REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: A15/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 29/07/2025
SIGNATURE:

In the matter between:

SELLO PRINCE MABELA APPELLANT

And

THE STATE RESPONDENT
_______ _____
JUDGEMENT


KGANYAGO J

[1] The appellant was arraigned in the regional court Mahwelereng on o ne count
of rape read with the provisions of section 51(1) and Schedule 2 of the

Criminal Law Amendment Act 1 (CLAA). It is alleged that in the process of
raping the complainant, the appellant had inflicted grievous bodily harm on the
complainant. The appellant had pleaded not guilty to the charge, however, the
court a quo convicted him as charged and sentenced him to life imprisonment.
In terms of section 309(1)(a) of the Criminal Procedure Act2 as amended, the
appellant has automatic right of appeal by virtue of been sentenced to life
imprisonment. The appellant is appealing against sentence only.

[2] The background facts are briefly as follows. The complainant testified that on
16th December 2022 she left her homestead in Mosesetjane around past
17h00 in order to go and assist her aunt at her workplace in town. After work
she went to the taxi rank to go and catch a taxi back home which is extension
14. When she arrived at the tax i rank there was only one taxi that was left.
The driver of that taxi was the appellant whom she started knowing during
2016. She boarded that taxi and it drove towards extension 14. On the way to
extension 14 some passengers were alighting from the taxi. When the
complainant was supposed to alight from the taxi, the appellant requested her
not to alight. The appellant told the complainant that he was still going to drop
some other passengers in extension 19 and that he will drop her later. As the
complainant knew the appellant, she did not have a problem with that.

[3] After dropping the passengers in extension 19, the appellant received a call
that he must drive back to town to take the last load and drop it in Masodi and
Moshate. As it was already at night at about 20h00, the complainant agreed to
drive back to town together with the appellant, and that the appellant will drop
her last after he had transported other passengers. After transporting all the
passengers, the appellant told the complainant t hat he was taking the taxi to
its owner and that his friend who is also a taxi driver will transport them, and

its owner and that his friend who is also a taxi driver will transport them, and
they will find his friend at the cross -road waiting for them. They dropped the
taxi at its owner’s place and walked to the cross-road.


1 105 of 1997
2 51 of 1977

[4] On arrival at the cross -road, they found a taxi waiting for them. Inside the taxi
there was a boy and girl. They boarded the taxi and it drove away. At
Mahwelereng cross -road, the appellant told the taxi driver that he was
alighting. The taxi stopped and the appellant alighted from the taxi. Since the
complainant did not know the occupants of the taxi, she alighted together with
the appellant. After alighting the appellant told the complainant to accompany
him to the tavern where he bought alcohol. After buyi ng alcohol, they went
back to the cross -road where they hitchhiked. They boarded a sedan vehicle
which the appellant seems to know the driver as they were happy to see each
other.

[5] The appellant requested the complainant to accompany him so that he could
buy alcohol for the driver of the sedan vehicle, and thereafter the driver will
drop them in extension 14. They bought alcohol and thereafter the driver of
the sedan dropped the appellant and the complainant in extension 14. The
appellant told the complainant that he first wanted to go to his homestead a nd
take a jersey so that he could accompany the complainant home. They went
to the appellant homestead, and on entering the house the complainant sat on
the sofa. Later the appellant came back in posse ssion of a bread knife, and
told the complainant to undress. The complainant refuse d, and the appellant
stabbed the complainant with that knife on her finger on her right hand. The
complainant sustained an open wound. The complainant ran to wards the door
on the right hand side which was closed, and when she opened it she found a
woman asleep with two children.

[6] On entering the room the complainant woke up the woman who was asleep
and tried to explain to her what was happening. As the complainant was trying
to explain, the appellant entered the room holding a knife. The woman in the
room was the appellant’s mother. The appellant’s mother asked the appellant

room was the appellant’s mother. The appellant’s mother asked the appellant
as to what was happening. The appellant responded by telling his mother stay
out of that if she did not want to die. The appellant’s mother woke up, took the
two children and left the room. The appellant dragged the complainant out of
that room into the sitting room where he told the complainant to undress. The
complainant refused to undress and the appellant stabbed her once on the

nose with a knife. The complainant sustained an open wound as a result of
the stabbing. The appellant proceeded to stab the complainant on the head
several times with that knife, which resulted in the compl ainant sustaining
open wounds.

[7] That resulted in the complainant undressing by taking off her trouser. The
appellant assisted the complainant by removing h er trouser, and thereafter
the appellant took off the complainant’s panty. The appellant made the
complainant to lie on the floor in the sitting room. After the complainant had
lied down on the floor with her stomach , the appellant took out his penis, lied
on top of the complaint from the back, penetrated the complainant ’s vagina
with his penis, an d started making the up and down movements. The
appellant did not use a condom, and the complainant did not give the
appellant consent have sexual intercourse with her. From there the appellant
dragged the complainant to a certain room which its door was already open.

[8] On entering the room, the appellant pushed the complainant to a bed. After
pushing the complainant to the bed, the appellant lied on the same bed and
fell asleep. The complainant sat on the bed, and could not get out of the room
as sh e was in pains. As she was seated on the bed she heard people
knocking at the door, and immediately two police officers and the appellant’s
mother entered the room. One police officer woke up the appellant whilst the
second police officer assaulted the app ellant. The complainant explained to
the police officers what had transpired and the police officers asked the
complainant whether she wanted to open a rape case against the appellant
and she said yes. The complainant and the appellant w ere taken to the police
vehicle, and they drove to Mokopane police station. At the police station the
police took the complainant’s statement, and thereafter she was taken to the
hospital where she was examined by the doctor. She was stitched on her

hospital where she was examined by the doctor. She was stitched on her
open wounds . The complain ant was cross -examined by the appellant’s
counsel.

[9] The second witness to testify for the State was Bright Maluleke the medical
doctor who had examined the complainant. He confirmed that he had

personally examined the complainant, and thereafter com pleted the J88 form.
The complainant had explained to him what had transpired to her that
evening. She had not bathed, and he had recorded all the injuries that he had
observed on the complainant’s body, which were lacerations on the occipital
parietal area measuring 3 centimetres, and 0.5 centimetres deep. On the
zygomatic area on the face, there were also lacerations measuring 1
centimetre. There was also an incision on the left side of the neck measuring
1 centimetre. There was also an incision on the right middle finger measuring
1 centimetre. There was a discharge noted on the labia majora. On the
posterior fourchette there were also lacerations between 6 O’ Clock and 9 O’
Clock which carry a lot of weight in a case of sexual assault. The hymen was
perforated, it has smooth local change with red bruising. Anything that comes
between 6 and 9 is considered sexual assault until prov en otherwise. The
other witnesses called by the State corroborated the complaint’s version.

[10] The appellant testified under oath, and most of his testimony corroborate the
evidence of the complainant of how she ended up at the appellant’s
homestead. According to the appellant, the complainant had offered herself to
him and they both agreed that whatever they were going to do was a one
night affair as they were both committed to their partners. However, when the
appellant and the complainant arrive d at the appellant’s homestead, the
appellant was drunk and had also became sick. The complainant wanted to
take a bath, and the appellant showed the complainant where to fetch water
to bath. Thereafter the appellant went to sleep, and he did not hear the
complainant when she came to sleep.

[11] The appellant was surprised at 4h30 when he was woken up by the police,
and one of the police officers started assaulting him . When the appellant
asked the police why they were assaulting him, the police told the ap pellant

asked the police why they were assaulting him, the police told the ap pellant
that they were arresting him. He was arrested and taken to the police station.
When the appellant was woken up by the police, he saw the complainant
sleeping on the left side of his bed. The appellant denied ever going to the
kitchen where he took a bread knife that he had used to stab the complainant.
The appellant denied instructing the complainant to undress herself, and also

disputed having had sexual intercourse with the complainant. The appellant
denied dragging the complainant from the sitting room to the bedroom. The
appellant stated that before he and the complainant went to his homestead,
they were both consuming liquor. The appellant was cross -examined by the
State, and thereafter he closed his case.

[12] The appellant was found guilty as charged, and in mitigation of sentence a
presentencing report was prepared for the appellant by the probation officer.
According to the report of the probation officer, the appellant is the first born in
the family of four. His biological father never m arried his mother, and they
separated when the appellant was six years old. The appellant and his
siblings were raised by their maternal grandmother, and they were no
domestic violence in his family. The appellant loved her family, and did not
know his fat her. The appellant dropped out of school in grade 12 as he was
tired of failing. After dropping out of school the appellant never attended any
other formal or informal training. At the time of the incident the appellant was
employed as a taxi driver by Mok opane Taxi Association. On the date of the
incident the appellant was very drunk and do not remember what had
happened as he might have been drugged. According to the probation officer
the appellant does not take responsibility for the offence, however, he is
asking the court to have mercy on him. The appellant is a first offender. At the
time of sentencing the appellant was 30 years of age . The appellant used to
attend church regularly, but was deceived by the devil as he started drinking
alcohol, and stopped going to church.

[13] With regard to the complainant, the probation officer had stated that she did
not have a love r elation with the appellant. The complainant is still having
some scars and that she occasionally experiences pain from the said scars.
On the date of the incident the appellant was not drunk as he bought only 2

On the date of the incident the appellant was not drunk as he bought only 2
beers. It is the complainant’s wish that the appellant be send to prison for a
long time so that she could get healing, and that will also teach the appellant a
lesson not to commit the same offence again, as he was a taxi driver working
with different people.

[14] The appellant’s appeal is direct ed against sentence only. It is trite that
sentencing is the prerogative of the trial court and should not lightly be
interfered with. An appeal in which the interference will be justified is when it
is found that the trial court has misdirected itself in some respect or if the
sentence imposed was so disturbingly disproportionate that no reasonable
court could have imposed it. The test is not whether the trial court was wrong,
but whether it exercised its discretion properly. (See S v Romer3).

[15] The court a quo has found that the appellant in the process of raping the
complainant had inflicted grievous bodily injuries on her, and therefore the
minimum sentence to be imposed is that of life imprisonment. Ordinarily
where the minimum sentences are appl icable, the court is obliged to impose
that sentence, unless the court finds substantial and compelling
circumstances to exists which justify a deviation from the prescribed minimum
sentence, which ordinarily should be life imprisonment. The factors which are
considered in determining whether substantial and compelling circumstances
exists, are all factors traditionally taken into consideration in assessing an
appropriate sentence.

[16] In Director of Public Prosecutions Gauteng Division, Pretoria v Portia Thulisile
Tsotetsi4) Coppin AJA said:

“As held in Malgas confirmed in State v Dodo an explained and explained in
S v Vilakazi, even though substantial and compelling factors need not be
exceptional, they must be truly convincing reasons, or ‘weighty justification’,
for deviating from the prescribed minimum sentence . The minimum sentence
is not to be deviated from lightly and should ordinarily be imposed”.

[17] According t o the evidence of the probation officer, the appellant did not take
responsibility for the offence that he had committed as he maintains that on
the day in question he was too drunk, and did not remember having sexual

the day in question he was too drunk, and did not remember having sexual
intercourse with the complainant. The evidence against him was

3 2011 (2) SACR 153 (SCA) at paras 22 and 23
44 2017 (2) SACR ZASCA 83 (02 June 2017 ZASCA 83 (02 June

overwhelming and he had been duly convicted by the time he consulted with
the probation officer. Despite that the appellant failed to take responsibility for
what he did but blames alco hol. That shows that the appellant is not
remorseful for what he did to the complainant. In S v Matyityi 5 Ponnan JA
said:

“Remorse is a gnawing pain of conscience for the plight of another. Thus
genuine contrition can only come from an appreciation and acknowledgement
of the extent of one’s error. Whether the offender is sincerely remorseful, and
not simply feeling sorry for himself or herself at having been caught, is a
factual question. It is t o the surrounding actions of the accused rather than
what he says in court, that one should rather look. In order for the remorse to
be a valid consideration, the penitence must be sincere and the accused must
take the court fully into his or her confidence”.

[18] An accused can be said to be remorseful if he/she acknowledge the extent of
his/her error and, the damage the he/she might have caused to the
complainant. An accused can also ask for leniency if he or she shows
remorse. By the time the probatio n officer consulted with the appellant, he
was already convicted, remanded in custody and had some time to reflect and
review the whole case on his own and see what kind of damage he might
have caused to the appellant. The appellant was transporting people on daily
basis until late in the evening . As the appellant does not show any remorse,
other passengers who might be in the same position as the complainant might
not be safe from him. It is the duty of the courts to protect those members of
the community that are vulnerable from people like the appellant. It will
therefore be difficult for the court to be lenient to an accused who is not
remorseful. The court must pass a sentence that will reform and rehabilitate
an accused person. Remorse is the beginning of a journey to reformation and
rehabilitation.

rehabilitation.


5 2011 (1) SACR 40 (SCA) at para 47a-c

[19] At the time of sentencing, the appellant was 30 years of age and was therefore
in his youthful age at the time of the commission of the offence. However,
there is no evidence that youthfulness ha d pl ayed a role in the appellant
committing the offence or that he was of immature age. Offences of this
nature are prevalent in the entire country and has become a scourge. The
complainant and the appellant knew each other and that is the reason why it
was easy for the appellant to lure the compla inant. The complainant trusted
that the appellant would safely transport her home safely after luring her not to
alight from the taxi when it was still safe for her walk to her homestead alone.
The appellant was in a position of trust to the complainant, and he had broken
that trust by using his evil tricks.

[20] Having used his evil tric ks to lure the complainant to his homestead, the
appellant went on to inflict grievous bodily injuries on the complainant in order
for hi m to get satisfaction. The appellant had failed to heed to a reprimand
from his own mother to stop what he was doing. That shows that the appellant
does not even respect his own mother. If the appellant does not respect his
own mother, other women will mean nothing to him. By first stabbing the
complainant and proceeding to rape her whilst she was bleeding and in pains,
shows that the appellant is evil and a danger to society. The complainant was
raped in a brutal and degrading way by the appellant.

[21] In S v Chapman6 Mohammed CJ said:

“Rape is a very serious offence, constituting as it does a degrading and brutal
invasion of the privacy, dignity and the person of the victim. The rights to
dignity, to privacy and the intergrity of every person are the basic ethos of the
Constitution and to any defensible civilisation. Women in this country are
entitled to the protection of these rights. They have a legitimate claim to walk

entitled to the protection of these rights. They have a legitimate claim to walk
peacefully on the streets, to enjoy their shopping and entertainment, to go and
come back from work, and to enjoy the peace and tranquillity of their homes

6 1997 (2) SACR 3 (SCA) at 5b-c

without fear, the apprehension an d the insecurity which constantly diminishes
the quality and enjoyment of their lives”.

[22] The complainant boarded the appellant’s taxi trusting that the appellant will
safely transport her home. The appellant has shown that he did not have
respect for the rights which women in this country are entitled to the
protection. Despite the app ellant having blatantly violated these rights, he did
not show any slightest remorse. In my view, the personal circumstances of the
appellant cumulatively taken are not truly convincing reasons or weighty
justification for deviating from the prescribed minimum sentence of life
imprisonment. On the other hand, the aggravating factors far outweigh the
mitigating factors. There is nothing to fault the court a quo in finding that there
were no substantial and compelling circumstances to justify a deviation from
the prescribed minimum sentence of life imprisonment on the count of rape. It
follows that the appellant’s appeal stands to fail.

[23] In the result the following order is made:

23.1 The appellant’s appeal is dismissed



KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE

I AGREE

_____________________________
DIAMOND AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION,
POLOKWANE

APPEARANCES:

Counsel for the appellant : R Scott
Instructed by : Legal Aid SA Polokwane

Counsel for the respondent : Adv SM Ramuthaga
Instructed by : Office of DPP Polokwane

Date heard : 28th March 2025
Electronically circulated on : 29th July 2025