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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CA&R 110/2024
In the matter between:
BUYISILE DINGALIBALA Appellant
and
THE STATE Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The appellant was convicted of rape by the Regional Magistrate, Tsolo, and
sentenced on 20 July 2018 t o life imprisonment as the rape victim was younger than 16
years of age at the time of the said rape. In terms of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 (CLAA), the offence of rape, where the victim was less
than 16 years of age, inter alia, is punishable by a minimum of life imprisonment.
[2] This is an appeal, for which the appellant did not require leave of the trial court by
virtue of the proviso to section 309(1) (a) of the Criminal Procedure Act 51 of 1977 (the
CPA),1 against his conviction and sentence. In the trial court, the appellant was legally
represented, and in this Court, Mr Babane represented him. The respondent (the
prosecution) was represented by Mr Mfihlo. The appeal was noted out of time.
Condonation was sought for its late filing, and it was granted, unopposed by the
prosecution.
[3] At the trial of the case, the appellant pleaded not guilty to the charge against him.
The prosecution had chiefly alleged that between February and March 2016, he raped
Ms Z[...] N[...] (the complainant) per vaginum. It later emerged during the proceedings,
and also became common cause between the prosecution and the appellant, that the
complainant arrived at the appellant’s home on 27 February 2016 in the circumstances I
will deal with later on in this judgment, and remained there until 03 March of the same
year.
[4] When the rape took place, the complainant was 15 years of age. She was born
on 24 September 2000. She was 17 years of age when she testified at the trial a gainst
the appellant and was doing Grade 9. She gave her evidence under oath as envisaged
in section 162 of the CPA.
The grounds of appeal
[5] The appeal against conviction is based on the narrow ground of an alleged
failure of the learned Regional Magis trate to admonish the complainant. In this regard,
the appellant contends that the learned Regional Magistrate erred in causing the
1 Section 309(1) ( a) provides: ‘Subject to section 84 of the Child Justice Act, 2008 (Act No. 75 of 2008),
any person convicted of any offence by any lower court (including a person discharged after conviction)
may, subject to leave to appeal being granted in terms of section 309B or 309C, appeal against such
conviction and against any resultant sentence or order to the High Court having jurisdiction: Provided that
if that person was sentenced to imprisonment for life by a regional court under section 51 (1) of the
Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), he or she may note such an appeal without
having to apply for leave in terms of section 309B. . .’
complainant to take the oath as envisaged in section 162 of the CPA, instead of
admonishing her to speak the truth in terms of section 164 of the CPA as she was a
child under the age of 18 years at the time she gave evidence. The appellant further
contends that the learned Regional Magistrate also erred in not holding an enquiry to
determine the competence of the complainant t o give evidence. For this reason, so the
appellant contends, her evidence is inadmissible.
[6] In appealing against his sentence, the appellant contends that the learned
Regional Magistrate erred in finding that there were no substantial and compelling
circumstances which justified a deviation from the prescribed minimum sentence of life
imprisonment. Below I set out in brief terms the facts on which the trial court convicted
the appellant.
The complainant’s evidence
[7] The complainant testified that in what appeared to be an arranged marriage, her
now deceased aunt, Ms N[...] N[...], in whose care she was, gave her away to the
appellant so that she would be his wife. On the day this occurred, her aunt asked her to
accompany her to a relative’s homestead in Sitana Locality under Magutywa
Administrative Area. It was in the afternoon, and that relative’s home turned out to be
the home of the appellant. On arrival at the appellant’s home, they found the appellant’s
elderly mother and other people. The appellant was called at a later stage, and upon his
arrival, she was instructed by the appellant’s the elders present thereat to go with him to
his room. They remained in the appellant’s room for a while. While there, th e appellant
told her that he wanted to make her his wife, a proposal she rejected. When she
rejected the appellant’s proposal to be his wife, the appellant left the room leaving her
behind. He came back and let her out of the room. Once out of the room her aunt told
her that she was going to leave her at that homestead. This must have been so that the
her that she was going to leave her at that homestead. This must have been so that the
complainant may eventually submit to being married to the appellant.
[8] Her aunt indeed left her at the appellant’s homestead. When the night came, the
appellant’s mother instructed her to go with the appellant to his room. This came to
pass. In the appellant’s room she and the appellant slept in the same bed, and she slept
in her clothes. The appellant attempted to undress her with a view to having sexual
intercourse with her. She resisted his attempt, and he desisted, whereafter they slept
until the morning.
[9] In the morning, the appellant went to work and locked her inside the room. His
mother would bring her food. She remained in that locked room until the appellant
returned from work. At night, she slept in the same room with the appellant. Once again,
the appellant attempted to have sexual intercourse with her, and she refused. On this
occasion, the appellant forced her into submission by assaulting he r more than once
with open hands on her face and her back. The appellant forcefully penetrated her
vaginally with his penis and had sexual intercourse with her without a condom while she
lay on her back.
[10] After the appellant went to work the next day, she was given R50.00 (fifty rand)
by the appellant’s mother who indicated that it was for her to spend as she wished. She
escaped from the appellant’s home and used the money to get a taxi to Magutywa
where she lived with her aunt. When she escaped, the a ppellant and his mother were
not at home.
[11] On her arrival at her aunt’s home, she took her back to the appellant’s home
where she admonished her to remain. When the night came on that day, she and the
appellant slept together in his room, but the appe llant did not have sexual intercourse
with her. In the morning, she was instructed by the appellant’s mother to go and buy
bridal attire ( amajelimane also known as ‘German print’), and she complied. She
subsequently wore the bridal attire and was instructe d to perform the duties of a new
bride which included making the local elderly ladies tea.
[12] She spent another night with the appellant, but no sexual intercourse took place
on this night. She was removed from the appellant’s home by her uncle, Mr M[...] N[...]
who went to report the matter to the police. At the police station she was told that
because she had washed herself, she would not be taken for medical examination.
The evidence of Mr M[...] N[...]
[13] Among other things, the evidence of Mr M[...] N[...] revealed that the complainant
was orphaned and had been placed in the foster care of his sister, Ms N[...] N[...], under
the supervision of social workers. When it came to his attention that she had missed
school, he investigated her whereabouts and learned that his sister had married her off
to the appellant. That this had happened, was confirmed to him in a letter he received
from the appellant’s family in which they informed him that his family should not look for
the complainant as she was at the appellant’s home. Mr M[...] N[...] was the last witness
that the prosecution called.
[14] At the close of the case for the prosecution and after his application to be
discharged in terms of section 174 of the CPA was refused, the appellant testified in his
defence.
The appellant’s evidence
[15] According to appellant, his mother phoned the complainant’s aunt asking her to
find him a wife. His mother and the complainant’s aunt arranged that the complainant
would be married off to him, hence she was eventually brought to his home by her aunt.
He did not know her age at the time but ‘saw that she was a child’. The complainant
accepted his proposal for marriage but requested to continue with her studies. He
undertook to permit her to d o so, and she was happy with the undertaking. He and the
complainant went to announce to the elders and the complainant’s aunt, that they had
reached an agreement to marry. When the complainant’s aunt left his home, the
complainant stayed behind of her own volition.
[16] The appellant denied that he as much as attempted to have sexual intercourse
with the complainant, let alone having sexual intercourse with her without her consent. It
was his version, instead, that the complainant even offered to do his w ashing while he
was repairing the kraal the next day. This, said the appellant, she did as his wife. He
spent 5 nights with her, and they shared a bed before her uncle came to fetch her. On
all the 5 nights the complainant did not go to bed in her full clo thes but in a T -shirt and
shorts. The appellant denied that before her uncle’s arrival the complainant escaped
from his home. According to him, when the plaintiff learned that his uncle was looking
for her, she ran to her aunt’s home as she feared that her uncle would assault her.
The findings of the trial court
[17] The trial court accepted the version of the complainant as being true. This, after
assessing it against the applicable cautionary rule since she was a single witness and a
child under 18 year s of age. In convicting the appellant on the evidence of the
complainant as a single witness, the learned Regional Magistrate found that her
evidence was clear, coherent and satisfactory in all material respects.
Counsel’s submissions in this Court
[18] The principal submission that Mr Babane made was that in the light of the fact
that the complainant was 17 years of age when she gave her testimony, the judicial
officer ought to have held an inquiry to determine her competence to testify and whether
she understood the import of an oath. According to Mr Babane, the complainant was a
candidate to be admonished under the provisions of section 164 of the CPA. He also
took issue with the fact that the actual administration of the oath to the complainant
does not appear from the record.
[19] Among the case law on which Mr Babane relied in making his argument was S v
Nedzemba.2 In that case, the complainant in a rape charge was 14 years of age when
she gave evidence. On appeal, the Court lamented the trial court’ s failure to establish
whether the child witness understood the nature and import of the oath and whether she
knew what it meant to speak the truth.
[20] As regards the appeal against sentence, Mr Babane made no pertinent
submissions, and indeed none we re made in the heads of argument that were filed on
behalf of the appellant. He indicated that he would leave that aspect for the court to
make its determination.
[21] On behalf of the prosecution, Mr Mfihlo chiefly submitted that nowhere on the
record is an indication that the complainant did not understand the nature and
significance of the oath. In any event, so the submission continued, no basis had been
established for the admonition of the complainant a s no finding was made that she did
not understand the import of the oath. In making this submission Mr Mfihlo relied on S v
B.3
[22] Regarding the appeal against sentence, Mr Mfihlo submitted that no substantial
and compelling circumstances existed which warranted a deviation from the prescribed
sentence of life imprisonment.
The legal principles
[23] The principles regarding the admission of witness to give evidence were set out
in S v Matshivha,4 where it was said:
2 Nedzamba v S (911/2012) [2013] ZASCA 69; 2013 (2) SACR 333 (SCA) (27 May 2013). Reliance was
also placed on S v Seymour 1998 (1) SACR 66 (N).
3 2003 (1) SA 552 (SCA).
4 2014 (1) SACR (SCA) 29 at paras 10 and 11.
‘The reading of s162(1) makes it clear that, with the exception of certain
categories of witnesses falling under either s163 or s164, it is peremptory for all
witnesses in criminal trials to be examined under oath. And the testimony of a
witness who has not been placed under oath properly , has not made a proper
affirmation or has not been properly admonished to speak the truth as provided
for in the Act, lacks the status and character of evidence and is inadmissible. . .’
[24] In the light of the fact that an irregularity is relied on in c hallenging the appellant’s
conviction, the test, if an irregularity is found to have occurred, is whether the
irregularity, is sufficiently serious as to undermine basic notions of trial fairness and
justice.5
[25] As regards sentencing, it bears re -stating that it is a matter for the discretion of
the trial court, which discretion will only be interfered with on appeal if it has not been
exercised properly and judiciously, the test being whether the sentence meted out is
vitiated by an irregularity, or a misdirection, or is disturbingly inappropriate.6
[26] CLAA prescribes discretionary minimum sentence to be imposed on persons
convicted of various categories of serious offences including rape. These prescribed
sentences may be departed from only where there are in existence in a given case,
substantial and compelling circumstances justifying the deviation. This is in terms of
section 51(3) of the same Act.
Discussion
[27] Before I deal with the procedural irregularity implicating the applicability of
sections 162 and 164 of the CPA as the ground of the appeal against the appellant’s
5 Van der Walt v S [2020] ZACC 19; 2020 (2) SACR 371 (CC ); 2020 (11) BCLR 1337 (CC), para15; see
also Tuta v The State (CCT 308/20) [2022] ZACC 19; 2023 (2) BCLR 179 (CC); 2024 (1) SACR 242 (CC)
(31 May 2022), para 30.
6 S v Rabie 1974 (4) SA 855 (A) at 857 E; see also S v Malgas 2001 (1) SACR 469 (SCA) at para 12.
conviction, it is convenient to first dispose of the appellant’s contention that the record
does not show the actual administration of the oath to the complainant.
[28] It seems to me that this contention is self-defeating in that the main ground relied
on for this appeal is premised on the acceptance that an oath was indeed administered
instead of admonishing the complainant. The appellant cannot have it both ways.
However, for what this contention is worth, it suffices to say that ex facie the record, the
complainant gave her evidence under oath after her full names and age were
ascertained. This is encapsulated in the following excerpt of the record:
“Z[...] N[...] DECLARES UNDER OATH”
[29] This is apart from the fact that we were not referred to any authority in terms of
which a record of proceedings must verbatim contain the words spoken during the
administration of an oath to a witness. Rule 66(1) of the Rules of the Magistrates’ Court
which governs records of criminal cases provides as follows:
‘(1) The plea and explanation or statement, if any, of the accused, the
evidence orally given, any exception or objection taken in the course of
the proceedings, the ruling s and judgment of the court and any other
portion of criminal proceedings, may be noted in shorthand (also in this
rule referred to as “shorthand notes”) either verbatim or in narrative form 7
or recorded by mechanical means.’
[30] I may add that it is hig hly doubtful that those responsible for the transcription of
mechanical or digital records would have transcribed the taking of an oath (in narrative
form as it appears from the record) if no oath was taken during the proceedings whose
record was being transcribed.
7 Emphasis intended.
[31] For these reasons, I am unable to agree with the suggestion made by Mr Babane
that there ought to have been a verbatim recordal of the administration of the oath to the
complainant. I now turn to deal with the principal ground of appeal aga inst the
appellant’s conviction.
[32] Granted, the default position in terms of the section 162 of the CPA is that
witnesses in criminal proceedings shall give evidence under oath. 8 In the case of a
witness who may take an oath or who may be required to do so but objects thereto on
any of the grounds stated in section 163, the judge or judicial officer may direct him/her
to make an affirmation in the prescribed manner. Such affirmation shall have the same
legal force and effect as if the person making it had taken the oath.9
[33] Where a person to be examined in criminal proceedings is found not to
understand the nature and import of the oath or the affirmation, he/she may be
admonished by the presiding judge or judicial officer to speak the truth. This is in terms
of section 164 of the CPA.
[34] As we understand the submissions that Mr Babane made on behalf of the
appellant, he suggests that the trial court, by virtue of the witness’s age of minority,
should conduct an inquiry as a matter of mandatory p rocedure, into the competence of
that witness. Mr Babane’s point of departure seems to be that the young age of the
8 S v Matshivha footnote 4, supra at paras 10 and 11; Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development & others 2009 (2) SACR 130 (CC) para 166.
9 Section 163 provides:
(1) Any person who is or may be required to take the oath and—
b) who objects to taking the oath in the prescribed form;
(c) who does not consider the oath in the prescribed form to be binding on his conscience; or
(d) who informs the presiding judge or, as the case may be, the presiding judicial officer, that he has no
religious belief or that the taking of the oath is contrary to his religious belief, shall make an affirmation in
the following words in lieu of the oath and at the direction of the presiding judi cial officer or, in the case of
a superior court, the presiding judge or the registrar of the court:—
“I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the
truth”.
(2) Such affirmation shall have the same legal force and effect as if the person making it had taken the
oath.
(3) The validity of an oath duly taken by a witness shall not be affected if such witness does not on any of
the grounds referred to in subsection (1) decline to take the oath.
witness (below the age of majority) will perforce lead to that witness’s admonition by the
judicial officer. In the discussion that follows, I deal, more fully, with this issue.
[35] It must, as a starting point, be stated that a witness is only competent to testify if
he or she is able to appreciate the difference between truth and lies. Every person not
expressly excluded by the CPA from giv ing evidence is presumed to be competent to
give evidence.10 The corollary is that even for a witness to be admonished to speak the
truth where she is found not to understand the import of an oath or affirmation, he must
be capable of differentiating between the truth and lies.
[36] As the Court held in Rammbuda v S11, it is clear from the reading of s 164(1) that
for it to be triggered there must be a finding that the witness does not understand the
nature and import of the oath. The finding must be preceded by some form of enquiry by
the judicial officer, to establish whether the witness understands the nature and import
of the oath. If the judicial officer should find after such an enquiry that the witness does
not possess the required capacity to understand the nature and import of the oath, he or
she should establish whether the witness can distinguish between truth and lies, and, if
the enquiry yields a positive outcome, admonish the witness to speak the truth.12
[37] In the instant case, the reco rd indicates that the complainant, who was 17 years
of age and a Grade 9 learner, was caused to take the prescribed oath. Learned author
Kruger states that there is no particular age at which a child is deemed to understand
the meaning of the oath. Such a determination depends on the understanding shown by
the child in answering questions by the judicial officer, who has to decide whether it is a
case for a warning or an oath.13
10 Section 192 of the CPA provides that every person not expressly excluded by this Act from giving
evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence
in criminal proceedings.’
11 Rammbuda v The St ate (156/14) [2014] ZASCA 146 (26 September 2014) quoting with approval S v
Matshivha, supra, footnote 4; Macinezela v The State (550/2017) [2018] ZASCA 32 (26 March 2018); S v
Malinga 2002 (1) SACR 615 (N).
12 Ibid para 7.
13 A Kruger - Hiemstra’s Criminal Procedure, (Lexis Nexis) Issue 11, 2018 page 22-48(1).
[38] In S v B 14 which concerned the admissibility of the evidence of two young
witnesses, the complainant and a witness both 13 years of age, had given evidence in
the Regional Court. They were not asked to take an oath and were merely admonished
to tell the truth. The court a quo set aside the resulting conviction, inter alia, on the basis
that the complainant’s evidence was inadmissible. The Supreme Court of Appeal held
as follows:
‘Dit is duidelik dat art 164 `n bevinding vereis dat `n persoon weens onkunde
voortspruitende uit jeugdigheid, gebrekkige opvoeding of ander oorsaak ni e die
aard en betekenis van die eed of die bevestiging begryp nie. Soos in die geval
van `n aantal vroeëre uitsprake, het die hof a quo beslis dat die feit dat `n
bevinding vereis word, noodwendig inhou dat `n ondersoek die bevinding moet
voorafgaan (sien S v Mashava (supra op 228g -h); S v Vumazonke 2000 (1)
SASV 619 (K) op 622f -g). Na my mening is dit `n te enge uitleg van die artikel.
Die artikel vereis nie uitdruklik dat so `n ondersoek gehou word nie en `n
ondersoek is nie in alle omstandighede nodig te n einde so `n bevinding te maak
nie. Dit kan byvoorbeeld gebeur dat, wanneer gepoog word om die eed op te lê
of om `n bevestiging te verkry, dit aan die lig kom dat die betrokke persoon nie
die aard en betekenis van die eed of die bevestiging verstaan nie. Die blote
jeugdigheid van `n kind kan so `n bevinding regverdig. Na my mening word niks
meer vereis as dat die voorsittende regterlike amptenaar `n oordeel moet vel dat
`n getuie weens onkunde voortspruitende uit jeugdigheid, gebrekkige opvoeding
of ander oorsaak nie die aard of betekenis van die eed of bevestiging begryp nie.
Hoewel verkieslik word geen formele genotuleerde bevinding vereis nie (sien S v
Stefaans 1999 (1) SASV 182 (K) op 185i).’
[Translation: It is clear that section 164 requires a findin g that a person, due to
ignorance arising from youthfulness, inadequate upbringing, or some other
ignorance arising from youthfulness, inadequate upbringing, or some other
cause, does not understand the nature and significance of the oath or affirmation.
As in the case of a number of earlier judgments, the court a quo held that the fact
that a finding is required necessarily implies that an inquiry must precede the
14 S v B footnote 3 supra, para 15.
finding (see S v Mashava (supra at 228g -h); S v Vumazonke 2000 (1) SACR 619
(C) at 622f -g). In my opinion, this is too narrow an interpretation of the section.
The sec tion does not expressly require that such an inquiry be held, and an
inquiry is not necessary in all circumstances in order to make such a finding. It
may, for example, become apparent when an attempt is made to administer the
oath or obtain an affirmation that the person concerned does not understand the
nature and significance of the oath or affirmation. The mere youthfulness of a
child may justify such a finding. In my opinion, nothing more is required than that
the presiding judicial officer must make a judgment that a witness, due to
ignorance arising from youthfulness, inadequate upbringing, or some other
cause, does not understand the nature or significance of the oath or affirmation.
Although preferable, no formal recorded finding is required (see S v Stefaans
1999 (1) SASV 182 (K) op 185i)].
[39] When regard is had to these authorities, Nedzemba is no authority for the
proposition that by reason only of the fact the witness was below the age of 18 years,
the court was required to determine whether t he witness understood the purport of an
oath.
[40] It is to be noted that in its amended form, section 164(1) does not state any
specific reasons for a person’s failure to understand the import of an oath. Learned
author Kruger note that the words “from i gnorance arising from youth, defective
education or other cause” at the beginning of the subsection were deleted by the
amendment to section 164(1) section 68 of Act 32 of 2007 resulting in the wide ambit of
section 164 in terms whereof court can now make the finding that a witness does not
understand the oath on any basis.15
[41] In the present case, the learned Regional Magistrate did not raise the issue of
the complainant’s age in relation to her eligibility to take the oath, nor did he doubt her
the complainant’s age in relation to her eligibility to take the oath, nor did he doubt her
competence as a witness – he was clearly of the view that the witness was competent
15 Hiemstra’s Criminal Procedure, footnote 12 supra, page 22-48.
to testify, and she did so under oath. Indeed, nothing from the record indicates that
when the oath was administered to the complainant the learned Regional Magistrate
was not sat isfied that she was able to understand the nature and significance of an
oath.
[42] Apart from the aforegoing, the complainant’s chronology of events after her
arrival at the appellant’s home is largely confirmed by the appellant, barring his denial of
the fact that he as much as attempted to have sexual intercourse with her on the
second night of her presence at his home as she testified. It must be remembered that
the learned Regional Magistrate, unlike this Court, was steeped in the observation of
the c omplaint as she gave her evidence under oath. His findings in this regard are
encapsulated in the following passage:
“I had an opportunity to observe the complainant while she testified in court. I
have already indicated that she made a good impression to this court . . . she
gave her evidence in a clear and logical manner and never contradicted herself. .
.”
[43] At the heart of administering the oath (and admonition to speak the truth), is the
need to ensure that the evidence given is reliable. 16 Reliability of the child’s evidence
depends on how intelligent, observant and honest the child is. 17 If regard is had to the
general tenor of the complainant’s testimony when she gave her evidence in chief and
under cross-examination, there is no doubt that she ap preciated the duty of speaking
the truth, had the sufficient intelligence and maturity, and could communicate effectively.
The record before us demonstrates this amply. An example of this instance is when she
was asked if on the first, third and subsequent occasions when she slept in the
appellant’s room, he made any attempt to have sexual intercourse with her without her
consent. She testified that there was never any such attempt. To my mind, this was
indicative of a witness who understood what it meant to speak the truth.
indicative of a witness who understood what it meant to speak the truth.
16 S v Raghubar 2013 (1) SACR 398 (SCA) paras 4–5.
17 R v Manda 1951 (3) SA 158 (A) at 163.
[44] I make the finding that the learned Regional Magistrate committed no irregularity
in causing the complainant to take the oath. The appellant’s contention that the
complainant’s evidence was wrongly admitted has no merit, it must a ccordingly fall by
the wayside. I proceed to determine whether there are any grounds on which this Court
must interfere with the sentence that the trial court imposed on the appellant.
The appeal against sentence
[45] Only the appellant’s personal circumst ances were placed before the trial court.
They are that he was a ‘young gentleman’ (42 years of age) who lived with his mother,
his wife and boy child. He had two other children who lived with their respective
mothers. He was unemployed and lived on odd jo bs. He completed a learnership
programme which was intended to enhance his employability. He had a previous
conviction dated 2002 for shoplifting.
[46] No submissions were made in the trial court regarding whether there were
substantial and compelling circumstances which justified a deviation from the prescribed
minimum of life imprisonment. A pre -sentence report had otherwise been submitted to
the court. I return to this aspect shortly hereafter.
[47] In aggravation of sentence in the trial court, the pr osecution emphasized the
prevalence and seriousness of the offence that the appellant was convicted of, as well
as its heinous nature. It was further submitted that since no substantial and compelling
circumstances were advanced on behalf of the appellant, the court was enjoined to
impose the sentence of life imprisonment.
[48] The Supreme Court of Appeal has held that the proper enquiry on appeal
concerning the sentence imposed by the trial court, is whether the facts which were
considered by the sentencing court are substantial and compelling or not.18
[49] In imposing the sentence of life imprisonment, the learned Regional Magistrate
found that no substantial and compelling circumstances existed which would justify a
deviation from the prescribe d sentence of life imprisonment. He considered the
probation officer’s report in which it was principally recorded that the appellant had
persisted in denying the offence, stating that the complainant agreed to be married to
him and that she may have repor ted having been raped under the pressure of coercion
by her uncle. In terms of education, he dropped out of the University of the Western
Cape while he was doing his first year due to financial challenges and subsequently
worked as a cleaner at that University.
[50] The probation officer also noted that the offence had caused negative
behavioural changes on the part of the complainant who ended up dropping out of
school. According to the probation officer, the complainant had become a belligerent
child who stayed away from home and went to cohabit with a male.
[51] The learned Regional Magistrate rejected the notion that the appellant acted
under a belief that he was following a customary practice when he had sexual
intercourse with the young complainant as his supposed wife. He reasoned that in as
much as the compla inant was given away by her aunt, the appellant was capable of
making the choice to reject arrangement that was made on his behalf.
[52] It bears mentioning that in S v Mvamvu19, a case involving rape in circumstances
where the accused had abducted his customary law wife who had deserted her marital
home, the Court remarked that that where the was evidence that the appellant’s actions
18 S v Bail ey 2013 (2) SACR 533 (SCA), para 20 ; compare S v Malgas (117/2000) [2001] ZASCA 30;
[2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001) ( Malgas),
para 12.
19 S v Mvamvu (350/2003) [2004] ZASCA 90; [2005] 1 All SA 435 (SCA); 2005 (1) SACR 54 (SCA) (29
September 2004), para 16 and 17.
were shaped and moulded by the norms, beliefs and customary practices by which he
lived his life which were his ingraine d traits and habits, they should not be ignored but
weighed up against the benchmark provided by the legislature for offences of the
particular type.
[53] A disconcerting feature of the present case is that the appellant told the trial court
that it was hi s mother who initiated and facilitated the arranged marriage between him
and the complainant. This implies that he was a passive party who only proposed
marriage to the complainant on her arrival, at the direction of his mother.
[54] I searched the record in vain for evidence from the appellant where he asserted
any customary law precept that would have informed his conduct and any evidence that
his actions were influenced by his entrenched belief in that customary practice. Not that
these would constitute a defence nor would they, on their own, constitute substantial
and compelling circumstances. All of this is apart from the fact that even under
customary law, the wife, whether in an ordinary or arranged marriage, would have to be
of the age of majority. To conclude on this aspect, it bears mentioning that the fact that
the complainant was failed by her aunt who gave her away for the supposed marriage
is, for the present purposes, a neutral factor. As the learned Regional Magistrate
correctly observed, it was available to the appellant to invoke his own agency and
denounce the arrangement or at most turn it down.
[55] It is rather difficult to fathom why a person such as the appellant, who was by no
means illiterate or unsophisticated, conducted himself in the manner that he did. The
learned Regional Magistrate cannot be faulted in finding that no substantial and
compelling circumstances existed which justified a deviation from sentence of life
imprisonment which is prescribed for rape of the kind that the appellant was convicted
of. Indeed, none appear from his personal circumstances.
of. Indeed, none appear from his personal circumstances.
[56] However, the absence of substantial and compelling circumstances from the
personal circumstances of the appellants is not in and of itself the end of the inquiry. As
held in Vilakazi,20 a prescribed sentence cannot automatically be assumed to be
proportionate in a particular case, and that disproportionate sentences are not to be
imposed as the courts are not vehicles for injustice.
[57] In S v Dodo,21 the Court held that it is incumbent on a court in every case, before
it imposes a prescribed sentence, to assess, upon a consideration of all the
circumstances of a particular case, whether the prescribed sentence is indeed
proportionate to the offence in question. This the court does by considering 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.
[58] In the context of the present case, a fact which must be given consideration is
that the rape of which the appellant was convicted of is not one of the worst ones. In
Mudau v S22 the Court remarked:
‘[17] It is necessary to reiterate a few self -evident realities. First, rape is
undeniably a degrading, humiliating and brutal invasion of a person’s most
intimate, private space. The very act itself, even absent any accompanying
violent assault inflicted by th e perpetrator, is a violent and traumatic infringement
of a person’s fundamental right to be free from all forms of violence and not to be
treated in a cruel, inhumane or degrading way. In S v Vilakazi, Nugent JA
referred to the study done by Rachel Jewkes and Naeema Abrahams on the
epidemiology of rape which concluded on the available evidence that ‘women’s
right to give or withhold consent to sexual intercourse is one of the most
commonly violated of all, human rights in South Africa’.
[18] The second self-evident truth (albeit somewhat contentious) is that there are
categories of severity of rape. This observation does not in any way whatsoever
detract from the important remarks in the preceding paragraph. This court held in
detract from the important remarks in the preceding paragraph. This court held in
20 S v Vilakazi 2009 (1) SACR 552 (SCA) (Vilakazi) para18.
21 2001 (3) SA 382 (CC) para 37; S v Vilakazi, footnote 21 supra, at para 15.
22 Mudau v S (764/12) [2012] ZASCA 56 (9 May 2013); see also S v Brahams 2002 (1) SACR 116 (SCA).
S v Abrahams that ‘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 and
unjust’. The advent of minimum sentence legislation has not changed the
centrality of proportionality in sentencing.”
[59] While I say this, I remain acutely alive to the reality that the offence of rape of the
victim (who, in this case, was only 15 years old) is, on its own, a traumatic injury to the
victim’s psychological being. To think otherwise would be dishonest of this Court.
[60] To the extent that the learned Regional Magistrate did not consider the
proportionality of life imprisonment after his finding that no substantial and compelling
circumstances existed from the appellant’s personal circumstances to justify a lesser
sentence, he erred. I make the finding that the cumulative circumstances of the case,
ought to have weighed in favour of the appellant as constituting substantial and
compelling circumstances.
[61] In the circumstances, the sentence of life imprisonment is disproportionate to the
offence the appellant committed. It is regrettable that little to nothing was done, both in
the trial court and in this Court, to present argument on behalf of the appellant, on the
existence or otherwise of substantial and compelling circumstances. This
notwithstanding, when regard is had to the record, this Court is entitled, by virtue of its
inherent powers of intervention, to disturb the findings of the t rial court regarding
sentence.
[62] With that said, it is an undeniable fact that the appellant committed a deplorable,
heinous and degrading act of sexually violating the young complainant. A substantial
period of imprisonment is still necessary. I am s atisfied that from the date of sentence,
being 20 July 2018, the appellant has served a part of the sentence of life
imprisonment.
[63] In the result, I would make the following order:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld, and the sentence of life imprisonment
is set aside and substituted for the sentence set out below:
“The accused is sentenced to 18 years’ imprisonment”.
3. In terms of section 282 of the Criminal Procedure Act 51 of 1977, the
substituted sentence is antedated to 20 July 2018.
_________________________
L. RUSI
JUDGE OF THE HIGH COURT
I agree:
______________________
M. MHAMBI
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
For the appellant : Mr X Babane
: Legal Aid South Africa
Mthatha Local Office
Counsel for the first respondent : Adv. S. Mfihlo
The Office of the Director of Public Prosecutions,
Mthatha
Date heard : 19 February 2025
Date delivered : 19 August 2025