SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A206/2025
In the matter between
LEREKO JOSEPH MOROKE APPELLANT
And
THE STATE RESPONDENT
Neutral citation: Moroke v The State (A206/2023) [2025] ZAFSHC 266 (29 August
2025)
Coram: Lekokotla AJ et Mhlambi ADJP
Heard: 4 August 2025
Delivered: 29 August 2025
Summary: Criminal law – sentencing – minimum sentence – substantial and
compelling circumstances.
ORDER
The appeal against the sentence imposed by the magistrate is dismissed.
JUDGMENT
Lekokotla AJ (Mhlambi ADJP Concurring)
[1] The appellant was charged with assault with intent to cause grievous bodily harm,
in that on 1 September 2018 near Thabong, in the district of Welkom, the appellant
2
intentionally and unlawfully assaulted M[...] M[...] by hitting her with clenched fists and
hitting her with a chain or other action with the intent to cause her grievous bodily harm.
This was count 1.
[2] The appellant was also charged with raping the complainant, in contravention of the
provisions of s 3 of Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007 (read with the provisions of s 51(1) of Criminal Law Amendment Act 105 of
1997), in that on 1 September 2019, he unlawfully and intentionally committed acts of
sexual penetration with the complainant who was 19 years old at the time, by inserting
his penis into her vagina without her consent, more than once. This was count 2.
[3] The accused appeared before the honourable Magistrate Lefenya at the Welkom
Magistrates Court and pleaded not guilty to both charges.
[4] In his plea explanation in terms of s 105 of the Criminal Procedure Act 51 of 1977,
in respect of count 1, the appellant admitted to arguing with the complainant, and that the
argument escalated to a physical altercation. However, he testified that he only assaulted
the complainant once with an open hand on the face. In respect of count 2, the appellant
admitted to having had sexual intercourse with the complainant once, which he contends
was consensual. He stated further that he was surprised when the police cam e to arrest
him for rape on 2 September 2018.
[5] At the conclusion of the trial, the a ppellant was found guilty and convicted of the
following:
‘Count 1: Assault with the intent to do grievous bodily harm and sentenced to 3 years
imprisonment;
Count 2: Contravention of the provisions of Section 3 of Act 32 of 2007 (read with the provisions
of Section 51 (1) of Act 105 of 1997) and sentenced to life imprisonment.’
[6] The learned magistrate ordered that the sentence in count 1 would run concurrently
with the sentence in count 2.
[7] In terms of s 10 of the Judicial Matters Amendment Act 42 of 2013, the appellant
3
enjoys an automatic right to appeal. The appellant’s notice of appeal was filed before this
court on 19 September 2024, wherein the appellant noted an appeal against the
sentence imposed by the court a quo on 17 September 2024 in respect of both counts.
[8] The matter is now before court on appeal against sentence imposed by the court a
quo on 17 September 2024. The basis for the appellant’s appeal is that the sentence
imposed by the court a quo was shockingly harsh and severe and that the learned
magistrate erred in placing too much emphasis on the crime and the interests of the
community without considering the appellant’s personal circumstances.
Appeal against sentence
[9] In S v Rabie,1 the then Appellate Division held as follows in relation to sentence:
‘1. In every appeal against sentence, whether imposed by a magistrate or a Judge,
the Court hearing the appeal -
(a) should be guided by the principle that punishment is “pre -eminently a matter for the discretion
of the trial Court”; and
(b) should be careful not to evade such discretion: hence the further principle that the sentence
should only be altered if the discretion has not been “judicially and properly exercised”.
2. The test under (b) is vitiated by irregularity or misdirection or is disturbingly
inappropriate.’
2
[10] It is trite that the imposition of sentence is pre-eminently a matter that falls within the
discretion of the trial court. Consequently, a court of appeal can only interfere with the
sentence of the trial court where it is satisfied that the trial court’s sentencing discretion
was not judicially and properly exercised. That is, where there was a misdirection on the
part of the trial court in the imposition of the sentence
3 or when the sentence imposed by
the trial court is vitiated by irregularity or misdirection or is disturbingly inappropriate.4
[11] The principles set out above serve as guidelines on whether to interfere with the
finding of the magistrate on sentence.
finding of the magistrate on sentence.
1 S v Rabie 1975 (4) SA 855 (A) (Rabie) at 857D-E.
2 This test set out in Rabie was confirmed by the Supreme Court of Appeal in S v Romer [2011] ZASCA 46;
2011 (2) SACR 153 (SCA).
3 See S v Blank 1995 (2) SACR 62 (A); S v Kgosimore [1999] ZASCA 63; 1999 (2) SACR 238 (SCA); S v
Obisi 2005 (2) SACR 350 (SCA) and Moswathupa v S [2011] ZASCA 172; 2012 (1) SACR 259 (SCA).
4 Op cit fn 12.
4
[12] Accordingly, the issue to be decided by this court is whether the life imprisonment
sentence imposed by the trial court in respect of rape, on multiple occasions, and three
years for assault with intent to cause grievous bodily harm, are in fact shockingly
inappropriate or demonstrate a misdirection and indiscretion on the part of the learned
magistrate. If she did, this court would have the right to interfere by setting aside such
sentence and substituting it with what it considers an appropriate sentence. If not, then
the sentence imposed by the trial court will stand.
[13] S v Zinn (Zinn)
5 states that when engaging in this endeavour, this court must have
regard to the interest of the society, the seriousness of the crime and the personal
circumstances of the appellant.
6 In addition to the Zinn factors, the court must also
consider the recognised objectives of sentencing being prevention, rehabilitation,
deterrence and retribution.
[14] In S v Malgas (Malgas),
7 the Supreme Court of Appeal (SCA) held that , in the
absence of substantial and compelling circumstances, a sentencing court is entitled to
depart from imposing the prescribed minimum sentences, if it is of the view that having
regard to the nature of the offence, the personal circumstances of the accused, and the
interests of society, it would be disproportionate and unjust to do so. Therefore, a court of
appeal will only interfere with a sentence if it is shockingly inappropriate or if an
irregularity occurred during sentencing.
8
[15] In Bailey v S,
9 the SCA held as follows:
‘What then is the correct approach by a court on appeal against a sentence imposed in terms of
the Act? Can the appellate court interfere with such a sentence imposed by the trial court's
exercising its discretion properly, simply because it is not the sentence which it would have
imposed or that it finds shocking? The approach to an appeal on sentence imposed in terms of
imposed or that it finds shocking? The approach to an appeal on sentence imposed in terms of
the Act should, in my view, be different to an approach to other sentences imposed under the
5 S v Zinn 1969 (2) SA 537 (A).
6 Ibid.
7 S v Malgas [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469
(SCA) (Malgas).
8 Ibid para 12.
9 Bailey v S [2012] ZASCA 154; 2013 (2) SACR 533 (SCA) para 20.
5
ordinary sentencing regime. This, in my view, is so because the minimum sentences to be
imposed are ordained by the Act. They cannot be departed from lightly or for flimsy reasons. It
follows therefore that a proper enquiry on appeal is whether the facts which were considered by
the sentencing court are substantial and compelling or not.’
[16] Section 51(1) of the Criminal Law Amendment Act 105 of 1997 prescribes life
imprisonment for rape since the complainant was (previously) in a domestic relationship,
as defined in s 1 of the Domestic Violence Act 116 of 1998, with the accused; and/or it
involved the infliction of grievous bodily harm.
[17] The evidence that was given by the complainant was that the appellant hit her with
a clenched fist on the left eye, on other parts of her body multiple times; strangled her
with a chain that is used to lock doors and hit her with the smaller chain that he wears
around his neck. The complainant also testified that the appellant also raped her three or
four times. Even though the appellant had initially indicated that he had sexual
intercourse with the complainant only once, he later changed and testified that he had
sexual intercourse with her twice.
[18] When it comes to the sentence imposed by the learned magistrate on the appellant,
the appellant’s contention is that the trial court misdirected itself in imposing life sentence
in respect of count 2, on the basis that it was too harsh and that consequently it should
be reduced to a lesser period.
Substantial and compelling circumstances
[19] In Malgas, the SCA held that , for circumstances to qualify as substantial and
compelling, they need not be ‘exceptional’ in the sense that they are seldom encountered
or rare.
10 In S v Pillay ,11 the court went on to state that nor are they limited to those
which diminish the moral guilt of the offender. Also, that where a court is convinced, that
after consideration of all the factors, an injustice would be done if the minimum sentence
after consideration of all the factors, an injustice would be done if the minimum sentence
is imposed, then it can characterise such factors as constituting substantial and
compelling circumstances and deviate from imposing the prescribed minimum
sentence.
12
10 Malgas para 10.
11 S v Pillay [2018] ZAKZDHC 11; 2018 (2) SACR 192 (KZD) para 10.
12 Ibid para 11.
6
[20] In S v Vilakazi, 13 the court explained that particular factors, whether aggravating or
mitigating, should not be taken individually and in isolation as substantial or compelling
circumstances. Ultimately, in deciding whether substantial and compelling circumstances
exist, one must look at traditional mitigating and aggravating factors and consider the
cumulative effect thereof. When sentencing, a court takes into account the personal
circumstances of an accused. However, only some of these carry sufficient weight to tip
the scales in favour of the accused to impact on the sentence to be imposed. Often the
fact that the accused is young and is a first offender has the effect of reducing a
sentence, as there is potential for the offender not to repeat the crime and to be
rehabilitated.
14
[21] Counsel for the appellant stated that the factors listed in paragraphs 3.1 to 3.10 of
the notice of a ppeal against sentence and paragraphs 3.1 to 3.8 of her heads of
argument amounted to substantial and compelling circumstances for the learned
magistrate to deviate from the prescribed minimum sentence of life imprisonment in
respect of count 2. She contended that the learned magistrate misdirected herself in
imposing life imprisonment against the appellant as she did so without considering those
personal circumstances.
[22] Some of the appellant’s personal circumstances included his youth at the time of
the offence, as he was only 22 years -old (and 29 years old at the time of sentencing);
that he was single and has a six year old son whom he has a relationship with and was
maintaining prior to incarceration; that he was only raised by his mother since his father
was deceased and he therefore played no role in his upbringing. Furthermore, that he
had a previous conviction for housebreaking, which he committed in 2012 and has not
been incarcerated since; as well as the fact that he was originally released on bail.
been incarcerated since; as well as the fact that he was originally released on bail.
[23] The appellant’s abovementioned personal circumstances are not the only
consideration for this court but have to be considered alongside the seriousness of the
offence, the complainant’s personal circumstances, the aggravating factors as well as the
interests of the community.
13 S v Vilakazi [2008] ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA) ; 2012 (6) SA 353
(SCA).
14 Ibid paras 54-60.
7
[24] Rape is a very serious offence that does not just leave physical scars but also
leaves emotional scars, which, in certain circumstances, never heal. This court does not
take this crime lightly. The scars that it has left the complainant are evident from the fact
that she cried when she was being raped; also what she stated with her own mouththat
she cried the following day when she recounted the events of the day. Even the physical
injuries that she sustained from being beaten by the appellant with clenched fists,
multiple times; being strangled by the appellant with a chain, similar to the ones that are
used to lock doors and being beaten by a smaller chain that he wears around his neck, at
different parts of her body are very serios injuries that this court cannot overlook. This ,
particularly because the appellant never took accountability for them.
[25] We have to consider that the complainant was younger than the appellant at the
time of the commission of the offence. She was 19 years old at the time. The appellant
had non-consensual sex with her on multiple occasions, which is his version where he
testified that they had sex ual intercourse twice. The appellant also inflicted serious
injuries on the complainant through clenched fists, on multiple occasions, which he
denied and said it was only once with an open hand. The complainant sustained serious
injuries, both physical and gynaecological. This cannot be disputed.
[26] We also have to consider the fact that the appellant and the complainant were
previously in a romantic relationship. This created a position of trust. This should count
against the appellant by betraying that trust and causing such serious injuries. These are
aggravating circumstances.
[27] Given how endemic gender -based violence is in South Africa, including, and
especially rape, this court cannot turn a blind eye to the very serious offences that the
appellant has committed against the complainant, which will no doubt have a lifelong
appellant has committed against the complainant, which will no doubt have a lifelong
impact on her.
[28] Therefore, the appellant has to demonstrate that the mitigating factors that he has
highlighted are substantial and compelling, in order to convince this court to deviate from
the statutorily prescribed sentence of life imprisonment in respect of count 2 and the
exercise of her discretion in respect of count 1.
8
[29] In Malgas15 it was held in relation to substantial and compelling circumstances,16
that
‘it suffices that they are ordinary circumstances which do not qualify as cogent or
sufficiently weighty to offences for which the appellant was convicted’. At paragraph 26 of
the same judgment, the SCA held as follows:
‘The specified sentences were not to be departed from lightly and for flimsy reasons which could
not withstand scrutiny. Speculative hypotheses favourable to the offender, maudlin sympathy,
aversion to imprisoning first offenders, personal doubts as the efficacy of the policy implicit in the
amending legislation, and like considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.’
[30] In Radebe v S,17 the court held as follows:
‘If substantial and compelling reasons are present in cases of the rape of an under -aged child
then it cannot be found only in the absence of physical injury. If regard is had to the triad of
factors (which must also accommodate the impact on the· victim) then I would venture that
something sufficiently extraordinary would have to be demonstrated by an accused in respect of
his reduced moral blameworthiness, other personal circumstances. the circumstances
surrounding the rape or. as unlikely as it may seem. possibly even the victim's circumstances in
order to displace the opprobrium and moral turpitude which Informs the interests of society to
punish in the manner reflected in the legislation in cases involving the rape of an under -aged
child.’
[31] The appellant’s legal representative was asked during the hearing to point out the
specific factors listed above that alleviated the traditional mitigating circumstances to
substantial and compelling circumstances, she conceded that she could not point out
any. Instead, she highlighted alleged remorse as a factor that this court ought to
consider. When this court pointed out that the appellant in fact demonstrated no remorse
consider. When this court pointed out that the appellant in fact demonstrated no remorse
for any of the offences at all throughout the proceedings and that the first time that the
word ‘remorse’ was mentioned was after he was found guilty of the offences.
15 Malgas paras 20-22, 25 and 26
16 Section 51(3) of the Criminal Law Amendment Act 105 of 1997.
17 Radebe v S [2019] ZAGPPHC 406; [2019] 3 All SA 938 (GP); 2019 (2) SACR 381 (GP) para 53.
9
[32] In particular, in respect of count 1, the appellant always maintained his innocence
and testified that he only hit the complainant once with an open hand as opposed to
clenched fists on multiple occasions at different parts of her body. The appellant’s
testimony is inconsistent with the injuries sustained by the complainant, which were
proven.
[33] In respect of the serious injuries that the complainant suffered around her neck,
which are consistent with the complainant’s testimony that he strangled her with a chain,
the appellant testified that he does not own a chain. He could not explain how the
complainant suffered those injuries. In fact, the appellant went as far as alleging that the
complainant may have sustained the injuries elsewhere. This was despite the fact that
there was no evidence that she might have sustained them elsewhere other than through
the assault to cause grievous bodily harm, which was inflicted by him.
[34] Insofar as count 2 is concerned, the appellant maintained his innocence throughout
the proceedings in the court a quo. He testified that he had consensual sexual
intercourse with the complainant and that they had ‘ two rounds’. To demonstrate his lack
of remorse, the appellant went as far as asking his friend Patric Kgosimeri to give
testimony to try and discredit the complainant by alleging, in the main, that he was
present during the majority of the times in the same room when the appellant and the
complaint had sexual intercourse. This was during the week leading up to 1 September
2018, including specifically on 1 September 2018.
[35] This was the first time that this version was heard by the court a quo. This testimony
contradicted the evidence that was given by the appellant. This demonstrates the lengths
to which the appellant was willing to go to try and deny that he raped the appellant more
than once on 1 September 2018.
[36] When all these issues were highlighted to the appellant’s legal representative, she
[36] When all these issues were highlighted to the appellant’s legal representative, she
indicated that, even though they do not demonstrate remorse, she pointed out that she
made the submission of remorse on instruction from the appellant. She also highlighted
that, even though the appellant has a previous conviction of housebreaking with intent to
steal in 2012, he has not been incarcerated again for another offence and that he was
originally released on bail.
10
[37] The appellant’s legal representative also asked that we consider, cumulatively, the
personal circumstances of the appellant. Her contention was that all the aforementioned
factors, taken together, amount to substantial and compelling circumstances that justify
interference by this court to reduce the sentence imposed by the court a quo to a lesser
sentence. When asked to address the court on the factors that the court should place
reliance on when doing so, she pointed out the age of the appellant and that he has a
minor child, whom he supports.
[38] We agree with the respondent’s contention that , even though the age of the
appellant should be considered, however, it should not be over emphasised as it needs
to be considered in the context of other factors, including the seriousness of the offence
and the interests of the community.
18
[39] We are not convinced that any of the factors listed by the appellant amount to
substantial and compelling circumstances which merit deviating from the prescribed
statutory minimum sentence of life sentence in respect of count 2, which is rape as well
as 3 years in respect of assault with intent to cause grievous bodily harm (count 1), which
was imposed by the trial court. They are traditional mitigating circumstances, which were
considered by the learned magistrate in imposing the prescribed statutory life
imprisonment sentence in respect of count 2.
[40] Since this court can only interfere with the sentence imposed by the court a quo in
case of a misdirection on the part of the learned magistrate, or that the sentence
imposed by the trial court is vitiated by or is disturbingly inappropriate, we are unable to
do so.
[41] In our view, the learned magistrate’s decision to impose three years imprisonment
in respect of count 1; and her failure to depart, in respect of count 2, from the prescribed
minimum sentence on the basis of the factors listed by the appellant’s legal
minimum sentence on the basis of the factors listed by the appellant’s legal
representative, does not demonstrate misdirection on her part or that the sentence
imposed by her is vitiated by or is disturbingly inappropriate in imposing life imprisonment
18 S v Obisi 2005 (2) SACR 350 (SCA) para 14.
11
for rape on more than one occasion, which is a statutorily prescribed minimum sentence
for this type of offence.
[42] Furthermore, the court a quo struck a proper balance between the seriousness of
the crime, the interest of the society on the one hand, and the personal circumstances of
the appellant on the other. Therefore, the sentence should stand.
[43] The appeal against the sentence imposed by the magistrate is therefore dismissed.
B D LEKOKOTLA
ACTING JUDGE OF THE HIGH COURT
I concur
J J MHLAMBI
ACTING DEPUTY JUDGE PRESIDENT
Appearances
For the appellant: S Kruger
Instructed by: Legal Aid South Africa, Bloemfontein
For the respondent: NM Tshefuta
Instructed by: Director of Public Prosecutions, Bloemfontein.