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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]

CASE NO. CC22/2025

In the matter between:

THE STATE

Vs

THOBILIZWI MAQAM Accused
___________________________________________________________________
SENTENCE
___________________________________________________________________
JOLWANA J

[1] Mr Maqam has been convicted of six offences which involved the rape of three
young women, one of whom was 15 years old when the offences in which she is a
victim were committed. The second victim’s rape involved the infliction of grievous
bodily harm. The circumstances and the manner in which these offences were
committed implicated the provisions of section 51(1) of the Criminal Law Amendment
Act 105 of 1997 read with Part 1 of Schedule 2 thereof. He was advised about the
implications of the State’s invocation of section 51(1) at the commencement of the
trial. This is the fact that he faced a possibil ity of life imprisonment, in the event of a
conviction. In respect of the third victim, section 51(2) of the Act was invoked by the
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State and the implications thereof were also explained to him. This entailed that on
conviction, he faced a possibility of a minimum sentence of 15 years imprisonment.

[2] The accused must now be sentenced appropriately for all the offences for which
he has been convicted. The three rape cases are indisputably very serious offences.
This is not made more clearer than the Legis lature’s determination that in exercising
its sentencing discretion, a sentencing court, while entitled to depart from minimum
sentences, it shall only do so only if substantial and compelling circumstances exist
justifying such departure. Section 51(3)(a) provides, in part, as follows:

“If any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser
sentence than the sentence prescribed in those subsections, it shal l enter
those circumstances on the record of the proceedings and must thereupon
impose such lesser sentence….”

[3] In describing the seriousness of these types of offences and the wide berth of
their debilitating impact on the constitutional rights of wome n, as well as the
craftiness with which they were carefully planned before they were committed, I can
do no better than Mahomed CJ in Chapman1 in which he said:

“Rape is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity and the person of the
victim. The rights to dignity, to privacy and the integrity of every person are
basic to the 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 peacefully on the streets, to enjoy their shopping
and their entertainment, to go and come from work, and to enjoy the peace
and tranquillity of their homes without the fear, the apprehension and the
insecurity which constantly diminishes the quality and enjoyment of their lives.

insecurity which constantly diminishes the quality and enjoyment of their lives.
The appellant showed no respect for their rights. He prowled the streets and
shopping malls and in a short period of one week he raped three young

1 S v Chapman 1997(3) SA 34 (SCA).

women, who were u nknown to him. He deceptively pretended to care for
them by giving them lifts and then proceeded to rape them callously and
brutally, after threatening them with a knife. At no stage did he show the
slightest remorse. The courts are under a duty to send a clear message to
other potential rapists and to the community: We are determined to protect the
equality, dignity and freedom of all women and we shall show no mercy to
those who seek to invade those rights.”

[4] In this case, it was as if the accused knew that all his victims were in a vulnerable
position at the time he attacked each one of them. For example, S[...] lived with her
great grandmother who was 83 years old at the time. That explains why, although
she was awake and saw her great granddaughter being dragged out of the house by
an armed stranger in the darkness of that night or early morning, she could not do
anything other than making calls to ask for help and perhaps praying, which was her
Christian praxis at about midnight daily. She could not assist S[...] as she tried to
fight her armed assailant with admirable courage. Similarly, with S[...]2, on the date
of the attack, her room mate and friend, Zimasa had gone home. Therefore, she was
all by herself on the night in questio n. The same applies to A[...], on the day of the
attack, she was walking alone in the area of the mealie fields. There was no one else
walking there at the time. She was on her way to visit her then boyfriend who is now
her husband at about 09:00 in the morning. She was dragged down a slope under a
threat of a knife. In all these cases, not only was the accused armed with a knife
and/or sword, but he also covered his face with a balaclava. As a result, his victims
could not identify him or describe him to the police. This explains why it took about
10 years to solve these horrendous crimes. As Mr Mkentane, counsel for the State
proposed, Mr Maqam must have carefully planned each of these attacks which is

proposed, Mr Maqam must have carefully planned each of these attacks which is
why he successfully executed them without being identified.

[5] This brings me to the evidence in of the victims with which I start for convenience.
S[...] testified that after the incident, she was always afraid especially around 03:00
am fearing that someone would wake her up. Because she lived with h er then 83
year old frail great grandmother, she had to be strong for her by hiding the emotional
turmoil she was going through in order to protect her. Therefore, she suffered in
silence as the only person she lived with and could talk to was vulnerable a nd

needed protection because of her advanced age. She testified that at the time she
was raped, she was already pregnant. Her boyfriend denied that he was the father of
the child saying that he could have fallen pregnant during her rape ordeal. He only
acknowledged being the father of her child after the child was born and he counted
the number of months to realize and accept that she was already pregnant with his
child when she was raped.

[6] She testified that hers and her great grandmother’s lives change d drastically.
When she went to school, her great grandmother would lock the door during the day
as she would be left alone the whole day until she came back from school. Before
the incident, they switched off the lights at night to avoid attracting mosqu itos. They
could not do that anymore. They could no longer sleep with lights switched off at
night because of fear. After her child was born, she found herself in an emotional
roller-coaster and turmoil. She resorted to heavy drinking to numb her emotional
pain. At the locality, people from her own community would ask her why she did not
scream, and she had to explain herself over and over again because they did not
understand rape. S[...] testified that there could be many other young girls who were
raped by the accused, who might not have even seen any point in laying criminal
charges with the police. This is because they could not describe their attacker due to
the fact that the accused always covered his face with a balaclava and therefore,
they did not know against whom to lay rape charges.

[7] S[...]2 testified that when she was raped, she was doing grade 12. Although she
continued with her studies, things changed. It became difficult for her to go to school
because people would whisper about her a nd the fact that she was raped. She
started not going to school regularly and ended up failing grade 12. The following
year, she decided not to go to school at all. When she eventually returned to school,

year, she decided not to go to school at all. When she eventually returned to school,
her former school would not allow her to repeat gr ade 12. She ended up going to a
new school in which she was required to start from grade 10 which she had to do as
she needed to put together the broken pieces of her life. Therefore, she lost 5 years
of her life in the process. After completing grade 12, she was admitted at the
University of Fort Hare for her tertiary education where she graduated in 2024. She
got a job as a School Governing Body Educator at Elliot. However, she had to leave
that job when she realised that she might not be safe as she was always anxious

about her safety after her rape ordeal. She has just been employed as a tutor in
Durban and would have already started in her new job, which she had to delay when
she was told that she needed to come to court and testify in this case.

[8] After the incident, her sleeping patterns were detrimentally affected. She started
sleeping at 15:00 and waking up at 20:00 fearing that her assailant or another
person would come at night and rape her again. She would then stay awake from
20:00 until 05:00 am the following morning. She testified that as a young woman,
she had taken a conscious decision to preserve her virginity until she got married.
However, she lost her virginity to rape which is not how she had imagined she would
lose her virginity.

[9] The court was informed that A[...] had refused to come and testify in aggravation
of sentence. Apparently, she explained to the prosecutor that she would not like to
see the accused again. I do recall that during her testimony during the trial, she
suffered a number of what seemed like panic attacks as a result of which the court
had to take a few adjournments for her to regain her composure. I also observed that
when she testified, for the most part, she would have her back towards the accused
thus avoidi ng looking at him. Part of her evidence during trial was that when the
investigating officer told her that it was the accused who was arrested for her rape,
she was shocked as she recalled him from their locality in Sipolweni as his name
was associated wit h criminal activities like stock theft. After her rape incident she
would sometimes be walking with her husband in Kokstad and would come across
the accused. He would avoid her. All this time, she did not know that he was the
actual person who put her thro ugh the entire rape ordeal when he evidently knew
her.

[10] In mitigation of sentence, the accused testified that he was born at Sipolweni
Locality in Mount Ayliff on 12 August 1982. His father is still alive, but his mother

Locality in Mount Ayliff on 12 August 1982. His father is still alive, but his mother
passed on in 1999. He went to school up to grade 6 or standard 4. He had to drop
out of school because when his father went to the labour centres, he never came
back leaving his mother to raise five children alone. After dropping out of school, he
started getting odd jobs in which he e arned between R500.00 and R600.00 a month.
He was married at some stage, but his wife left him in 2015. They had no children

when she left him. He now has two children, a boy who was born in June 2023 and a
girl who was born on 16 January 2025. Their mothe r is unemployed. These children
have no birth certificates and therefore do not get the child support grant as their
mother is a foreign national from Lesotho. At the time of his arrest, he was employed
by a certain Mr Mbotho doing grass cutting along the road where he earned between
R1500.00 and R2000.00 a month. He used this money in contributing to the
upbringing of these children. The mother of these children now looks after them and
provides for them through odd jobs like doing laundry.

[11] He testified that he would like the court to sentence him leniently so that he can
go back to his children and assist in raising them while he still has the energy to do
so. He was asked by his counsel pertinently that, now that he has been convicted
and two of his victims were in court, if would like to say anything to them. Instead of
responding to that pertinent question, he repeated his request for a lenient sentence
so that he can go to his children. On further prodding by his legal representative, he
then apologised saying that he was doing so only because he has been convicted.
He still maintained his innocence saying that he never raped S[...] and S[...]2. With
regard to A[...], he testified that his DNA which was found in the vaginal swab taken
from he r on 31 August 2014 which linked him to her rape was from a consensual
sexual intercourse he had with her on 16 June 2014. He therefore denied raping any
of the complainants.

[12] In light of the accused’s personal circumstances, the question is whether th ey,
considered individually or cumulatively, are such as would justify a departure from
the prescribed minimum sentences. In Vilakazi2 the applicable sentencing
considerations when a sentencing court embarks on the very difficult process of
deciding on an appropriate sentence where prescribed minimum sentences are

deciding on an appropriate sentence where prescribed minimum sentences are
applicable, were explained as follows:

“It is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent upon a court in every case, before it
imposes a prescribed sentence, to assess upon a consideration of all the

2 S v Vilakazi 2009(1) SACR 552 (SCA) at 560 g-h to 561 a-b.

circumstances of the particular case, whether the prescribed sentence is
indeed proportionate to the particular offence. The Constitutional Court made
it clear that what is meant by the “offence” in that context:

‘consists of all factors relevant to the nature and seriousness of the
criminal act itself, as well as all relevant personal and other
circumstances relating to the offender which could have a bearing on
the seriousness of the offence and the culpability of the offender.’

If a court is indeed satisfied that a lesser sentence is called for in a particular
case, thus justifying a departure from the prescribed sentence then it hardly
needs saying that the court is bound to impose that les ser sentence. That
was also made clear in Malgas, which said that the relevant provision in the
Act:

‘vests the sentencing court with the power, indeed the obligation, to
consider whether the particular circumstances of the case require a
different senten ce to be imposed. And a different sentence must be
imposed if the court is satisfied that substantial and compelling
circumstances exists which ‘justify’ … it.’”

[13] The accused watched his three victims breaking down as they narrated in quite
some detail during the trial, what he did to them more than 10 years ago as if it had
happened recently. He was not moved as he sat there stone faced, showing no
emotion at all. At the conclusion of the trial, was convicted and even after conviction,
during his evide nce in mitigation of sentence, he persisted with the same attitude
and stone facedness, further repeating his illogical stance that while his DNA was
found in the swabs taken from the vaginal swabs of S[...] and S[...]2, on 13 March
2013 and 20 August 2014 respectively, he did not rape them. In respect of A[...], he
persisted with his foolhardy notion that he had a consensual sexual encounter with
her on 16 June 2014. That was his explanation for his DNA being found on a vaginal

her on 16 June 2014. That was his explanation for his DNA being found on a vaginal
swab that was taken on 31 August 2014 from A[...]. The accused seems to be still in
denial that he has been caught for crimes he was convinced he had gotten away
with and convicted more than 10 years later. In the process, there was not even a

whiff of remorse, not at all. I have captured most, if not all his evidence as it relates
to his personal circumstances. I have found nothing substantial and compelling in all
of them. In fact, they are the kind of flimsy reasons referred to in Malgas. Therefore,
the prescribed minimum sentences are applicable in all the three rape offences.

[14] As I conclude, it would be remiss of this Court not to say something about the
how victims of sexual violence sometimes received little to no assistance to cope
with the extreme violence that wa s perpetrated against them. In this case, the little
counselling that was done was just discontinued without ensuring that the desired
outcomes, whatever they may be, were achieved. S[...]2 testified that after three
counselling sessions, she ran out of m oney to travel from her home to Mount Ayliff
offices of the Department of Social Development. That was the end of her
counselling support. No follow up was done on her, no attempts were made to visit
her at her home at workable intervals when she did not s how up for her counselling
sessions. While this issue was not raised pertinently in respect of S[...] and A[...], I
have no reason to believe that they were treated any better by the same office. As if
that was not bad enough, they had to struggle to get witness fees when they
attended trial. It was due to the assistance of warrant officer Dlomo, the investigating
officer, who, with admirable dedication and sensitivity to them, took the trouble to
fetch them from their rural homes and brought them to court and took them back
home after court appearances. S[...] now works in fort Beaufort, more than 500
kilometres from Ntabankulu. She had to use her own money to travel for such a long
distance, which must be quite substantial. This lackadaisical att itude by the relevant
officials amounts to avoidable secondary traumatisation by the relevant government
departments and officials, and insensitivity to victims of crime including those who

departments and officials, and insensitivity to victims of crime including those who
are victims of gender-based violence.

[15] Mrs Nozibusiso Sukani, a social worker based at the offices of the Department
of Social Development in Ntabankulu was called to court at short notice for purposes
of establishing if her office would not be of assistance to the victims in this case.
Thankfully, she was able to c ome, and she made clear undertakings that she will
contact her colleagues in Fort Beaufort and in Durban to ensure that the victims of
sexual violence in this matter are assisted with counselling sessions until they are
able to live with their ordeal witho ut feeling lonely, fearful or tormented. She

undertook to ensure that her colleagues give her written reports on the counselling
sessions they give to these victims. As for A[...], because she is in Kokstad, which is
not very far from her office, she und ertook to personally handle her case. This is the
kind of Ubuntu that both warrant officer Dlomo and Mrs Sukani have shown which
must be applauded. This display of compassion and empathy is appreciated. It is to
be hoped that they shall deal with all cases that they became aware of with the same
compassion and empathy so as to avoid victims of sexual violence feeling that they
are made to suffer secondary victimisation even by the offices that have a
responsibility to look after such victims. The victims o f sexual violence in this case
have been left to fight for survival for far too long, and they have, alone, done very
well. The courage of the victims in this matter who were literally children when they
were brutally violated and were traumatised in the m ost abhorrent manner is
admirable. But they have fought a lonely fight, they have fought courageously
nonetheless and have all largely succeeded on their own. I have directed that this
judgment be sent to the court manager of Ntabankulu and the head of off ice at the
Department of Social Development in Mount Ayliff and the head of office at the
Department of Social Development in Ntabankulu for their attention and corrective
actions.

[16] The accused, having failed to satisfy the court as to the existence of substantial
and compelling circumstances, is sentenced as follows:

1. Count 1, housebreaking with intent to commit an offence at the home of S[...],
you are sentenced to three years imprisonment.
2. Count 2, housebreaking with intent to commit an offen ce at the place of
residence of S[...]2, you are sentenced to three years imprisonment.
3. Count 3, the kidnapping of S[...], you are sentenced to five years imprisonment.
4. The sentences in counts 1 and 2 are ordered to run concurrently with the

4. The sentences in counts 1 and 2 are ordered to run concurrently with the
sentence in respect of count 3.
5. Count 4, the rape of S[...] you are sentenced to life imprisonment.
6. Count 5, the rape of S[...]2, you are sentenced to life imprisonment.
7. Count 6, the rape of A[...] you are sentenced to 15 years imprisonment.
8. In terms of section 50(2) of the Criminal Law (Sexual offences and Related
Matters) Amendment Act 32 of 2007, the particulars of Thobilizwi Maqam, as a

convicted sexual offender, must be entered in the National Register for Sex
Offenders.
9. In terms of section 120(4) of the Children’s Act 38 of 2005 and section 41 of the
Criminal Law (Sexual offences and Related Matters) Amendment Act 32 of
2007, Thobilizwi Maqam is declared to be unsuitable to work with children and
it is directed that his particulars be entered in part B of the National Child
Protection Register.


___________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT


Appearances

Counsel for the State : C Mkentane
Instructed by : NDPP
Mthatha

Counsel for the accused : S.T. Kekana
Instructed by : Legal Aid South Africa
Mthatha

Date heard : 07 August 2025
Date Delivered : 08 August 2025