from only if the circumstances are ‘exceptional’ has
been rejected in Malgas, and it is wrong for the sentencing court to assume
that a life sentence is proportionate for a crime falling into a particul ar
category. 13
34. As was observed in Vilikazi, it may be that the prescribed life sentence is
seldom imposed in cases that fall into a specific category, and if that occurs ‘it
will be because the prescribed sentence is seldom proportionate to the
offence’.14
35. In SMM, 15 in a review of the SCA’s decisions on rape sentencing, the court –
whilst recognising that the country was facing a ‘crisis of epidemic proportions
in respect of rape, particularly of young children ’, 16 and while emphasising
9 2002 (1) SACR 116 (SCA) para 29.
10 See also S v Mahomotsa 2002 (2) SACR 435 SCA, paras 17 – 19.
11 S v Vilikazi 2009 (1) SACR 552 (SCA) para 13.
12 Id para 5.
13 Vilikazi n 11 paras 15 to 18.
14 Id.
15 S v SMM 2013 (2) SACR 292 (SCA).
16 Id, para 14]
that rape is by its nature a ‘degrading, humiliating and brutal invasion of a
person’s most intimate private space, even when not accompanied by violent
assault’ 17 - repeated the injunction that punishment should not be
approached ‘in a spirit of anger ’ and that sentencing must be assessed
‘dispassionately, objectively and upon a careful consideration of all relevant
factors’ (my emphasis). 18
36. The public is rightly outraged by the scourge of rape, and there is increasing
pressure on the courts to impose harsher sentences. But sentencing cannot
be applied only to satisfy public demand for revenge – other sentencing
objectives, including rehabilitation, cannot be discarded if a balanced,
effective sentence is to be attained. 19
37. It must be recognised that there are categories of severity of rape. 20 As I read
the reported cases, the severity of a rape on the spectrum of gravity is
required and this is one of the relevant factors to be considered objectively
and dispassionately.
38. Whilst one must approach with caution the application of general principles to
the facts of specific leading cases as a benchmark of appropriate sentencing,
these do provide some assistance. I have reviewed a range of cases which
may provide some comparable indic ations of sentencing in these types of
cases.21 I will address some of these below.
39. In CC (supra), the appellant was convicted on two counts of raping children:
the first involved the oral rape of a 3-year-old boy; and the second involved
the digital rape of an 8-year-old girl. The appellant pleaded guilty on both
17 Para 17.
18 Para 13.
19 Para 14.
20 Para 18.
21 McLaggan v S 084/13. 3/06/2013 [SCA] ; MDT v S 548/2013. 20/03/2014 [SCA]; Maposa Frans
Madiba v S 497/2013. 20/03/2014 [SCA]; Thembelani Sogoni v S A243/21. 18/07/2022; Willem
Matroos v S A257/2022. 27/02/2023 [WCD]; Grootetjie v S (A78/2023) [2023] ZAWCHC 146 (14 June
Matroos v S A257/2022. 27/02/2023 [WCD]; Grootetjie v S (A78/2023) [2023] ZAWCHC 146 (14 June
2023); Grego Beat v S A227/23. 30/07/2024 [WC D]; William Munyai 546/2013. 28/03/2014 [SCA] ;
Sipho Ximba v S 1171/18. 16/09/2019 [SCA]; M.B v S A447/2015. 9/09/2016 [WC]; M.M v S
(CAF19/15) [2015] ZANWHC 63 (25 September 2015); Buso v S (A256/2021) [2022] ZAGPPHC 404
(17 June 2022).
counts, and the magistrate imposed two sentences of life imprisonment. The
appellant had himself been subject to sexual abuse in his youth but also had
two previous convictions for indecent assault of girls aged 4 and 5
respectively (one of whom was a member of his family, and the other a f amily
friend). The appeal court found the sentence of life imprisonment to be unjust
and disproportionate to the crime, the offence, and the legitimate needs of the
community. A sentence of 15 years of imprisonment, of which 5 years was
suspended, was imp osed in relation to the one count, and 12 years
imprisonment of which 3 years were suspended on the second count. The
court ordered that part of the unsuspended periods of imprisonment should
run concurrently, because an effective period of 19 years would be ‘too
crushing a punishment ’, and that an effective period of 13 years of
imprisonment struck the right balance.
40. In CC 22 the court had regard to the SCA decisions in both S v Mudau 23 and
S v EN, 24 in which the SCA set aside life sentences.
40.1 In Mudau the appellant, 47 at the time of sentencing, had raped his
13-year-old niece. He first penetrated her vagina with two fingers
and shortly thereafter with his penis, in an episode lasting about 5
minutes. Semen was subsequently found on the child’s underwear.
He paid her to buy her silence, denied the rape, and apparently
expressed no remorse. His abuse of trust in a family setting was
regarded as an aggravating feature but the rape itself occasioned no
serious injury to the victim and there was no additional violence. The
psychological trauma could not be assessed in the absence of a
victim report.
40.2 In EN, the appellant was a 46-year-old first offender who raped his
15-year-old stepdaughter. The latte r suffered no serious physical
injuries and had submitted to intercourse without threats of violence
but after having accepts gifts of money. The appellant had been
22 Note 6 para 25.
23 [2013] ZASCA 56 (9 May 2013).
22 Note 6 para 25.
23 [2013] ZASCA 56 (9 May 2013).
24 2014 (1) SACR 198.
drinking. Life imprisonment was found to be disproportionate, and a
sentence of 15 years imprisonment imposed.
40.3 In S v GK, 25 this Court set aside a sentence of life imprisonment for
the rape of a 7-year-old girl and substituted it with a sentence of 17
years imprisonment.
41. The appropriate test was articulated as follows in CC: 26
‘The court thus must not approach the present appeal with the mind that a life
sentence is a priori a just punishment for the appellant. Instead, I must
examine all the circumstances of the case and then ask myself whether I am
not merely uneasy at the imposition of a life sentence but have a conviction
that such a sentence would be unjust i.e. disproportionate to the crime, the
offence, and the legitimate needs of the community. Inevitably that e ntails
forming a view as to what a just sentence would be in all the circumstances of
the case, bearing in mind however that even discretionary sentences for
crimes dealt with in the Act (i.e. once substantial circumstances have been
found to be present) can be expected to be more severe than before.’
42. The learned magistrate in casu identified certain aggravating features of the
rape itself (apart from the age of the complainant, the force used during the
incident, the physical injuries suffered and the obvious psychological trauma).
Nevertheless, to this should be added the appellan t’s HIV status, but on the
spectrum of the severity of rapes with which our courts are routinely
confronted, not the most severe.
43. Reserving a sentence of life imprisonment for the most severe cases is not
the most appropriate manner of approaching the question of whether it should
be imposed in a particular matter as there is always a more horrific and brutal
rape imaginable. Non constat , however, that the converse applies: namely
that every rape of a minor requires a sentence of life imprisonment. This
seems to be the import of the authorities referred to in paragraphs 31 to 37
25 2013 (2) SACR 505 (WCC).
25 2013 (2) SACR 505 (WCC).
26 Para 26.
above. To adopt a different approach would not accord with the dictum by
Rogers J in CC (at paragraph 26) to the effect that:
‘The court thus must not approach the present appeal wit h a mind that a
life sentence is a priori a just punishment for the appellant. Instead, I must
examine all the circumstances of the case and then ask myself whether I
am not merely uneasy at the imposition of a life sentence but have a
conviction that such a sentence would be unjust, i.e. disproportionate to
the crime, the offence, and the legitimate needs of the community.
Inevitably that entails forming a view as to what a just sentence would be
in all the circumstances of the case.’
44. On application of the above principles, and on a conspectus of the facts, I am
satisfied that the sentence of life imprisonment is disproportionate to the crime
and the legitimate needs of the community, and places insufficient emphasis
on the prospect of appellant’s rehabilit ation and his ability to function in and
contribute to society.
45. The appellant is a comparatively young man. He held employment, was
economically active, and supported his child. To all intents and purposes he
has no previous convictions and there is no ev idence of this type of behaviour
on other occasions.
46. That the accused is to all intents and purposes a first offender, and did not
previously manifesting similar behaviour, is not in or of itself a substantial and
compelling circumstance. It is nonetheless a factor to be weighed, not only in
the light of the appellant’s prospects of rehabilitation, but also in relation to the
punitive and deterrent aspects of sentence.
47. Despite the dictum in S v PB (see para 29 above) that findings in prior cases
should not become straitjackets, I have found it unavoidable to have regard to
comparable cases and sentences handed down by the courts in other matters
(as indeed was done by this court in CC supra). Some of the cases to which I
(as indeed was done by this court in CC supra). Some of the cases to which I
had regard – and which I thought provided a reasonable basis for comparison
– are set out above. The facts of those cases speak for themselves.
48. I concluded that the magistrate had misdirected himself by over -emphasising
the aggravating factors, failing to take proper account of the accused’s
personal circumstances and prospects for rehabilitation, and in starting from
the a priori position that a life sentence was a just punishment per contra CC
supra.
49. In all the circumstances an appropriate sentence would, in my view, be 20
years imprisonment and in the result, I would propose the following order:
49.1 the appeal against the conviction should be dismissed;
49.2 the appeal against sentence should be upheld;
49.3 the sentence of life imprisonment set aside and substituted by a
sentence of 20 years imprisonment; and
49.4 the incidental orders made by the magistrate confirmed.
J DICKERSON
Acting Judge of the High Court
SHER J (LE GRANGE J concurring):
50. I have had the benefit of reading the judgment of my colleague. I agree that in
his comprehensive judgment the magistrate properly considered the relevant
principles applicable when evaluating the evidence and consequently the
appeal against conviction cannot be sustained.
51. Regrettably, I cannot agree with my colleague’s approach regarding the
sentence. He proposes that it should be substituted wit h one of 20 years
imprisonment, as he is of the view that the magistrate misdirected himself by
over-emphasising the aggravating factors, failing to take proper account of the
appellant’s personal circumstances and prospects of rehabilitation, and
proceeding from the a priori position that a sentence of life imprisonment was
a just punishment, contrary to the decision of this Court in 2015 in CC.27 In
that matter Rogers J (Veldhuizen J concurring) held, following the approach
which he had adopted (with Gamble J concurring, Matthee AJ dissenting)
some 2 years earlier in GK,28 that i n appeals involving the imposition of
prescribed minimum sentences an appellate court was entitled to make its
own value judgment as to whether there were substantial and compelling
circumstances present and, if it differed from the sentencing court in this
regard, to interfere and to substitute the sentence imposed with its own.
52. Whilst the rapes in both CC and GK are distinguishable from the one in this
matter (they involved penile oral and digital vaginal penetrations of children,
and none of the victims sustained any physical injuries), it is nonetheless
necessary to cons ider the decisions in these matters as my colleague’s
judgment is predicated on the approach which was adopted in them, and they
are frequently cited by counsel and followed in this Court as a basis to
interfere with sentences in appeals involving the rape of young children by
trusted adults in positions of care, power and/or authority.
53. I am of the view that the reasoning and approach which was adopted in both
CC and GK is not consistent with the ratio in Malgas (as confirmed in Dodo),
on prescribed minimum sentences and should accordingly not be followed. 29
To explain why I have come to this conclusion it is necessary to restate
certain fundamental principles in the light of their historical background.
The relevant principles
27 Note 6.
28 GK v S [2013] ZAWCHC 76 (majority judgment), [2013] ZAWCHC 77 (minority judgment of Matthee
AJ); 2013 (2) SACR 505 (WCC).
29 S v Dodo 2001 (1) SACR 594 (CC ) para 11. In Patmar Exploration (Pty) Ltd & Ors v Limpopo
Development Tribunal & Ors 2018 (4) SA 107 (SCA) para 3 the SCA confirmed that a court may
Development Tribunal & Ors 2018 (4) SA 107 (SCA) para 3 the SCA confirmed that a court may
decline to follow a previous decision by it if it finds that it was clearly wrong as a result of a
fundamental departure from principle, ’manifest oversight’, misunderstanding, or ‘palpable mistake’,
or the reasoning upon which its decision was based was clearly erroneous.
54. It is a trite and long-established principle of our criminal law that the imposition
of sentence is ‘pre-eminently’ a matter that falls within the discreti on of a trial
court 30 and, as such, is within its prerogative.31
55. As this discretion is a true discretion or, as it is also sometimes referred to, a
‘narrow’ one, it is equally well -established that an appeal court may not
interfere with a sentence that has been imposed in the exercise thereof simply
because it does not accord with the sentence it may have imposed had it
been seized of the matter, nor, in the words of Marais JA in the seminal
decision in Malgas,32 may it approach the question of sentence as if it were
the trial court and substitute the sentence imposed with its own one ‘simply
because it prefers it’.
56. As a result, it has consistently been recognised that (save where the
proceedings are beset by a material irregularity resulting in a failure of justice)
an appeal court may only interfere in two instances: where the sentence is
vitiated by a so -called ‘material misdirection’, or where the disparity between
the sentence which would have been imposed by it had it been the sentencing
court, and that which that court imposed, is so marked that it can properly be
described as inducing a sense of shock, or as ‘startlingly or disturbingly’
inappropriate.33 A ‘misdirection’ is simply a term used to refer to an error that
was committed by the court, either in determining or in applying the facts
relevant to assessing an appropriate sentence. As the central enquiry in an
appeal against sentence is not whether it was right or wrong, but whether the
trial court exercised its discretion properly and judicially, a mere misdirection is
not in itself sufficient to allow for interference on appeal, and it must be
material i.e. of such a nature or degree of seriousness that it shows, directly
30 The earliest recitation of this principle by appellate courts, that I could find, was some 100 years
ago, in R v Mapumulo 1920 AD 56; and then R v Ramanka 1949 (1) SA 417 (AD) at 420. Since then,
it has been repeated as an incantation in so many matters that it is not necessary, nor is it feasible, to
provide references in this regard.
31 Malgas n 7 para 13; S v Hewitt 2017 (1) SACR 309 (SCA) para 8.
32 Id para 12.
33 Malgas id; S v Motloung [2016] ZASCA 96; 2016 (2) SACR 243 (SCA) paras 6 -7; Hewitt n 31 para
8.
or inferentially, that the tri al court either failed to exercise its discretion at all,
or that it exercised it improperly or unreasonably.34
57. It is equally trite that when engaging in the exercise of its discretion i.e. in
arriving at an appropriate sentence a trial court is required t o have due regard
for the triad of factors first enunciated in Zinn: 35 the nature and seriousness of
the offence, the interests of the community and the accused’s personal
circumstances. A trial court will be held to have materially misdirected itself
where it failed to have any, or due, regard for any of the circumstances which
traditionally form part of these component factors. Thus, it is commonly
accepted that a material misdirection has occurred if the trial court left out or
ignored one of these fact ors or their component circumstances, or under - or
over-emphasised any at the expense of others.
58. In 1997 the legislature adopted the Criminal Law Amendment Act 36 (‘the
CLA’), which made provision for the setting aside of all death sentences which
had previ ously been imposed and a process for their substitution with
alternative sentences, and the introduction of so -called ‘prescribed minimum
sentences’ in the case of certain serious offences. The sentences, which
came into effect on 1 May 1998, were intended to be temporary, short -term
measures, which were to be in place for 2 years, to deal with an ‘alarming
burgeoning’ in the commission of certain crimes and the ‘tide of criminality
which threatened to engulf society’. 37 However, they are now permanent
fixtures of our sentencing landscape.
59. As for the terms of imprisonment which are to be imposed as prescribed
minimum sentences, section 51 read with Parts 1 -3 of Schedule 2 to the Act
provides for a gradation, based on the categorised severity of certain liste d
offences, principally those of murder, rape and aggravated robbery, depending
on the circumstances attendant on their commission and whether the accused
on the circumstances attendant on their commission and whether the accused
is a 1 st, 2 nd or 3 rd offender. As far as the offence of rape is concerned, the
34 S v Pillay 1977(4) SA 531 (A) at 535E-F.
35 S v Zinn 1969 (2) SA 537 (A).
36 Act 105 of 1997.
37 Malgas n 7 para 7.
most severe of the prescribed sentences, that of life imprisonment, is to be
imposed on all offenders (even if it is their first such offence) where their
victim is raped more than once or by more than one person, or by a person
who has two previous convictions for rape, or who commits the offence
knowing that he has HIV/AIDS, as well as in instances where the victim is
under the age of 16 or is physically disabled or mentally ill.38
60. However, the CLA provides that where a court is satisfied that ‘substantial and
compelling circumstances’ exist which justify the imposition of a lesser
sentence than the one prescribed in any case, it must enter those
circumstances on the record of proceedings and may then impose such lesser
sentence it deems fit. 39 As the Act does not define what such circumstances
are it was left to the courts to give meaning to the term. This resulted in
divergent interpretations by the different divisions.40
61. In Van Wyk 41 this division adopted the approach that these circumstances
included all those which had previously been referred to as mitigating
circumstances and which served to diminish an offender’s moral
blameworthiness. In Gauteng there were conflicting approaches. In
Mofokeng42 it was held that they had to be circumstances that were so
unusual and exceptional in nature that they were compelling, whereas in
Blaauw43 and Homareda44 it was held that they were all the circumstances
which a court had traditionally considered when imposing sentence, including
both mitigating and aggravating ones, weighed cumulatively. If, in doing so,
the court concluded that the prescribed minimum sentence would b e ‘grossly
disproportionate’ ( Blaauw) or disproportionate ( Homareda) to the crime
committed or to the sentence which would otherwise previously have been
appropriate ( Homareda), the necessary test was met for the imposition of a
lesser sentence.
38 Section 51(1) read together with paras (a) and (b) of Part 1 of Schedule 2.
39 Section 51(3)(a).
39 Section 51(3)(a).
40 The decisions are cited in Malgas n 7 fn 3.
41 S v Van Wyk 2000 (1) SACR 45 (C) at 49J-50A.
42 S v Mofokeng & Ano 1999 (1) SACR 502 (W) at 523c-d, 524c-d.
43 S v Blaauw 1999 (2) SACR 295 (W).
44 S v Homareda 1999 (2) SACR 319 (W) at 321i-j and 325i.
62. The questi on of which of these approaches was correct was settled by the
SCA in Malgas,45 a decision which is cited with monotonous regularity in
cases involving prescribed minimum sentences. Unfortunately, this is yet
another instance where it is necessary to refer to it, as the principles which
were laid down in it constitute the lens through which the decisions in GK and
CC must be considered.
63. At the outset of his exposition Marais JA pointed out that by prescribing
minimum sentences that applied in certain catego rised instances the
legislature aimed at ensuring there would be a ‘severe, standardised and
consistent’ response from the courts unless there were ‘truly convincing’
reasons to deviate therefrom, as the emphasis had shifted to the objective
gravity of the listed offences and the public’s need for the imposition of
effective sanctions against them. 46 He then dealt with the effect which the
legislative prescription of minimum sentences had on the powers of
sentencing courts. He held that the provisions const ituted ‘generalised
statutory injunctions ’ to impose set sentences, which rested not upon the
circumstances of the case, or the personal circumstances of the offender, but
simply upon whether the offences of which an offender had been convicted
fell within the specific categories set out in Schedule 2.47
64. Thus, a sentencing court no longer had a ‘clean slate’ on which to ‘inscribe’
whatever sentence it would otherwise have previously deemed fit. 48 Instead, it
was required to approach the question of sentenc e conscious of the fact that
the legislature had ‘ordained’ the applicable prescribed minimum sentence as
the sentence which should ordinarily be imposed, and it was required to
respect and not merely pay lip service to the legislature’s wishes.49
45 Note 7.
46 Id, para 8.
47 Para 14.
48 Para 8.
49 Para 25.
65. As to t he provision that, where the court was satisfied that ‘substantial and
compelling circumstances’ existed which justified a departure from a
prescribed minimum sentence it had the power to decide upon an alternative
sentence, whatever ‘nuances of meaning mi ght lurk’ in the phrase its central
aim was that the specified sentences were not to be departed from ‘lightly’
and for ‘flimsy’ reasons which could not withstand scrutiny. These included
‘speculative hypotheses’ favourable to the offender, ‘maudlin sympat hy’ and
an aversion to imprisoning 1 st offenders.50 In general terms therefore they
were circumstances which could be seen to be substantial and compelling in
contrast to those of ‘little significance or debatable validity’, or which reflected
a ‘purely personal preference unlikely to be shared by many.’51
66. For the rest however the legislature had not intended to exclude any or all of
the many factors and circumstances which were traditionally taken into
account by courts when sentencing offenders,52 nor were these required to be
‘exceptional’.53 Ultimately, the court was required to determine whether the
cumulative impact of all the circumstances relevant to sentence justified a
departure from the standardised response which the legislature had
ordained.54 If, after considering all such circumstances the sen tencing court
was satisfied that they rendered the prescribed minimum sentence unjust, in
that it would be disproportionate to the crime, the criminal and the needs of
society, such that an injustice would be done by imposing it, it was entitled to
impose a lesser sentence.55
67. In practical terms therefore, where a court’s sense of unease about imposing
a prescribed minimum sentence had ‘hardened into a conviction’ that an
injustice would be done, it would usually be satisfied that the circumstances
rendered the imposition thereof unjust or disproportionate, and they would be
entitled to be characterized as substantial and compelling.56
50 Para 9.
entitled to be characterized as substantial and compelling.56
50 Para 9.
51 Para 18.
52 Para 9.
53 Para
54 Para 25G.
55 Para 25I.
56 Para 22.
The decisions in GK and CC
68. With that by way of background, I turn to the decisions in GK and CC. In CC a
boy aged 3 and a girl aged 8 were subjected to penile oral and digital vaginal
rape, respectively. In GK a 7 -year-old girl was subjected to penile oral
penetration. None of the victims in the two matters sustained any physical
injuries. As for emo tional and psychological sequelae it was found that the 3 -
year-old in CC was, on the face of it, seemingly unaffected by what had
happened as he had been too young to understand what had been done to
him, and the 8 -year-old was said to be ‘functioning nor mally’ for her age.
However, later in the judgment it was also said that she had become anxious,
fearful and shameful about what had happened and was experiencing
headaches and stomach pains. The 7-year-old in GK had required counselling
and had become withdrawn, distressed and plagued by feelings of guilt and a
sense of poor self -image. She had also started bedwetting and display ed
signs of errant behaviour.
69. In both matters the offenders had previous convictions for sexual offences. In
CC the 41-year-old accused, who had himself been subjected to oral rape by
an older boy when he was about 8 years old and later anal rape by him, had
been convicted some 10 years earlier of two counts of what was then known
as ‘indecent assault’, in the form of digital vagina l penetrations i.e. rapes of
two girls aged 4 and 5 years, for which he had been sentenced to 10 years
imprisonment.
70. On appeal the sentence of life imprisonment which had been imposed on him
was altered to an effective term of 13 years imprisonment. In GK, the 58-year-
old accused had previously been convicted of attempted rape some 11 years
earlier, for which he had been sentenced to 4 years imprisonment. His
sentence of life imprisonment was altered on appeal to 17 years
imprisonment.
71. In GK, the majority remarked that the prescribing of certain minimum
sentences had effectively deprived the courts of their ordinary sentencing
discretion unless there were substantial and compelling circumstances. The
presence or absence of such circumstances was therefore t he jurisdictional
fact on which the existence, or not, of such a discretion depended. 57 A
determination as to whether there were such circumstances was not a matter
of discretion but a ‘value judgment’, 58 in the sense referred to in Media
Workers Associati on59 (which concerned the determination of whether an
employer’s conduct constituted an unfair labour practice), review cases 60
concerning whether legal practitioners who had been subjected to disciplinary
proceedings were fit and proper persons to continue practising, and the
prescribed minimum sentence decisions in Homareda 61 and PB.62 In its view,
unless there were clear indic ations in the CLA that the making of this value
judgment had been ‘entrusted solely to the discretion’(sic) of the trial Court, an
appellate court might form its own view as to whether such circumstances
were present or not.63
72. On the majority’s reading, the test on appeal as to a trial court’s findings in
relation to the presence or absence of substantial and compelling
circumstances was left open in Malgas.64 Although in some decisions
subsequent to it, including decisions by the SCA, one could find statements to
the effect that the trial court had misdirected itself regarding whether there
were substantial and compelling circumstances present, or not, and on this
basis appeal courts had held they were accordingly at liberty to reconsider the
matter, those cases ha d not pertinently addressed what the ‘appropriate’
appellate test was.65
57 Para 3
58 Para 4.
59 Media Workers Association of SA & Ors v Press Corporation of SA Ltd 1992 (4) SA 791 (A) at
800C-G.
60 Vide the cases cited at fn 1 in GK. The most recent decision, on appeal, is that in SA Legal Practice
Council v Kgaphoke & Ano [2025] ZASCA 66.
61 Note 44.
62 S v PB 2013 (2) SACR 533 (SCA), also cited as Bailey v S [2012] ZASCA 154.
63 GK para 4.
64 Para 5.
65 Para 7.
73. The majority referred66 to the decision in Bailey (more commonly referred to
as PB following it s citation in the criminal report s),67 where Bosielo JA held
that the approach on appeal to evaluating sentences imposed in prescribed
minimum sentence cases differed from that which applied in relation to those
instances where sentences were imposed by courts under the ‘ordinary’
sentencing regime. In the case of the former the ‘proper enquiry’ was to
determine whether the facts and circumstances which were considered by the
sentencing court were substantial and compelling or not. To this end, all the
circumstances bearing on the question had to be examined and the appeal
court was not confined to having regard only for the circumstances which the
trial court took into account.
74. The majority took this to mean that the appeal court could form its own view
as to the correct answer to the question, and there was nothing in the CLA
which fettered its powers to reconsider the issue of substantial and compelling
circumstances. It also held that t he values of the Constitution were better
served by an interpretation which did not fetter an appeal court when it
considered the question of whether substantial and compelling circumstances
were present or not; and allowing it to make its own value judgment on appeal
would provide an accused with ‘greater safeguards’ against the imposition of
disproportionate punishments.68
75. It held further that, given the dictum of Nugent JA in Vilakazi69 that it would be
wrong for a sentencing court to assume, a priori, that a prescribed minimum
sentence was proportionate to an offence listed in the CLA, an appeal against
its imposition should likewise not be approached by an appellate court with a
view t hat it was, a priori, a just punishment. 70 What the appeal court was
required to do was to ask itself whether it was not merely uneasy at the
imposition of such a sentence, but had a conviction that it would be unjust i.e.
imposition of such a sentence, but had a conviction that it would be unjust i.e.
disproportionate to the triad , an d answering this question inevitably entailed
66 Id.
67 Note 62.
68 Id.
69 Note 11 para 18.
70 GK n 28 paras 11 and 14.
forming a view as to what a just sentence would be in all the circumstances of
the case. If the ‘notional’ just sentence postulated by the appeal court fell
materially below the prescribed minimum sentence, the re would be
substantial and compelling circumstances present to depart from the
prescribed sentence. It was not necessary that the disparity was such that it
induced a sense of shock or that it was disturbingly inappropriate.71
76. After setting out its reasoning for the approach that it considered should be
adopted the majority then went on to pronounce on certain aspects of the
circumstances pertaining to the offence and the appellant. In its view, the rape
which had been committed fell ‘well short’ of the most serious types of rape for
which a life sentence would ‘ordinarily’ be a just sentence, in the new
dispensation. It was an oral rape which, although disgusting, was ‘far less
calculated’ to injure and cause physical pain than a vaginal or anal one and
there was no evidence that the complainant had suffered injuries or
‘significant’ pain. In addition, the rape was of brief duration and was not
accompanied by extraneous violence. It seemed to have been a spur of the
moment act of sexual gratification, and t he accused may have been
influenced by the alcohol he had consumed. Although the complainant
required therapy and further counselling for the emotional and psychological
sequelae of the incident, these did not appear to be of an extreme and
debilitating nature.
77. As for the appellant’s previous conviction for attempted rape some 11 years
earlier, the majority considered that it was fair to assume that the offence had
not been particularly heinous as the appellant had only been sentenced to a
relatively light term of 4 years imprisonment (in terms of s 276(1)(i) of the
Criminal Procedure Act72) and his previous conviction should accordingly not
be given ‘undue prominence’. 73 As for as the instant offence for which the
be given ‘undue prominence’. 73 As for as the instant offence for which the
accused was convicted, prior to the enactment of the CLA (which broadened
the definition of rape to include non -vaginal penetrations), it would only have
71 Id, para 14.
72 Act 51 of 1977.
73 GK para 24.
constituted the common law offence of indecent assault, for which it would
probably have received only a few year s imprisonment. Thus, in its view, to
say that life imprisonment was the just sentence to impose upon a crime
which only a few years before would have been punished with a few years
imprisonment, seemed to be going ‘considerably too far’. 74 As a result it
reduced the sentence of life imprisonment to one of 17 years imprisonment
78. That then as far as GK is concerned. Some 2 years later, in CC,75 the Court
endorsed the approach it had adopted in GK for interfer ing with a lower
court’s determination regarding th e question of substantial and compelling
circumstances viz. that a s an appellate court it was at liberty to make its own
value judgment thereof and if it differed with that of the sentencing court, it
was entitled to reduce the prescribed sentence which ha d been imposed. To
this end it endorsed the approach it had adopted in GK that it was entitled to
form a view as to what it considered a (notional) just sentence should have
been and if it ‘fell materially’ below the prescribed minimum sentence imposed
there would be substantial and compelling circumstances present, even if the
disparity was not striking or disturbingly inappropriate and did not induce a
sense of shock.76
79. As it did in GK (where it was described as the most recent relevant decision of
the SCA), it referred to Mudau, 77 where in 2012 a sentence of life
imprisonment which was imposed on a 47 -year-old who had raped his 13 -
year-old niece, was set aside and substituted with one of 15 years
imprisonment, and the decision in 2014 in EN, 78 where a 46 -year-old who
had raped his 15-year-old stepdaughter had his sentence of life imprisonment
also reduced to 15 years imprisonment.
An evaluation
74 Id para 29.
75 Note 6 para 18.
76 Id, para 26.
77 Mudau v S [2013] ZASCA 56; also reported as S v SMM 2013 (2) SACR (SCA) 292.
78 S v EN 2014 (1) SACR 198 (SCA).
(i) Ad GK and CC
80. That the assessment of whether there are substantial and compelling
circumstances present, or not, in a matter where a prescribed minimum
sentence is applicable, involves a value judgment by a sentencing court and
not the exercise of a discretion, was rece ntly confirmed (albeit obiter) in the
minority judgment of Kollapen J in the decision of the C onstitutional Court in
Tuta,79 with reference to the decisions in Homareda, PB and GK. Kollapen J
noted that the far -reaching change which the CLA had introduced, whilst not
removing a judicial officer’s sentencing discretion, had fettered it to some
extent, and had resulted in a sentencing framework which might pose a higher
risk to the freedom of the individual and to considerations of a fair trial. 80 This
allowed for a wider scope for interference by an appellate court in cases
involving prescribed minimum sentences, as opposed to those where a
sentencing court had exercised a discretion, in the t rue sense. In making this
remark Kollapen J referred 81 to the comments made by Bosielo JA in PB,
previously referred to.
81. I understand Kollapen J’s remarks to mean no more than to contrast the
restraint and deference which an appeal court must exercise and show in its
evaluation of a matter which involved the exercise of a true, ordinary
sentencing discretion, where the trial court was entitled, within the bounds of
reason and rationality, to impose its own, preferred, individually tailored choice
of sentence, a choice which an appeal court is ordinarily bound to accept, as
opposed to a case where the sentencing court did not have that choice and
was bound to impose a minimum sentence prescribed in terms of the CLA,
unless there were substantial and compelli ng circumstances present. This is
clear from the justification which Bosielo JA gave in PB 82 that a different
approach was warranted because , as per Malgas, the minimum sentences to
approach was warranted because , as per Malgas, the minimum sentences to
be imposed are ordained by the Act and cannot be departed from lightly or for
flimsy reasons , and it followed therefore that the ‘proper enquiry ’ on appeal
79 S v Tuta 2024 (1) SACR 262 (CC) paras 166, 172-180 and 184.
80 Id paras 181 and 183.
81At para 184.
82 Note 62 para 20.
was whether the facts which were considered by the sentencing court were
substantial and compelling or not.
82. In my view, whilst the sentencing regime which has be en imposed by the CLA
altered the sentencing discretion i.e. the powers of and the process which a
trial court must engage in when imposing sentence, at heart that has not
materially and fundamentally altered the process which an appellate court
must engag e in , and its powers, when considering an appeal against a
minimum sentence imposed in terms of the CLA , (save in relation to the
‘striking disparity’ power which does not apply) ; and when interpreting and
giving effect to the CLA care should be taken not to transplant and make
applicable to the appeal court, the process that must be engaged in by the
sentencing court. If one does not honour the distinction between the different
processes which the two levels of adjudication must perform one may
inadvertently rupture long -standing, well -established principles that have
applied for a century in our criminal law in relation to the powers and functions
of sentencing courts vis-à-vis those of appellate courts. It is the function of the
court of first instance i .e. the sentencing court to arrive at, and to impose, an
appropriate sentence and the function of an appellate court to supervise and
regulate this power by correcting errors made in the exercise thereof, and the
roles should be kept separate and distinct from one another.
83. In Malgas, the fons et origo of the current state of the law relating to the
function that a sentencing court must exercise when determining whether to
impose a prescribed minimum sentence, Marais JA noted 83 that some of the
courts which had to deal with the problem of what to make of the prescribed
minimum sentence/’substantial and compelling’ provisions had resorted to the
processes of thought employed, and concepts developed by, courts dealing
with appeals against sentence, an approac h which was problematic and likely
with appeals against sentence, an approac h which was problematic and likely
to lead to errors in giving effect to the intention of the legislature.
83 Note 7 para 11.
84. In making these remarks Marais JA was pointing out that in attempting to
arrive at a cogent, working definition of what constituted substantial and
compelling circumstances, trial courts were inadvertently seeking to transplant
reasoning which was applicable to the determination of appeals, into their
process. In my view, in certain instances, such as in GK and CC, the converse
has also happened i.e. appellate courts have resorted to employing processes
of thought and concepts which have been developed for the exercise by trial
courts of their power to determine whether to impose prescribed minimum
sentences, to the consideration of appeals against them.
85. It is surely no accident that, directly after making his remarks about
sentencing courts wrongly transplanting the reasoning of appellate courts into
their determination of what constituted substantial and compelling
circumstances, Marais JA went on to s et out the essential differences
between the functions of the two courts. He pointed out 84 that the mental
process which a trial court engaged in, in the exercise of its sentencing
discretion, involved considering the circumstances of the case before it in the
light of the well-known triad of factors and circumstances relevant to sentence
and, in the light thereof, to impose a just and appropriate sentence. In
exercising its oversight function the duty and function of the court of appeal
was to respect the trial court’s choice of sentence, arrived at in the exercise of
its discretion, unless there was a material misdirection i.e. error in its
reasoning, or there was such a striking disparity between the sentence it
would have imposed and that which was imposed by the trial court, that it was
shockingly or disturbingly inappropriate or induced a sense of shock. It was
not the function of the court of appeal, he said, to approach the question of
sentence as if it were the trial court and to substitute the trial court’s sentence
sentence as if it were the trial court and to substitute the trial court’s sentence
with one it chose simply because it preferred it. To do so would be to usurp
the discretion of the trial court (and, it may be added, its function).85
84 Id para 12.
85 Id.
86. The learned judge of appeal warned 86 that the long -established tests for
interference with sentences on appeal ha d been evolved in order to avoid
subverting basic principles that are fundamental to our law of criminal
procedure viz that the imposition of sentence is the prerogative of the tr ial
court; for ‘good reason’, and it is not for appellate courts to interfere with that
exercise of discretion unless it is convincingly shown that it ha s not been
properly exercised.
87. Maintaining the distinction between the functions and approaches of the two
courts should, in my view, not be abandoned because of the ‘substantial and
compelling’ enquiry which a sentencing court must now engage in, and I see
no reason why the ‘material misdirection’ test should not apply as the
standard basis for interferen ce on appeal in prescribed minimum sentence
cases, just as it does in in the case of ordinary sentencing cases.
88. To say that in a matter where a prescribed minimum sentence may be
applicable a sentencing court performs a ‘value judgment’ does not mean that
it engage s in some arcane, extraordinary process hitherto unknown to our
law. As was explained in Malgas, at the outset the court must engage in
exactly the same exercise that a sentencing court would engage in ordinarily:
it must carefully and methodicall y identify the relevant circumstances which
must be taken into account insofar as they may impact on the sentence to be
imposed, including the circumstances pertaining to the nature and
seriousness of the offence and the interests of the community (usually these
include aggravating circumstances) as well as those pertaining to the offender
(usually these include personal, mitigating circumstances impacting on the
offender’s blameworthiness). At this stage therefore, whether substantial and
compelling circumstances exist is, was said in DPP Gauteng Division ,87 a
factual enquiry. Once it has concluded this step, the court must then weigh
factual enquiry. Once it has concluded this step, the court must then weigh
these circumstances, just as it would in an ordinary sentencing case. The only
difference at this point is that whe reas in an ordinary sentencing case the
86 Para 13.
87 Director of Public Prosecutions, Gauteng Division, Pretoria v D.M.S & A.O.L .
[2023] ZASCA 65; 2023 (2) SACR 113 (SCA) para 19.
result of the weighing will point it towards a choice of possible sentences (or a
combination thereof) amongst a variety of options ranging from a warning,
fine, or term of correctional supervision, to a term of imprisonment it considers
appropriate (direct or suspended, partially or wholly); in a prescribed minimum
sentence case it can only, and must ordinarily, impose a term of imprisonment
which is specified by the CLA, unless it finds that cumulatively the net weight
of the circumstances it took into account are such that they render the
imposition of the prescribed sentence unjust i.e. disproportionate.
89. Given that, where a court does find such circumstances to be present it is at
large to exercise the very same, ordinary sentencing discretion that it would
have in cases where a prescribed minimum sentence does not apply , it
seems, in my view, to be illogical and principally unsound for an appellate
court to apply a different test (i.e. its ‘own value judgment ’) to an appeal in a
prescribed minimum sentence case, than the test it would apply to an appeal
in an ordinary sentencing case (the ‘material misdirection’ test). After all, in its
result the exercise engaged in by the sentencing court in arriving at the
sentence imposed in such a case will in effect be the same as that which
would be engaged in by it in a non -prescribed sentence case. Why then
should there be a different ‘own value judgment’ test in appeals in prescribed
minimum sentence cases, where a sentencing court has found that there
were no substantial and compelling circumstances present? Why is there a
need for a deviation from the standard, ‘material misdirection’ test?
90. Reduced to its essentials, the function of an appeal court in a matter involving
a prescribed minimum sentence is not materially dissimilar to that which it
performs in an ordinary i.e. non -prescribed minimum sentence appeal. It must
assess the evidence to determ ine whether the sentencing court properly and
assess the evidence to determ ine whether the sentencing court properly and
correctly identified all the relevant factors and circumstances for sentence that
a sentencing court would ordinarily consider. The only difference is that it must
thereafter determine whether the sentencing court weighed them correctly as
substantial and compelling , or not . If, in doing so, it concludes that the
sentencing court misdirected itself materially either by failing to have regard
for any relevant factors and circumstances, or due or proper regard for them
(by under or over-emphasising any), it will then be entitled to interfere with the
sentence that was imposed a quo. To then determine a fair and appropriate
sentence it will be compelled , at this juncture, and because of the CLA , to
make its own value judgment of the factors and circumstances before it, to
determine whether on the basis of the test expounded in Malgas they qualify
as substantial and compelling i.e. whether they constitute weighty and
convincing reasons for not imposing the sentence prescribed by the
legislature. As is the case in a sentencing court of first instance, s uch
circumstances will be present if the combined, cumulative weight and effect of
them, properly evaluated, is such as to render the imposition of the prescribed
minimum sentence unjust or disproportionate.
91. In the circumstances , whilst it is so that the test for appellate interference in
prescribed minimum sentence cases was not express ly set out in Malgas,
which is understandable as it dealt with the issue of what constitute d
substantial and compelling circumstances for a sentencing court faced with
the application of the CLA, I do not agree that it was left open , as was held in
GK. On my reading of Malgas and its restating of the trite principles pertaining
to interference on appeal (with particular regard to the application of the
‘material misdirection’ test) and the importance of abiding by these principles ,
which have been long-established and are in place for ‘good reason’, it was
effectively endorsing them as applicable also to appeals in prescribed
minimum sentence cases, without expressly saying as much.
92. In my view, for reasons of principle , harmony and consistency a court of
appeal in a prescribed minimum sentence case should therefore not be
entitled to interfere with a sentencing court’s determination as to the existence
or not of substantial and compelling circumstances, by making its own value
or not of substantial and compelling circumstances, by making its own value
judgment of them, unless and until it first finds that the sentencing court’s
determination of them i.e. its value judgment , was wrong, as a result of a
material misdirection.
93. On my reading of them, the authorities referred to in GK (as endorsed in CC
and Tuta) do not support the ‘own value judgment’ test that GK introduced and
instead effectively support and endorse the traditional ‘material misdirection ’
test that applies in appeals in ordinary se ntencing cases, as the test that
should also apply in prescribed minimum sentence appeals.
94. In Media Workers Association 88 the Appellate Division distinguished the
exercise of a (true) discretion from a value judgment, on the basis that in the
case of the former a number of courses are available to the repository of the
power, and in exercising a choice in this regard he/she will be acting within
their powers and their decision accordingly cannot ordinarily be set aside,
merely because a reviewing/appeal body would have chosen a different
course. It held with reference to the facts before it that , in contrast to this, the
power to determine whether certain acts constitute d an unfair labour prac tice
was not discretionary. It was a determination or ‘value’ judgment to be arrived
at by a court in the light of all the relevant considerations and did not involve a
choice between permissible alternatives. In respect of such a
judgment/determination a court of appeal could well come to a different
conclusion.89 In its subsequent decision in Wijker 90 the AD held that this
meant that a court of appeal was entitled to substitute its own (‘value’)
judgment on an issue in question, if it was of the view that the lower court had
erred in its conclusion i.e. in its determination/value judgment. In Homareda 91
Cloete J (as he then was) consequently held that, as the determination of
whether or not there were substantial and compelling circumstances involved
making a value judgment, in accordance with the decision in Wijker a court of
appeal was entitled to substitute its own judgment on this issue if it was of the
view that the sentencing/lower court had erred in its conclusion in this regard.
95. Similarly, on my reading of PB the issue on appeal, as identified by the SCA,92
was whether the lower court had erred in not finding that the facts which were
was whether the lower court had erred in not finding that the facts which were
put forward by the appellant, who had raped his own 12 -year-old daughter,
were substantial and co mpelling, such that they justified a departure from the
88 Note 59.
89 Id at 800C-G.
90 Wijker v Wijker 1993 (4) SA 720 (AD) at 727E-728B.
91 Note 44 at 326c-d.
92 Note 62 paras 14 and 22.
prescribed sentence of life imprisonment. The appellant had pleaded guilty
and expressed remorse to the probation officer, and the complainant had not
sustained any physical injuries but had suffered emotional and psychological
sequelae in the form of anxiety, fear, guilt, shame , anger and mood swings,
and had been compelled to leave school as she fell pregnant because of the
rape. The SCA held that the high court had erred in finding that there were
substantial and compelling circumstances present and confirmed the
sentence of life imprisonment which had been imposed by the regional court.
In doing so it is notable that, even though it was dealing with an appeal in a
prescribed minimum sentence case, in which it held that a somewhat different
approach was to be followed than that which applied in the case of appeals in
ordinary sentencing cases, the SCA reiterated the fundamental principle that
sentencing discretion lies pre-eminently with the sentencing court.93
96. In Tuta 94 Kollapen J similarly accepted that since a court brings out a value
judgment when it makes a determination as to the existence or not of
substantial and compelling circumstances, an appellate court is entitled (as
per Homareda) to interfere with that decision if an error has occurred and
Malgas sets the threshold for such interference. Even in GK 95 the Court noted
and agreed with the dictum in Homareda that a court of appeal is entitled to
substitute its own value judgment on the issue of whether substantial and
compelling circumstances were present, if it is of the view that the lower court
erred in its conclusion.
97. In the circumstances to jump from an acceptance of the proposition that
interference on appeal in relation to the issue of substantial and compelling
circumstances is only justified where the lower court has misdirected itself ,
which accords with the long -established approach in ordinary sentencing
cases, to holding that such interference is permissible even where there is no
cases, to holding that such interference is permissible even where there is no
misdirection, and simply because the appeal court has made its own value
93 Id para 19.
94 Note 79 para 184.
95 Note 28 para 5.
judgment which differs from that of the lower court , seems to me to be
conceptually unsound and against fundamental principles.
98. In several decisions in rape matters since GK and CC, including factually
comparable matters such as EN96 (2014), Zulu97 (2021) and Maila98 (2023)
where the prescribed minimum sentence of life imprisonment was imposed by
the courts a quo on men in positions of trust, care and/or authority who had
raped children, as well as in DPP Gauteng Division99 (2023), which involved
the rape of a 12-year old by her 21 -year old female and 17 -year old male
cousins, the SCA applied the material misdirection test to determine whether
the lower court had erred in relation to its assessment of whether there were
substantial and compelling circumstance s, and whether it was therefore at
liberty to interfere with the prescribed sentence imposed. This tallies with the
approach adopted by it in earlier, important decisions that followed Malgas,
such as Vilakazi 100 (in 2009), where the material misdirection test was also
applied.
99. In my view there is accordingly no need for a different approach or test, such
as the ‘own value judgment’ test , and no reason why the standard test which
applies in appeals in ordinary sentencing cases should not apply to appeals in
prescribed minimum sentence cases. Given that the prescribed minimum
sentence regime has now been in place for well -nigh on 27 years, during
which time a substantial body of case law has been built up in respect of
matters involving such sentences, there is also no need to have the ‘own
value judgment’ test as an additional or ‘greater safeguard’, to protect
offenders.
100. I also have difficulty with the approach that was adopted in GK and endorsed
in CC that an appeal court in a prescribed minimum sentence case is entitled
to form its own view as to what a just sentence would be in all the
96 Note 78.
97 Director of Public Prosecutions, Pretoria v Zulu [2021] ZASCA 174, paras 18 and 30.
97 Director of Public Prosecutions, Pretoria v Zulu [2021] ZASCA 174, paras 18 and 30.
98 Maila v S [2023] ZASCA 3 paras 43, 46 and 56.
99 Note 87 para 22.
100 Note 11 para 31.
circumstances and, in order to do so, is entitled to have regard for sentences
which have been imposed in other, factually comparable cases , and if the
notional just sentence that it arrives at by means of this exercise is ‘materially’
below that imposed by the sentencing court , substantial and compelling
circumstances will be present which justify a departure from the prescribed
minimum sentence. As previously pointed out, i n pursuance of this approach
the courts in GK and CC referred to the decisions in Mudau and EN, in which
terms of imprisonment less than life imprisonment were imposed, and my
colleague has likewise referred to them.101
101. In my view this approach is also conceptually unsound for several reasons. In
the first place, it runs directly against the grain of the sentencing regime and
process that was introduced by the CLA, which proceeds from the premise
that prescribed minimum sentences are ordinarily to be applied to offenders
convicted of certain offences. The legislature introduced these sentences not
because it considered them to be just but because it considered them to be a
necessary and effective remedy to deal with a burgeoning crime rate and
violent crimes against women and children in particular. The fairness or
justness of these prescribed sentences is not the initial, primary consideration
that a sentencing court is faced with in a matter where they may be
applicable. Its initial consideration is simply whether the prescribed minimum
sentence is applicable to the offender before it. As was pointed out in Malgas,
that does not depend on the sentencing circumstances of the case but on the
categorisation of the offence for which the offender has been convicted. If it
falls within the applicable category and Schedule in the CLA , the prescribed
minimum sentence must, in ordinary circumstances , be imposed on the
offender and the sentencing court is not relieved from the duty of imposing it,
offender and the sentencing court is not relieved from the duty of imposing it,
as it is statutorily obliged to do so, whether or not it considers the sentence to
be just. It must be convinced , for substantial and weighty reasons , that
imposing the prescribed sentence w ill be unjust in the sense that it w ill be
disproportionate to the triad, before it is entitled not to impose it. Thus, the
101 In fn 21 of his judgment he cites several other cases which he says (in para 38), he reviewed, and
which provided some comparable indications of sentencing. H owever he does not set out or discuss
the rationes or the facts of these cases or the sentences which were imposed in them.
essential qu estion it must answer is not whether the prescribed minimum
sentence will be a just sentence, but whether it w ill be an unjust one. These
are not equivalent enquiries to which the answers are the same, in the sense
of being opposite sides of the same coin. The question of wh at sentence will
be just is one which is asked by a sentencing court exercising its ordinary
sentencing discretion, the question of whether a sentence will be unjust is the
one asked by a court wh ich is ordinarily required to impose it because it is
prescribed in terms of the CLA.
102. In the second place, a sentencing court in a prescribed minimum sentence
case is surely only entitled to have regard for lesser sentences which were
imposed in factually comparable cases (for which such cases serve as
guidelines not straitjackets , in the words of PB102), after it has arrived at a
conclusion that imposing the prescribed minimum sentence would be
unjust/disproportionate because there are substantial and compelling
circumstances present, and not before, because it is only at that point that it is
at liberty to exercise a sentencing discretion and not before. It cannot use the
sentences imposed in other cases as the rati onale for holding that imposing
the prescribed minimum sentence in the case before it w ill be
unjust/disproportionate, on the basis that they establish or constitute
substantial and compelling circumstances . That would be putting the cart
before the horse and amount to a failure to do what it is supposed to do,
which is to determine whether the circumstances of the case before it, not
those in other cases that were previously heard, amount to substantial and
compelling circumstances. In Nkunkuma 103 the SCA held that to approach a
matter in which a prescribed minimum sentence is applicable as if the
sentencing yardstick is the sentences imposed i n a range of other disparate
cases and then to ask whether the prescribed minimum sentence c an be
cases and then to ask whether the prescribed minimum sentence c an be
considered too severe, against that benchmark, constitutes a misdirection.
103. In the third place, if one is to have regard for sentences in comparable rape
cases (of children by older males in positions of care, power and/or authority),
102 Note 62 paras 17 and 19: S v D 1995 (1) SACR 259 (A) at 260e.
103 S v Nkunkuma & Ors [2013] ZASCA 122; 2014 (2) SACR 168 para 10.
a proper survey should include not only those cases where lesser sentences
were imposed by the SCA on appeal, such as the decisions in Mudau and
EN,104 but also to the legion of cases before and after GK and CC where
lesser sentences were increased by it to sentences of life imprisonment, after
it held that the lower (appeal) or sentencing court had erred in its assessment
of whether there were substantial and compelling circumstances, or where it
confirmed sentences of life imprisonment which had been imposed. In this
regard, reference may be made to the decisions in PB (in 2012), Munyai 105
and MDT106 (2014), TM 107 and Buthelezi 108 (2019/2020), Zulu (2021) and
Maila (2023).
{ii} Ad the dissenting judgment
104. I agree with my colleague that the magistrate ’s summation of the evidence is
a fair and accurate reflection of what was contained in the record. As a result,
in t he absence of any demonstrable and material error or ‘misdirection’ the
magistrate’s factual findings are presumed to be correct.109
105. My colleague correctly points out that in determining whether there were
substantial and compelling circumst ances present all the circumstances that
would traditionally have to be considered for sentence should be taken into
account, as directed by Malgas. These, he says, should then be weighed to
determine whether the prescribed sentence of life imprisonment is
‘proportionate’ to the offence. He notes that, although in SMM110 the SCA
recognized that the country was facing a crisis of epidemic proportions in
respect of rape, particularly of young children, it held that the imposition of
punishment should not be imposed in a spirit of anger, but dispassionately
and objectively, upon a careful consi deration of all relevant factors. The
104 Vide EN at paras 10 and 14 and Mudau at para 13.
105 Munyai v S [2014] ZASCA 36.
106 MDT v S [2014] ZASCA 15; also reported as S v MDT 2014 (2) SACR 630 (SCA).
106 MDT v S [2014] ZASCA 15; also reported as S v MDT 2014 (2) SACR 630 (SCA).
107 Director of Public Prosecutions, Grahamstown v TM [2020] ZASCA 5.
108 Director of Public Prosecutions , Gauteng Division, Pretoria v Buthelezi [2019] ZASCA 170; 2020
(2) SACR 113 (SCA).
109 Hadebe n 5 para 11; Bee v Road Accident Fund 2018 (4) SCA) 366 (SCA) para 46.
110 Note 15 paras 13 and 14.
decision in SMM is the same decision which is referred to by my colleague
and by the majority in GK as Mudau, in accordance with its then citation on
SAFLII, before it was reported as SMM in the SA Criminal Reports. It was
handed down on 9 May 2013, two weeks before the decision in GK.
106. My colleague points out, with reference to the decision in SMM, that it must be
recognized that there are categories of severity of rape and this is one of the
factors that must be taken into account. He finds that on the spectrum of
severity of rapes with which our courts are routinely confronted, the one in this
matter is not the ‘most severe’.
107. He says that the magistrate correctly identified certain aggravating features of
the rape in this matter, apart from the age of the complainant, the force used
during the incident, the physical injuries suffered and the ‘obvious’ (sic)
psychological trauma, to which he adds the appellant’s HIV status. Despite
saying this however, he comes to the view that the magistrate misdirected
himself by over -emphasising the aggravating factors, failing to take ‘proper’
account of the accused’s personal circumstances and his prospects for
rehabilitation, and in commencing from the a priori position that a life sentence
was a just punishment, contrary to the decision in CC.
108. Consequently, he concludes that the sentence of life imprisonment is
disproportionate to the crime and the ‘legitimate needs’ of the community , and
places insufficient emphasi s on the prospects of the appellant’s rehabilitation
and his ability to function in and contribute to society.
109. I differ with the approach he has adopted towards the matter, as well as in his
evaluation of the circumstances and factors relevant to the quest ion of
sentence.
110. My colleague correctly referred to the salient principles which are to apply, as
set out in Malgas, but in my view he has failed to apply them. Thus, instead of
set out in Malgas, but in my view he has failed to apply them. Thus, instead of
carefully determining whether the magistrate correctly identified and weighed
the component circumstances of the triad of factors that are relevant to the
imposition of sentence and correctly concluded that their cumulative effect
was not such as to render the imposition of life imprisonment disproportionate,
he applies the ‘own value judgment’ test adopted in GK and CC, and to this
end looks at lesser, reduced sentences that were imposed on appeal in two
matters (Mudau/SMM and EN ) which were decided prior to GK/CC. No
consideration was given to decisions of the SCA, post GK and CC, where ,
based on the test espoused in Malgas sentences imposed by lower courts in
comparable matters were increased to life imprisonment, or where sentences
of life imprisonment were confirmed. He uses the sentences imposed on
appeal in Mudau/SMM and EN to arrive at a yardstick or benchmark to arrive
at a notional just sentence, against which to weigh the sentence imposed by
the magistrate , and then . because of the resultant disparity between the
imposed sentence and his notional one, to find that there are substantial and
compelling circumstances present which justif y a departure from the
prescribed minimum sentence.
111. For the reasons I previously set out, in my view s uch an approach is wrong,
and if one applies the correct test, in accordance with Malgas, it is evident that
the magistrate did not misdirect himself in any way , by failing to have any or
proper or due regard for any of the circumstances relevant to sentence , and
the sentence imposed accordingly cannot be interfered with . In this regard
and starting with the nature and gravity of the offence, the following. Whilst it
is so that the rape was not of the ‘most severe’ kind that the court has had to
deal with, this does not avail the appellant. As was pointed out in Mahomotsa
111 because more serious cases than the one under consideration are
imaginable, it does not follow that something should be kept in reserve for
them and the sentence imposed in the case at han d should be
correspondingly lighter. There will always be cases which, although differing in
correspondingly lighter. There will always be cases which, although differing in
their respective degrees of seriousness, justify the imposition of the maximum
penalty possible. As Nugent JA pointed out in Vilakazi 112 there is always a
‘greater horror’ imaginable.
111 S v Mahomotsa 2002 (2) SACR 435 (SCA); [2002] ZASCA 64 para 19.
112 Note 11 para 54.
112. It seems to me that, as was held in Zulu 113 (where the SCA reversed a
sentence of 20 years imprisonment which was imposed by the High Court on
each of 3 counts, in an appeal by a stepfather who raped his mino r
stepdaughter, and re-instated sentences of life imprisonment which had been
imposed by the regional court), my colleague has ‘underplayed’ the
seriousness of the offence and the circumstances in which it was committed.
113. This is evident, firstly, from the fact that, in describing the complainant’s
injuries with reference to the report of her examination by Dr Felix, he records
that she sustained ‘superficial’ abrasions to her genitalia and ‘some’ bleeding,
and that she had been ‘lightly’ throttled. Whilst it is so that Dr Felix referred to
the multiple abrasions that the complainant sustained as superficial and that
there was some bleeding on examination, this does not mean that the injuries
which she sustained can properly be characterized as minor. The complainant
was a child of 13 years at the time of the rape. On examination a day
afterwards she presented with two (large) linear-shaped bruises on either side
of her neck, measuring approximately 5cm x 1cm and 4cm x 2 cm in size,
which Dr Fel ix ascribed to her ‘likely’ (not ‘lightly’) being throttled, multiple
superficial abrasions to an area of her genitalia as well as redness, and
several tears in her hymen, consistent with penetration with a blunt object ,
and there was still some bleeding. Dr Felix did not record the superficiality of
the bruising or the extent of the bleeding in parenthes es, and by doing so my
colleague gives the impression that they were minimal or slight, and that this
lessens the severity of the assault. I see the fact t hat a day after the rape the
complainant was still bleeding as an aggravating factor which underscores the
severity thereof. According to both Dr Felix and the complainant the violence
meted out to her caused her significant bruising and pain.
meted out to her caused her significant bruising and pain.
114. In their totality, given the age and physique of the complainant , the injuries
which she sustained were serious and bear testament to the savage assault
which the appellant launched on her. This was clearly no impulsive, ‘spur of
the moment ’ act but a planned and devious one, which constituted a gross
113 Note 97 para 30.
betrayal and breach of the trust which the complainant had reposed in the
appellant, a s a friend of her father. Knowing that she was alone and
vulnerable he lured her into his room on the pretext of fetching a jersey,
before they were to set forth to look for her mother.
115. After she refused to give him a kiss, he pushed her onto his bed and, whilst
throttling her, removed her jeans and underwear and ra ped her. Fortunately,
she was able to struggle , push and kick herself free , but the experience must
have been a terrifying one for her . When she arrived at home she was in a
terrible state: her one arm was flailing, and she was distraught and shaking to
such an extent that her mother thought she was having a fit.
116. When she fled from the appellant, he threatened that he would hurt her baby
sister if she told anyone what had happened to her. Such was the fear that the
appellant instilled in her that she did not reveal what he had done to her, even
after a cleaner at the hospital was able to gain her trust. It was only after her
father told her that she would be haunted for the rest of her life if she did not
reveal who was responsible, that she disclosed the appellant’s identity.
117. Furthermore, a side from the physical injuries she sustained in the rape the
complainant suffered severe emotional and psychological damage, and the
incident had a profound and lasting effect on her. She has recurrent
nightmares, never walks alone, does not trust any of her father’s male friends
and continues to require counselling. She also had to change schools.
118. As far as the appellant’s personal circumstances are concerned, as has
frequently been pointed out in such matters and without in any way attempting
to be cynical, none of them are of such a nature or kind , individually or
cumulatively, as to distinguish him from scores of other men like him, who
have abused their positions of trust, care and authority and have raped
have abused their positions of trust, care and authority and have raped
children, and they are not substantial and compelling.
119. As far as rehabilitation generally is concerned, it is well -established that when
it comes to serious offences listed in the CLA, such as r ape, murder and
robbery, it must pale in importance as against the other stated aims of
punishment such as retribution and deterrence , and societ y’s need to give
expression to its sense of outrage. 114 My colleague seems to have found that
the appellant enjo ys reasonable prospects of rehabilitation as he is a
‘comparatively’ young man, 115 who was economically active in support of his
child and was, for all intents and purposes, a 1 st offender. Whilst I recognise
these circumstances, in my view they do not suffice to establish that the
appellant is a real candidate for rehabilitation, nor do they serve to entitle him
to be given a lesser sentence than the one prescribed. To be capable of being
rehabilitated an offender needs to show , in the first place, that he/she has
acknowledged what they have done by owning up to, and accepting
responsibility for, it. Then he needs to show that he is truly contrite for what he
has done. The appellant has not done so. He pleaded not guilty, as he was
entitled to do, and steadfastly denied that he had raped the complainant. He
maintained this position even after he was convicted. The appellant has not
shown that he regrets what he has done , let alone that he is remorseful for
it.116 There is no indication from the evidence that he even appreciates and
understands the enormity and gravity of his actions.
120. It was pointed out in Keyser 117 that a lack of appreciation and an absence of
responsibility do not bode well for an offender’s prospects of rehabilitation and
in Dyantyi 118 it was remarked that in the absence of sincere contrition an
offender’s prospects of rehabilitation are unrealistic . In any event, as Navsa
JA noted in Ngcobo 119 it does not necessarily follow that the imposition of a
shorter term of imprisonment will always have a greate r rehabilitative effect
114 S v Mhlakaza & Ano 1997 (1) SACR 515 (SCA) at 519d; S v Swart 2004 (2) SACR 370 (SCA).
114 S v Mhlakaza & Ano 1997 (1) SACR 515 (SCA) at 519d; S v Swart 2004 (2) SACR 370 (SCA).
115 In S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) para 23 it was held, with reference to
the 27-year-old offender, who was six years younger than the appellant was in this matter at the time
when he committed the rape, that courts should not subve rt the will of the legislature in relation to the
imposition of prescribed minimum sentences by resorting to ill -defined concepts such as ‘relative
youthfulness’ or ‘other vague and ill -founded hypotheses that appear to fit the particular sentencing
officer’s personal notion of fairness. ‘
116 Id Matyityi para 13 as to the difference between regret and remorse.
117 S v Keyser 2012 (2) SACR 437 (SCA) para 29.
118 S v Dyantyi 2011 (1) SACR 540 (ECG).
119 Director of Public Prosecutions, Kwazulu-Natal v Ngcobo & Ors 2009 (2) SACR 361 (SCA) para
22.
and an offender’s rehabilitation is only one of the considerations one must
have regard for when sentence is being imposed.
121. As far as the seriousness of the offence and the interests of the community is
concerned it is also not necessary for me to recite the oft -quoted dictums in
the cases as to the humiliating, degrading and brutal invasion of privacy and
dignity that rape entails,120 the appalling and perverse abuse of male power
that it represents ,121 and the ravaging damage it inflicts on young children ,
often scarring them emotionally and psychologically for the rest of their lives.
As my colleague noted , some 1 3 years ago in SMM/Mudau the SCA
recognised that the country w as facing a crisis of epidemic proportions in
respect of the rape of young children. From the remarks made by it in a series
of decisions since then it is clear that the crisis has not abated and if anything,
has increased. Thus, in 2020 in DPP Grahamstown/TM 122 the SCA remarked
that the country was facing a ‘pandemic’ of sexual violence against women
and children and in 2023 in Maila 123 it commented that the rape of women
and children was rampant and had reached such alarming proportions that we
had amongst the highest rape statistics in the world, even higher than certain
countries that were at war.
122. As is evident , in at least 6 factually comparable matters since GK and CC
(over almost 10 years between 2014 and 202 3),124 involving male figures in
positions of trust, care and /or authority who raped young children, the SCA
held that the cumulative effect of the ir personal circumstances , weighed
against the circumstances of the rapes they had committed , were not
sufficiently weighty as to constitute substantial and compelling circumstances ,
and it accordingly u pheld sentences of life imprisonment that were imposed
by lower courts , or increased lesser sentences imposed to sentences of life
imprisonment. As recently as 2023, in Maila 125 the SCA entreated courts,
imprisonment. As recently as 2023, in Maila 125 the SCA entreated courts,
120 S v Chapman 1997 (2) SACR 3 (SCA) para 5.
121 S v Jansen 1999 (2) SACR 368 (C) at 378G-379B.
122 Note 107 para 15.
123 Note 98 para 57.
124 MDT and Munyai (2014), Buthelezi (2019), TM (2020), Zulu (2021) and Maila (2023)- for the
citations see above.
125 Note 98 para 59.
given the onslaught of rape on children, not to ‘shy away ’ or ‘retreat’ from
imposing the ultimate sentence of life imprisonment in appropriate c ases, In
my view this is a case where such a sentence is properly warranted and
applying it will in no way be disproportionate to the triad of factors relevant to
sentence, or unjust . In his model and exemplary judgment the magistrate did
not proceed on the basis that a sentence of life imprisonment was a priori a
just one and gave meticulous a nd proper consideration to all of the
circumstances relevant to sentence , and there is accordingly no cause or
reason to interfere.
123. I would accordingly dismiss the appeal and confirm both the conviction and
the sentence.
M SHER
Judge of the High Court
LE GRANGE J:
124. I have had the privilege of reading the detailed judgment s of my colleagues.
Regrettably, I cannot agree with the judgment of Dickerson AJ. In my view, the
persuasive reasoning in the judgment of Sher J is eminently sound , and I
concur with it. In the result the appeal against both conviction and sentence is
dismissed.
A LE GRANGE
Judge of the High Court
Appearances:
Appellant’s attorney: L Adams (Legal Aid, Cape Town)
Respondent’s counsel: Adv J Van der Merwe (DPP, Cape Town)