SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE No: A07/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE: DIAMOND AJ
DATE: 27/8/2025
In the matter between:
MOSES NTOAMPE THEMA APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
DIAMOND AJ:
[1] The Appellant, who was an accused in the Regional Court for the Regional
Division of Limpopo held at Polokwane, was charged on the 29 th of May, 2023, with
two counts of rape, in that the Appellant was guilty of the crime of contravening the
provisions of Section 3 read with Sections 1, 55, 56 (1), 57, 58, 59, 60, and 61 of the
Criminal Law Amendment Act 32 of 2007, Sexual Offences and Related Matters also
read with the provisions of sections 256, 257, a nd 261 of the Criminal Procedure Act
51 of 1977, and part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of
1977.
[2] The charge read that on or about January 2019, and near Seshego, the
accused unlawfully and intentionally committed an act of sexu al penetration with two
nine-year-old Complainants, and, it is added on the charge sheet, without their
consent.
[3] If convicted, the accused stood to be sentenced to a minimum of life
imprisonment within the context of the above statutory provisions.
[4] The accused entered a plea of not guilty in respect of both charges.
[5] The state called as witnesses the two minor Complainants as well as their
mothers.
[6] The accused testified on behalf of himself and called no further witnesses.
[7] The Appellant was eventually found guilty on the 3 rd of October 2023 on the
two counts, both contravening the provisions of section 3 of Act 32 of 2007, read with
the provisions of section 51(1), Schedule 2, Part 1(b)(i) of Act 105 of 1997, in that the
Complainants were proved to be 9 years old at the time of the commission of the
offence.
[8] The regional court sentenced the Appellant on the 28 th of November 2023 to
two terms of life imprisonment.
[9] The Appellant noted an appeal to this court on the 11th of December 2023 and
noted an appeal against both the conviction and the sentence imposed by the
regional court.
[10] The first State Witness, one A[...] M[...] ("M[...]") is the biological mother of the
second state witness, which will be called in this judgment, Complainant 1.
[11] M[...] testified that during January 2022 that the third state witness one T[...]
R[...] G[...] ("G[...]") (G[...] is the biological mother of the Fourth State witness and will
be called in this judgment, Complainant 2) approached her at her homestead in
Seshego and had a discussion with her regarding the two Complainants.
[12] M[...] testified that G[...] told her t hat she, G[...], sent Complainant 2 to buy
tomatoes at a certain shop. When Complainant 2 returned to her, she had both
tomatoes and perfume with her.
[13] When G[...] made this report to M[...], both the first and the second
Complainants were present at the homestead of M[...] in Seshego.
[14] G[...] reported that she confronted the Complainant 2 with the fact that she
returned with perfume to her home, and it is at that stage that the Complainant 2
reported to G[...] that she and the first Complainant were raped in 2019.
[15] At this early stage of the record, the entire issue of the perfume is left hanging
in the air, rather unsatisfactorily.
[16] The record continues to show1 that both M[...] and G[...] then proceeded to the
homestead of the Appella nt (nicknamed "Blah"), since the Appellant was the person
pointed out by the two Complainants as the person who raped them in 2019.
[17] The record shows that M[...] described the Appellant to be her neighbor living
nearby, and she had known him for many years prior to 2019.
1 During testimony, the third state witness , G[...], testified that she and Complainant 2 together with
her husband had previously attempted to approach the appellant but were not successful.
[18] At the homestead of the Appellant, M[...] and G[...] confronted the Appellant
with the allegations of the First and Second Complainants.
[19] The Appellant denied the allegations of the two Complainants. There were
discussions regarding certain details of the incident, to which I will return later in this
judgment.
[20] M[...] then testified that after the denial of the Appellant,
"We then took the matter to the police."2
[21] The record is silent as to exactly w hen and how M[...] and G[...] reported the
matter to the police, but it apparently happened on the same day.
[22] The sequence of events that occurred after the police arrested the Appellant
is not satisfactory clear from the record.
[23] The police appa rently then took the accused to Robert's spaza shop, that is
the shop where Complainant 2 bought tomatoes.
[24] The legal representative of the accused put it to M[...] that the reason why
they visited the spaza shop was because the Complainants 1 and 2 insisted that the
accused was the one that gave them the perfume at the particular Spaza shop, and
apparently, the accused wished to investigate that version. He consistently denied
that he gave any of the children any perfume.
[25] It seems further to be common that the two Complainants conceded while at
the spaza shop, that a taxi driver gave the perfume to Complainant 2 and it was not
bought at the spaza shop, nor was it given by the Appellant to Complainant 2.
2 P. 130 record.
[26] While the sequence of events at the h omestead of the Appellant, as well as
the events thereafter and the visit at the spaza shop is a bit vague and unsatisfactory
on the record, the testimony of the two Complainants as to what happened on the
day of the alleged incident, was very accurate and consistent.
[27] She testified that she and Complainant 2 were friends in 2019.
[28] The second state witness, that is Complainant 1, testified that during January
2019, she and Complainant 2 prepared to go to church.
[29] She testified that in the pr ocess of preparing for church 3, she indicated to
Complainant 2 that they should first visit the homestead of her mother at Chuvele.
[30] While on their way to the house of Complainant 1, they passed the shack of
the Appellant. The Appellant requested them to visit him after they had gone to
church.
[31] She testified that she knew the Appellant since her mother frequently sent her
in the past to the Appellant's shack to borrow garden tools.
[32] She testified further that the Appellant's shack is next to their homestead.
[33] After they attended church, both Complainant 1 and Complainant 2 returned
to their grandmother's place of residence.
[34] Around 5:00, she went to the homestead of the second Complainant and
reminded the second Compla inant that the Appellant requested them to visit him at
his shack. And they decided to proceed to the shack of the Appellant.
[35] When they reached the shack of the Appellant, they found him seated on a
crate outside the door of the shack.
3 The record is a bit unclear on the timing of this visit.
[36] The Appellant thereafter invited them into the shack, and he closed the door
after which he consecutively raped first Complainant 2, and thereafter Complainant 1.
[37] I will not give any detailed description of how the rape took place in this
judgment. However, I believe the following elements are important.
• Both Complainants one and Complainant two testified that there was
an iron bed standing upright against the wall of the shack.
• Both testified that they saw a bucket, a primus stove, and certain tools
such as a hammer, nails, and a screwdriver, were in the shack.
• Both testified that the Appellant threw a blanket on the floor and
ordered the two Complainants to lie on their backs, after which the rape took
place.
• Both identified the blanket as being a brown blanket.
• Both the Complainants were describing the way the rape took place,
and their version substantially corroborated one another in all material
respects.
[38] G[...] testified and confirmed that she confronted Complainant 2 with the
perfume that she returned from the shop after having purchased tomatoes. She also
confirmed that Complainant 2 lied to her about the origin of the perfume, initially
indicating that she pi cked it up along the road. She confronted Complainant 2 with
this version, stating that the version is unrealistic. Harsh words fell between her and
Complainant 2. At some stage, she indicated to Complainant 2 that she wanted the
truth, and eventually, Complainant 2 indicated that it was the Appellant that gave her
the perfume and that the Appellant slept with her.
[39] Complainant 2 indicated that Complainant 1 was also raped, and it was at that
stage that G[...] and Complainant 2 proceeded to the homeste ad of M[...], and the
sequence of events as testified by M[...] and which was described above, then
unfolded.
[40] In the notice of appeal, the Appellant made several submissions: That the
State did not prove the guilt of the Appellant beyond reasonable doubt; that the State
witnesses gave evidence in an unsatisfactory manner, that there were improbabilities
inherent in the State's version, that there were contradictions in the testimony of the
two minor children.
[41] To assess the grounds of appeal rel ied on by the Appellant, it is necessary to
consider the approach that the court should take when a court is confronted with
contradictions in evidence, as well as inaccuracies and sometimes even
untruthfulness.
[42] In the case of S v PHK 4 the court sum marised the approach that was
articulated in the case of the State versus Mafaladiso and Andere5:
"In Mafaladiso it is summarised in the headnote that the juridical approach to
contradictions between two witnesses and contradictions between the
versions of the same witness (such as, inter alia, between her or his viva voce
evidence and a previous statement), is, in principle (even if not in degree),
identical. Indeed, in neither case is the aim to prove which of the versions is
correct, but to satisfy one self that the witness could err, either because of a
defective recollection or because of dishonesty. The mere fact that it is
evident that there are self -contradictions must be approached with caution by
a court. Firstly, it must be carefully determined w hat the witnesses actually
meant to say on each occasion, in order to determine whether there is an
actual contradiction and what is the precise nature thereof In this regard the
adjudicator of fact must keep in mind that a previous statement is not taken
down by means of cross -examination, that there may be language and
cultural differences between the witness and the person taking down the
statement, which can stand in the way of what precisely was meant, and that
statement, which can stand in the way of what precisely was meant, and that
4 2003 (2) SACR 234 (FB).
5 2003 (1) SACR 583 (SCA).
the person giving the statement is seldom , if ever, asked by the police officer
to explain their statement in detail. Secondly, it must be kept in mind that not
every error by a witness, and not every contradiction or deviation, affects the
credibility of a witness. Non -material deviations are no t necessarily relevant.
Thirdly, the contradictory versions must be considered and evaluated on a
holistic basis. The circumstances under which the versions were made; the
proven reasons for the contradictions; the actual effect of the contradictions
with regard to the reliability and credibility of the witness; the question whether
the witness was given a sufficient opportunity to explain the contradictions -
and the quality of the explanations - and the connection between the
contradictions and th e rest of the witness's evidence, amongst other factors,
are to be taken into consideration and weighed up. Lastly, there is the final
task of the trial judge, namely, to weigh up the previous statement against the
viva voce evidence, to consider all the e vidence and to decide whether it is
reliable or not, and to decide whether the truth has been told, despite any
shortcomings. (At 593e - 594h.)"
[43] To balance all the above considerations requires that the court shall act with
"judicial wisdom.6
[44] Hence, for an Appellant to rely on contradictions, improbabilities, and even
elements of untruthfulness, such an Appellant must indicate clearly where the court a
quo erred. It is insufficient for an Appellant simply to point to the mere existence of
contradictions, improbabilities, and unsatisfactory aspects in the evidence of the
case.
[45] What is required of an Appellant is to indicate how the above shortcomings
impact on the basic narrative of the case of the state, on which the state relies on for
the conviction of an accused.
[46] In my view, the following remark of the Honourable Regional Magistrate is
highly significant.7
6 PHK Par 21.
"The Complainants reported the incidents in 2022, more or less three years
after the commission of the offence, and they only testified in 2023. It is highly
improbable that the two Complainants at the respective ages of whether they
were 12/13 or 13/14, would have the mental capacity to crafted(sic) their
evidence to corroborate one another in such minute detail, it does no t appear
that they have been taught or coach (sic) to relay this specific version in
court."
There is nothing to indicate that the children had any motives to implicate the
accused falsely. Complainant 2 led her mother directly to the house of the
accused. Complainant 2's mother did not know the accused at all.
Complainant 1 knew him as her mother's neighbour Blah. It is also not
disputed that the accused goes by the nickname Blah and that Complainant 1
was able, upon the description, to immediately identify the accused as Blah."
[47] It is furthermore significant that the Honourable Regional Magistrate devoted
serious attention to those instances of inconsistencies and improbabilities as they
appeared from the witnesses of the state's case.8
[48] The Honourable Regional Magistrate stated the following:9
"Discrepancies between the evidence of the witnesses related to the evidence
of the victims about their return from church, when they would have gone to
the accused, and upon their return, did they direct ly pass by the house of the
Complainant, or did they go to the house of one of the Complainants first?
And only later during the afternoon, whether the accused gave them one or
two pillows to lay on."
[49] The Honourable Regional Magistrate proceeded as f ollows with regard to the
discrepancies identified by the defense:
7 P. 484 record.
8 P. 488 - 490 record.
9 P. 489 record.
"Neither of these discrepancies is material to the extent that they should
warrant the rejection of the evidence of witnesses. It is tried law that not every
error will affect the credibil ity of a witness. The witnesses testified about a
year and a half after the accused was apprehended and confronted and
apprehended."
[50] I agree with the Honourable Regional Magistrate.
[51] It also needs to be remarked at this stage that the evidence of the state was
presented in a somewhat clumsy manner, and that factor should be taken into
account when assessing some of the responses of the witnesses of the State.
[52] Be that as it may, I agree with the Honourable Regional Magistrate that those
instances of discrepancies or contradictions (if indeed there are such instances) are
not nearly enough to drown out the overwhelming inferences to be drawn from the
testimonies Complainant 1 and 2 that the rapes indeed occurred, and the manner
and detailed descriptions of how it occurred.
[53] In my view, the appeal against the convictions should be dismissed.
[54] The Appellant also noted an appeal against the sentences imposed on him,
that is, two terms of life imprisonment.
[55] The Notice of Appeal states as follows:
''An effective term of life imprisonment is strikingly inappropriate in that:
4.1 The Court erred in not finding that, given the circumstances of the
Appellant, he can be rehabilitated into a law-abiding member of society.
4.2 The Court further erred in over-emphasizing the following factors:
4.1 The seriousness of the offence.
4.2 The interests of society.
4.3 Prevalence of the offence.
4.4 The deterrent effect of the sentence.
4.5 The retributive element of sentencing.
4.6. The rape statistics in the country."
[56] The notice of appeal, furthermore, states that the learned magistrate
overlooked the fact that the appellant was a first offender.
[57] In argument, the legal representative of the Appellant added that it should be
regarded as a mitigating factor that the Appellant was 58 years old, that the
Complainant suffered no physical injuries, and that the offence was committed in a
non-violent manner.
[58] Section 51(1) Schedule 2(1) of the General Law Amendment Act 105 of 1997
provides that the minimum sentence for a first offender is a sentence of life
imprisonment unless the court is satisfied that substantial and compelling
circumstances exist which will justify the imposition of a lesser sentence.
[59] The court below considered the following mitigating circumstances when
considering imposing the sentence:
• The court below took notice that the Appellant was 58 years old at the
date of the sentence and considered this age as a mitigating factor, but not a
bar to a sentence of imprisonment.
• The accused's wife passed on in 1994, and he has three adult children.
The accused still supported his grown children financially, and the court
considered the fact or that a productive member of society contributing to the
family's financial support is a factor that might play some role when the
sentencing court is considering whether or not to impose a significant period
of direct imprisonment.
• The accused report ed that he suffers from an undisclosed chronic
disease.
• The accused has already spent 23 months in custody awaiting his trial.
[60] The court below considered aggravating circumstances. The following
aggravating circumstances were considered:
• The court must take into account the nature of the crime and the
gravity of the offence.
• The court remarks that in that regional division, more than 50% of the
matters on the court roll is sexual and gender -based violence with frequent
incidences of sexual offences related to minor children.
• That there are disproportionately high levels of violence against women
and children which has immeasurable and far -reaching effects on the health
of the nation and its economy.
• That despite severe underreporting, there are 51 cases of child
victimisation per day.
• The court refers to authority where it was stated that rape of women
and children are rampant in South Africa. It has reached an alarming
proportion.
[61] After having considered the above mentioned an d further factors in more
detail, the court could not find any reasons that would constitute compelling and
substantial reasons to justify a deviation from the prescribed minimum sentence. The
court states that the aggravating factors outweigh the mitigating factors.
[62] The only serious submission that the Appellant made on appeal with regard to
his sentence is that the Honourable Court below did not give enough weight to his
age of 58 years.
[63] The Supreme Court of Appeal of South Africa in a judgment, the State v Solly
Ramoba10 ("Ramoba"), stated the following:
"It is trite law that the Court of Appeal may only interfere with a sentence
imposed where it induces a sense of shock or is tainted by misdirection.
[64] In that judgment, the Supre me Court of Appeal cited a paragraph from the
State v Salzwedel11 and others in which it was held that,
"an appeal court is entitled to interfere with a sentence imposed by a trial
court in a case where the sentence is disturbingly inappropriate or totall y out
of proportion to the gravity or magnitude of the offence or sufficiently disparate
or vitiated by misdirections of a nature which shows that the trial court did not
exercise its discretion reasonably.".
[65] In the case of Ramoba, an accused who was 53 years old was sentenced on
several counts. The net effect of the sentence was 52 years' imprisonment. That
means that the effective term of sentencing was deemed to be 52 years'
imprisonment, which was deemed to be shockingly inappropriate since it is generally
accepted that a sentence designed to surpass the natural life span of an offender
(which might happen in the case of Ramoba) ought not to be imposed. The Court set
aside the sentenc es imposed by the Court below and replaced it with a 28 -year
effective term of imprisonment.
[66] The only significant submission that the Appellant's legal representatives
made on appeal was that the advanced age (if the age of 58 years can be regarded
as advanced) was not properly taken into consideration when the Court below
considered the question whether there were compelling and substantial reasons to
deviate from the mandatory life sentences.
[67] It is apposite at this stage to consider the effect of sentencing by a court on an
accused.
10 2017 (2) SACR 353 (SCA).
11 1999(2) SACR 586 (SCA).
[68] In the often -quoted judgment of State v Mhlakaza and another 12 , the
Supreme Court of Appeal per a judgment delivered by Justice Harms specifically
addressed the role of a sentencing court regarding the duration of imprisonment.
Justice Harms stated as follows:
"The function of a sentencing court is to determine the maximum term of
imprisonment a sentenced person may serve; it is not, except in a special
case, its function to determine how long the person will actually serve. This is
a matter for the prison and parole authorities."
[69] In a judgment of the Appellate Division in the case of State v Nkosi Hefer JA 13
stated the following with regard to the circumstances of the accused in that case as
well as the approach to sentencing (what follows is my translation of the Afrikaans
judgment. The original Afrikaans appears in the footnote14:
12 1997 (1) SACR 515 (SCA).
13 1993 (1) SACR 709(A).
14 Die omvang, aard en erns van appellant se wandade spreek vir sigself. Wat veral opval is sy
brutaliteit en sy gevoelloosheid teenoor sommige van sy slagoffers. Respek vir hulle lewens en
liggame het hy sekerlik nie getoon nie en vir lwlle goedere natuurlik nog minder. Die byna dierlike
wyse waarop hy die luste v an sy vlees bevredig het, moet ook nie misgekyk word nie. Dit, en sy
impulsiewe gewelddadigheid waar mee hy volhard het selfs na sy aanvanklike arrestasie en
ontsnapping terwyl hy 'n voortvlugtende van die gereg was, dui sterk daarop dat sy straf nie alle en as
boetedoening moet dien nie, maar dat sy vonnis, ter besker ming van die gemeenskap, hoofsaaklik
gerig moet wees op die voorko ming van dergelike optrede in die toeko ms. Sou daar enige werklike
vooruitsigte op hervorming gewees het, mag die result aat anders gewees het, maar daar is geen
aanduidings dat die appellant vatbaar is daarvoor nie. Dit is waar dat hy horn, na sy eerste
teregwysing gedurende 1973, vir ongeveer 15 jaar weerhou het van ernstige misdaad. Dit is ook waar
dat die vlaag misdade wat tans ter sprake is, gepleeg is nadat hy vrygelaat is uit die gevangenis en
gevind het dat hy sy werk kwyt was. Hy het egter nie probeer te kenne gee dat al sy oortredings uit
nood gebore was nie en, gesien die aard daarvan, sou so 'n aanspraak in elk g eval onsinnig wees. Hy
het eenvoudig doelbewus besluit op 'n loopbaan as beroep misdadiger en daar mee volgehou totdat
hy aangekeer is. Hy het 'n geharde rampokker geword wat gewoond is om sy wil gewelddadig te laat
geld. Daar is geen rede om enigsins te vermoed dat hy in die toeko ms 'n ander weg sal inslaan nie.
Daarom kan effektiewe beskerming slegs aan die gemeenskap verleen word deur te probeer verseker
dat hy nie weer vrygelaat word nie.
Die Verhoorregter het ongetwyfeld dieselfde doe l voor oe gehad met sy weiering om toe te laat dat
die vonnisse op die afsonderlike aanklagte gelyktydig uitgedien word. Ek verkies egter 'n eenvoudige
vonnis van lewenslange gevangenisstraf wat meer realisties is omdat di! nie een is wat die appellant
nooit sal kan uitdien nie en boonop sal meebring dat daar - weens die bepalings van art 64 van Wet 8
van 1959, soos gewysig - verantwoordelike beheer oor sy aanhouding behoor t te wees. Soos
aangedui in S v Young 1977 ( 1) SA 602 (A) op 61 0G kan daar, anders as wat die geval met
verhoorhowe is, nie probleme ontstaan wanneer hierdie Hof 'n gesamentlike vonnis ople vir meerdere
oortredings wat tesame geneem word vir doeleindes van vonnis nie. Dit is wat ek van voorneme is om
te doen.
"The scope, nature, and seriousness of the Appellant's misconduct speak for
themselves. What is particularly striking is his brutality and his lack of feeling
towards some of his victims. He certainly did not show respect for their lives
and bodies, and naturally even less for their possessions. The almost animal -
like manner in which he satisfied the lusts of his flesh should also not be
overlooked. This, and his im pulsive violence with which he persisted even
after his initial arrest and escape while he was a fugitive from justice, strongly
indicate that his punishment should not serve merely as retribution, but that
his sentence, for the protection of the community , should be aimed primarily
at preventing such conduct in the future. Had there been any real prospects of
reform, the result might have been different, but there are no indications that
the Appellant is amenable to such reform. It is true that, after his first
conviction during 1973, he refrained from serious crime for approximately 15
years. It is also true that the spate of crimes currently under discussion was
committed after he had been released from prison and found that he had lost
his job. He, howev er, did not attempt to suggest that all his offences were
born out of necessity and, given their nature, such a claim would in any event
be absurd. He simply and deliberately decided on a career as a professional
criminal and persisted in it until he was a pprehended. He became a hardened
robber accustomed to enforcing his will violently. There is no reason to
suspect in any way that he will choose a different path in the future. Therefore,
effective protection can only be afforded to the community by attemp ting to
ensure that he is never released again.
The Trial Judge undoubtedly had the same objective in mind with his refusal
to allow the sentences on the separate charges to run concurrently. I,
however, prefer a single sentence of life imprisonment, whic h is more realistic
however, prefer a single sentence of life imprisonment, whic h is more realistic
because it is not one which the Appellant will never be able to serve, and in
addition will mean that-due to the provisions of section 64 of Act 8 of 1959, as
amended - there ought to be responsible control over his detention . As
indicated in S v Young 1977 (1) SA 602 (A) at 610G, unlike the position with
trial courts, there can be no problems when this Court imposes a combined
sentence for multiple offences taken together for purposes of sentence. That
is what I intend to do."15
[70] Harms J. A in the case of Mhlakaza also made the following remark on page
521G of the report:
"Apart from the fact that court s are not entitled to prescribe to the executive
branch of government as to how and how long convicted persons should be
detained (see the clear exposition by Kriegler J in S v Nkosi (1), S v Nkosi (2),
S v Mchunu 1984 (4) SA 94 (T)) courts should also ref rain from attempts,
overtly or covertly, to usurp the functions of the executive by imposing
sentences that would otherwise have been inappropriate.
[71] In my view, the above remarks of the Appellate Division and Supreme Court
of Appeal should be underst ood as follows for the purposes of sentencing in this
case: -
[72] The Correctional Services Act, 1998 (Act No. 111 of 1998) stipulates as
follows in Section 73(6)(b)(iv):
"(b) A person who has been sentenced to-
(i) periodical incarceration must be detained periodically in a correctional
centre as prescribed by regulation;
(ii) ..... .
(iii) ..... .
(iv) life incarceration for an offence committed after the commencement of
Chapters IV, VI and this Chapter may not be placed on d ay parole or parole
until he or she has served at least 25 years of the sentence,·"
and further in section 73 (6)(b)(vi):
" ....any term of incarceration, excluding persons declared dangerous
criminals in terms of section 286A of the Criminal Procedure Ac t, may be
15 Emphasis added.
placed on day parole or parole on reaching the age of 65 years provided that
he or she has served at least 15 years of such sentence."
[73] It is therefore clear, in my view, that a sentence of life imprisonment does not
entail imprisonment for the rest of the life of such a sentenced person.
[74] The question regarding the length of imprisonment of a sentenced person
depends on the discretion of the executive branch of government in accordance with
their parole policies and legislative context.
[75] In my view, the judgments of Mhlakaza and Nkosi referred to above,
underscore the principle that a court should resist the temptation to circumvent the
discretion of the executive authority, to release a person on parole, by c arefully
crafting a sentence that would ensure indefinite detention and incarceration of a
sentenced person.16
[76] It is against this backdrop that the remarks of the court in Ramoba should be
understood. In that case, the court below crafted a sentence that would, if
implemented, have the net effect of an incarceration period that would extend the
anticipated lifespan of the accused.
[77] The Court in Nkosi, when confronted with the same scenari o, indicated, per
the judgment of Hefer JA, that a judgment of life imprisonment does have inbuilt
safeguards of proper supervision as a result of the stipulations of the 1959
Correctional Service Act (Act 9 of 1959). For that reason, he preferred a simple life
sentence to compounded sentences for several crimes simultaneously.
[78] The central question in this case is whether substantial and compelling
circumstances exist which will justify the imposition of a lesser sentence. It is
important to note that in the cases mentioned above, that is, the case of Nkosi, and
the court did not consider the appeal against the sentence against the backdrop of a
16 In this regard, see also the following journal article: Reform ACJ, ‘Indefinite Imprisonment in South
Africa :The Difference between Life and Indefinite Imprisonment’
<https://uwcscholar.uwc.ac.za/bitstreams/b5c35279-ac08-4cab-b488-ebflfl2a2alb/download> accessed 15
August 2025.
prescribed minimum sentence, as is the case in this appeal. In the case of S v Pillay,
the court described substantial and compelling circumstances as follows:
"A court must consider all the circumstances of the case, including the many
factors traditionally taken into account by courts when sentencing offenders.
For circumstances to qualify as substantial and compelling, they need to be
exceptional in the sense that they are seldom encountered or rare , nor are
they limited to those which diminish the moral guilt of the offender." 17
[79] Henriques J sates further in Pillay that where a court is convinced - that after
considerations of all the factors – an injustice would be done if the minimum
sentence is imposed, then the court should characterise such factors that would lead
to an injustice and that would constitute substantial and compel ling circumstances to
deviate from the prescribed minimum sentence.
[80] Now, it can certainly be argued that a sentence that is designed to outlast the
life expectancy of an accused person is in itself an injustice and for that reason, such
a sentence wo uld qualify as substantial and compelling reason to deviate from the
prescribed minimum sentence.
[81] The question therefore in this case is this: If a person aged 58 is sentenced
with life imprisonment, (and in this instance, two sentences of life impri sonment that
will be served concurrently), can that be regarded as a sentence which will have the
net effect of a term of incarceration stretching beyond the anticipated life expectancy
of the accused. I do not think so. In fact, the legislative context wi thin which the
Department of Correctional Services can detain the accused is prescribed by
legislation and parole policies, and such a sentence does not mean the detention of
the accused for the rest of his life. Had it been otherwise, then all life senten ces
would have been inappropriate, since any life sentence would been for the natural
would have been inappropriate, since any life sentence would been for the natural
life of a sentenced person, irrespective of his age.
17 Emphasis added.
[82] The question of the age of a convicted person has received significant
attention in judgments in the past.
[83] Carnelley M and Hoctor S ,18 discuss the question of age and sentencing in
South African criminal law. They state as follows:
"It has been said that the rationale for the reduction in sentence is
compassion. It "evokes a note of compassion in consi dering the bleak
recompense of imprisonment in the afternoon of his years" (S v Heller supra
55C-D). Furthermore, old age can sometimes be seen as a second childhood,
a time when some elderly can become less responsible. Added hereto, they
are more sensiti ve to some forms of punishment, especially imprisonment
(Van der Merwe 5-26). Van der Merwe notes that "this factor really means that
the sensitivity of the offender to punishment is higher, that he would suffer
more given a specific quantum of punishment, and that imprisonment for a
certain period might really turn out to be life imprisonment" (5 -26A), although
the courts have warned that it should guard against misplaced pity (S v
Munyai supra 255i-j)."
[84] When all the above is taken into consideration, the question remains whether
this Court is of the opinion that there are substantial and compelling reasons to
deviate from the prescribed minimum sentence.
[85] Although the sentence imposed by the court below can certainly be seen as a
heavy sentence, it is in my view not a sentence in itself that leads to an injustice
within the context of the meaning in Pillay above, given the circumstances of the
case and given the ages of the victims at the date that the offences took place.
[86] I also fail to see that any of the factors which are relevant to the sentence
occur seldomly or are rare. On the contrary, it is unsettling, as was pointed out by the
court below, that this t ype of offense (where minor children are the victims) occurs
18 Advanced Age as a Mitigating Factor· (2008) 29 Obiter 268.
with surprising frequency in South Africa as a whole, but also within the jurisdiction of
the regional court below.
[87] In my view, therefore, the appeal against the sentence should also be
dismissed.
I consequently make the following order:
The appeal against both conviction and sentence is dismissed.
DIAMOND AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
I AGREE
KGANYAGO J
JUDGE OF THE HIGH OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel for the Appellant : DJ NONYANE
Instructed by: Legal Aid SA
Polokwane Office
Counsel for the respondent: M MOHALE
Instructed by: DPP
Polokwane Office
Date heard: 28th March 2025
Electronically circulated on: 27/08/2025