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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: A46/2023

In the matter between:

V[...] W[...] Appellant

and

THE STATE Respondent

Court: Justice J I Cloete et Acting Justice T Sarkas
Heard: 29 August 2025
Delivered electronically: 8 September 2025

JUDGMENT

SARKAS AJ:

[1] On 22 August 2022 the appellant was convicted of contravening s 3 of the
Criminal Law (Sexual Offences and Re lated Matters) Amendment Act1 (rape) by the
Somerset West Regional Court.

[2] The complainant was 14 years old at the time of commission of the offence,
and on 8 September 2022 the trial court imposed the prescribed minimum sentence
of life imprisonment. 2

[3] The appellant appeals against the conviction and the sentence imposed, on
the following grounds:

3.1. First, it is contended that the evidence in the matter proved that it was
reasonably possible that the appellant could have misconstrued the
complainant’s silence as consent, and so he did not have the necessary mens
rea to commit the offence of rape.
3.2. Second, it is submitted that the following considerations warrant
interference in the sentence imposed – the appellant has four children, two o f
whom are minors aged 13 and 14; the appellant also has no previous
convictions; given that life imprisonment is a minimum of 25 years, the
appellant will be approximately 81 years old when considered for parole; and
the trial court made no allowance for the appellant having misconstrued the
complainant’s silence for consent.

[4] The conviction arises from the trial court having found that the State had
proven beyond a reasonable doubt that the appellant had on several occasions
raped the complainant. Wh ile the appellant admitted to having had sexual
intercourse with the complainant, his defence at trial was that the complainant had
consented to same.

[5] This defence must be evaluated with reference to the nature of the consent
contemplated in the Sexua l Offences Act. In Director of Public Prosecutions Eastern

1 Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007 (‘the Sexual
Offences Act’).
2 In terms of s 51 (1) read with Part 1 of Schedule 2 of the Criminal Law Amendment Act No 105 of
1997 (‘the CLA’).

Cape, Makhanda v Coko (Women’s Legal Centre Trust and others as amici curiae)
the Supreme Court of Appeal held that:

5.1. The Sexual Offences Act explicitly requires that consent must be given
consciously and voluntarily, either expressly or tacitly by persons who have
the mental capacity to appreciate the nature of the act consented to.3
5.2. Mere submission, or acquiescence, or lack of resistance does not
convey a willingness to engage in a penetrative sexual act.4

[6] The State relied on the evidence of the complainant, the complainant’s mother,
a school friend of the complainant, and Dr Adelle Sterley, a medical doctor
specialising in the assessment of child victims of sexual abuse, who examined the
complainant and completed the J88 form. The appellant testified in his own defence
and called no other witnesses.

[7] The trial court’s summation of the evidence fairly and accurately reflects what
was contained in the record. It is not presently necessary to deal in d etail with the
evidence given by the complainant about precisely what occurred, given the
appellant’s admissions at trial and the unchallenged evidence regarding the
appellant’s role and conduct in relation to the complainant.

[8] The following facts became common cause during the trial:

8.1. The complainant’s date of birth is 11 August 2002.
8.2. The appellant is her stepfather, who at the time of the alleged offence
was 50 years old and had been married to the complainant’s mother since the
complainant was about 5 years old.
8.3. The appellant was a policeman at the time of the alleged offence, and
a figure of authority in the complainant’s life (a “ father figure” according to the
appellant).

3 Section 3 of the Sexual Offences Act provides that “ Any person (‘A’) who unlawfully and intentionally
commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the
offence of rape.”

offence of rape.”
4 Director of Public Prosecutions Eastern Cape, Makhanda v Coko (Women’s Legal Centre Trust and
others as amici curiae) [2024] 3 All SA 674 (SCA) (‘Coko’) paras 55-56.

8.4. The complainant’s home life was troubled. The appellan t, who was the
breadwinner in the family, abused alcohol and physically abused the
complainant’s mother.
8.5. The complainant had been taught by her mother to obey the
appellant’s instructions without question, in order to keep peace in the home.
8.6. The incidents of sexual intercourse resulting in the appellant being
charged occurred sometime during November 2016 up to and including
September 2017. The complainant did not resist the complainant during these
incidents.

[9] On the disputed issue of consent, the complainant’s denial that she had
consented to having sexual intercourse with the appellant was emphatic throughout
her evidence. The trial court was correct in finding that the complainant was a
credible witness. Furthermore, the complainant’s eviden ce was substantially
corroborated by her mother.

[10] The trial court was also correct in rejecting the appellant’s evidence on the
issue of consent as a fabrication. His assertions that the complainant forced herself
on him and seduced him, were coupled with his evasions when pressed to explain
what he did to stop her given the power dynamics of their relationship. Tellingly, in
his testimony the appellant repeatedly and consistently referred to the complainant
as “the child’.

[11] To his credit, at the hearing of the matter counsel for the appellant rightly
conceded that in applying the principles set forth in Coko, and taking into account
that the appellant was in a position of trust and had authority over the complainant,
who was 14 years old at the r elevant time, there is no basis for a finding that the
complainant’s defence of consent is reasonably possibly true.

[12] On a proper evaluation of the evidence, the trial court was correct in
concluding that the state proved its case beyond reasonable do ubt, and the appeal
against conviction must fail.

[13] In the assessment of whether substantial and compelling circumstances exist
to deviate from the prescribed minimum sentence imposed by the trial court, it is well
established that:5

13.1. The specif ied prescribed minimum sentences are not to be departed
from lightly and for flimsy reasons, and speculative hypotheses favourable to
the offender, undue sympathy and the like are to be excluded.
13.2. If a court is satisfied for objectively convincing re asons that the
circumstances of a particular case render the prescribed minimum sentence
unjust, that is, disproportionate to the crime, the offender and the legitimate
needs of society, it is entitled to characterise them as substantial and
compelling.
13.3. The test of gross disproportionality must be applied in order to
determine whether a sentence mandated by law is inconsistent with the
offender’s right under section 12(1)(e) of the Constitution not to be treated or
punished in a cruel, inhuman or degrading way.

[14] To this must be added the injunction in S v Matyityi, where the Supreme Court
of Appeal held that ‘…Courts are obliged to impose [minimum] sentences unless
there are truly convincing reasons for departing from them. Courts are not free to
subvert the will of the legislature by resort to vague, ill -defined concepts…or vague
and ill -founded hypotheses that appear to fit the particular sentencing officer’s
personal notion of fairness. Predictable outcomes, not outcomes based on the whim
of an individual judicial officer, [are] foundational to the rule of law which lies at the
heart of our constitutional order’.6

[15] Finally, in the recent judgment of M.T v S this Court, with reference to the
leading authorities dealing with the test for inte rference with sentences on appeal,
explained that:


5 See S v Malgas 2001 (1) SACR 469 (SCA); S v Dodo 2001 (1) SA 594 (CC).
6 S v Matyityi 2011 (1) SACR 40 (SCA) para 23.

15.1. There is no reason why the standard test which applies in appeals in
ordinary sentencing cases should not apply to appeals in prescribed minimum
sentence cases.
15.2. A court of appeal in a prescribed minimum sentence case should 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 judgment of them, unless and until it first finds that the sentencing
court’s determination of them was wrong as a result of a material
misdirection.7

[16] In the present matter, the trial court carefully weighed all relevant facts and
circumstances, including the appellant’s age and lack of remorse. The record also
reflects the devastating impact on the complainant, both in the evidence and in the
Victim Impact Report prepared by Ms Ada Buys, a social worker who specialises in
the assessment of child victims of sexual abuse, b ased at the Helderberg Child
Abuse Centre.

[17] The trial court correctly concluded that there were no substantial and
compelling circumstances to justify a deviation from the prescribed minimum
sentence. The appellant’s age does not detract from the abh orrence of the crime,
particularly when regard is had to the effect that a sexual crime has on a minor. What
is more, the appellant did not at any stage express remorse. In fact, he blamed the
complainant.

[18] Counsel for the appellant submitted that one of the factors to be considered is
that ‘no violence was perpetrated on the complainant’. This submission is misguided,
not least because the legislature has directed that, when imposing a sentence in
respect of rape, an apparent lack of physical injury t o a complainant cannot
constitute substantial and compelling circumstances justifying the imposition of a
lesser sentence. 8 Rape is a form of violence. In Director of Public Prosecutions,
KwaZulu-Natal v Ndlovu the Supreme Court of Appeal addressed the gra vity of the

KwaZulu-Natal v Ndlovu the Supreme Court of Appeal addressed the gra vity of the

7 M.T v S [2025] [ZAWCHC] 307 (25 July 2025) (WCC)
8 Section 51(3)(a A)(ii) of the CLA.

crime of rape and its attendant intolerable consequences, including the lasting
emotional and psychological trauma inflicted on the victim.9

[19] It is furthermore apposite to consider the observation in S v Vilakazi that ‘there
comes a stage at which the maximum sentence is proportionate to an offence and
the fact that the same sentence will be attracted by an even greater horror means
only that the law can offer nothing more.’10

[20] On the facts of this case, involving as it does the repeate d rape of a minor
child by her stepfather, the trial court’s reasoning cannot be faulted and the sentence
was not vitiated by material misdirection, nor was it shocking, startling or disturbingly
inappropriate or disproportionate.

[21] It follows that the appeal against sentence must also fail.

[22] The following order is made:

The appellant’s appeal against both conviction and sentence is
dismissed.


_________________________
T SARKAS
Acting Judge of the High Court

I agree, it is so ordered.

_________________________
J I CLOETE
Judge of the High Court



9 Director of Public Prosecutions, KwaZulu-Natal v Ndlovu 2024 (1) SACR 561 (SCA) paras 73-76.
10 S v Vilakazi 2012 (6) SA 353 (SCA) para 54,

Appearances:

For the appellant: Adv R Liddell
Instructed by: Moffit Attorneys

For the respondent: Adv E Erasmus
Instructed by: The National Prosecuting Authority,
Directorate of Public Prosecutions, Cape Town