(1)
(2)
(3)
REPO
O FI
REV
In the matter between:
REPUBLIC OF SOUTH AFRICA
---;-----
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
THEMA MODIBE LAZARUS
and
THE STATE
JUDGMENT
NAUDE-ODENDAAL J:
CASE NO: A17/2024
APPELLANT
RESPONDENT
[1] The Appellant was convicted on a charge of Contravention of Section 3 of the
Criminal Law Ame ndm ent Act (Sexual Offences and Related Matters) 32 of 2007
2
after he tendered a plea of guilty in terms of Section 112(2) of the Criminal
Procedure Act, 51 of 1977.
[2] The Appellant was sentenced to life imprisonment on the 24
th
of November 2020 by
Magistrate Reynolds in the Mankweng Regional Court. The sentence of life
imprisonment was imposed after the court a quo found there were no substantial
and compelling circumstances justifying deviation from the prescribed minimum
sentence of life imprisonment. The Appellant was legally represented during the
trial. This appeal is against sentence only.
[3] The settled approach to be adopted by this court is that the sentencing task resorts
primarily within the scope of the trial court's discretion, and the court on appeal shall
not interfere with a sentence so imposed, save for if it is found that the sentence is
ominously inappropriate and or disproportionate to the severity of the offence or that
the trial court did not exercise its discretion judiciously. The Appea l court can only
interfere with the court a quo's sentence if the presiding officer had committed a
material m isdirection and when the sentence was imposed can be considered
shockingly inappropriate.
[4] In S v RO and Another 2000 (2) SACR 248 {SCA) at paragraph 30 that Hener JA
stated as follows:-
"sentencing is about achieving the right balance or in more high-flown terms,
proportionality. The elements at play are, the crime, the offender, the interest of
3
society with different nuance, prevention, retribution, rehabilitation, reformation and
deterrence. Invariably there are overlaps that render the process more unscientific,
even a proper exercise of the judicial function allows reasonable people to arrive in
different conclusions. "
[5] It was submitted on behalf of the Appellant that an effective sentence of Life
Imprisonment is disproportionate, inappropriate and unjust in the circumstances of
the present case. The Appellant submitted that the court a quo erred in finding that
there were no substantial and compelling circumstances warranting deviation from
the prescribed minimum sentence of life imprisonment.
[6] The Appellant further submitted that the Magistrate erred by taking into account the
time it took for the Appellant to plead guilty and considering that as minimizing the
weight of the Appellant's remorse. The court's obseNation failed to take into
account that when the Appellant pleaded guilty it was the first time that the court was
able to deal with the matter. It was further submitted that the Magistrate misdirected
himself by taking into account the Public Prosecutor's submission on the effect of the
offence on the Complainant as against the admitted pre-sentence report. The pre
sentence report states that the complainant was coping and passed grades 6 and 7
after the incident. It is submitted that the omission of this fact from the consideration
of factors for the determination of whether there are substantial and compelling
circumstances is a material irregularity warranting interference by the appeal court.
4
[7] The Appellant further submitted that the court a quo failed to consider the reality that
although any form of rape is very serious and deplorable, some rapes are committed
in a very vicious and despicable manner and therefore deserving of the harshest
possible sentence, whilst other are not. The rape committed by the Appellant did not
deserve the harshest sentence as was imposed by the court a qua.
[8] The Appellant referred this court to S v Nkomo 2007 (2) SACR 198 (SCA) wherein
Lewis JA held at para 21 , that:-
"That said, I do not believe that this crime should attract the heaviest sentence
permitted by our law, life imprisonment. I recognize that it may be difficult to imagine
a rape under much worse conditions. But it is possible, and I consider the prospect
of rehabilitation and the fact that the Appellant is a first offender must be regarded as
substantial and compelling circumstances justifying a lesser sentence. What must
be borne in mind as well, is the statement of this court in Abrahams (cited in the
passage from Mahomotsa above) that life imprisonment should be imposed only
where the case is 'devoid of any substantial factors compelling the conclusion that
such a sentence is inappropriate and unjust. "
[9] It was submitted that the Magistrate misdirected himself by not taking into account
the fact that the Complainant was sexually active as reflected in the medical report.
The Complainant was medically examined a few hours after the incident yet no fresh
injuries, bleeding, swelling or inflammation but only scars were observed. The scars
and the "STI" were obviously not a result of the rape by the Appellant as the scars
5
were clearly healing/healed tears suffered prior to the rape and the sexually
transmitted infection couldn't have resulted from the rape as the Appellant used a
condom. More specifically, the Complainant admitted to previous consensual
intercourse as per paragraph 'D1 O' of Exhibit "C".
[1 O] It was submitted by the Appellant that the court a quo erred in not taking into account
the abusive environment under which the Appellant was raise. The pre-sentence
report alludes to the Appellant's mother escaping from the family home, leaving the
Appellant and his siblings behind as a result of the persistent abuse by the
Appellant's father. Although there is no evidence of direct abuse of the Appellant by
his father, the pre-sentence report states that the Appellant's "circle of courage is
broken and as a result he easily makes the w rong decision that impacted negatively
on his life."
[11] In conclusion it was submitted by the Appellant that the court a qua erred by not
finding that the cumulative weight of the following factors constituted substantial and
compelling circumstances that justified deviation from the prescribed minimum
sentence of life and the imposition of a lesser sentence:-
11.1 The Appellant was a first offender at the age of 49 years;
11.2 The Appellant's level of education - he couldn't complete Grade 8.
11.3 The Appellant pleaded guilty to the charge and expressed remorse;
11.4 The Appellant did not inflict grievous bodily harm on the Complainant.
6
11.5 The Appellant's upbringing in an abusive environment made him prone to
making mistakes as per the pre-sentence report.
11.6 The Complainant was sexually active prior to the rape.
11. 7 The Complainant did not suffer lasting emotional trauma. The victim impact
report admitted as Exhibit "F" states that she had emotionally healed at the
time of sentencing. She had progressed to Grade 8 after the incident without
any learning difficulties.
[12] In S v Pillay 1977 (4) SA 531 (A) at 535E-F Trollip JA remarked:-
"Now the word "misdirection" in the present context simply means an error
committed by the Court in determining or applying the facts for assessing the
appropriate sentence. As the essential inquiry in an appeal against sentence,
however, is not w hether the sentence was right or wrong, but whether the Court in
imposing it exercised its discretion properly and judicially, a mere misdirection is not
by itself sufficient to entitle the Appeal Court to interfere with the sentence; it must be
of such a nature, degree, or seriousness that is shows, directly or inferentially, that
the Court did not exercise its discretion at all or exercised it improperly or
unreasonably. Such a misdirection is usually and conveniently termed one that
vitiates the Court's decision on sentence."
7
[13] The Supreme Court of Appeal in Nkabinde and Others v S [2017] ZASCA 75;2017
(2) SACR 431 (SCA)at para 51 held that 'sentencing lies in the discretion of the trial
court.
[14] It is trite law that a court of appeal will not interfere with an imposed sentence of a
lower court unless the discretion of the lower court was not judicially exercised, or if
there was a severe irregularity or misdirection by the trial court, or if the sentence
was so severe that no reasonable court would impose it, or if the sentence is
shockingly inappropriate, or when there is a striking disparity between the sentence
passed by the lower court and that which the Court of Appeal would have imposed.
See S v De Jager 1965 (2) SA 616 (A) and S v Pieters 1987 (5) SA 717.
[15] In S v Obisi 2005 (2) SACR 350 WLD, S v Rabie 1975 (4) SA 855 (A) at 857 D-E
and S v De Oliveira 1993 (2) SACR 59 A at 667, it was held that the test on appeal
is not whether or not the court sitting on appeal would have imposed another form of
punishment, but rather whether the trial court exercised its discretion properly and
reasonably when imposing sentence. This court is mindful of the decision in S v De
Jager 1965 (2) SA 616 (A) at 628 where the discretion of the appeal court was
described as not having a general discretion to ameliorate the sentences of trial
courts but that it is the trial court that has such discretion.
[16] In the absence of a material misdirection by the trial court, an appellate court cannot
approach the question of sentence as if it were the trial court and then substitute the
8
trial court's sentence simply because it prefers to. The same would apply to an
accused that cannot choose the sentencing regime that he prefers.
[17] In the present matter, when imposing the sentence of life imprisonment, the trial
court had regard to all the mitigating factors placed on record on behalf of the
Appellant, as well as the aggravating factors. There is no evidence to show that the
Appellant demonstrated remorse at any given time. The Appellant was in a position
of trust which he abused. He did not stop even when the Complainant was crying.
She was fearful and threatened by the Appellant, she still has nightmares about the
Appellant coming to kill her or her aunt. The Magistrate took into account the
prevalence of the offence in the region and also the gravity of the crime of rape,
especially rape of minor children which inflicts terrible and horrific suffering and
outrage on the victim and her family.
[18] In determination of an appropriate sentence in the present matter, the court a quo
weighed and balanced the mitigating and aggravating factors cumulatively. After
considering the factors required to be taken into account in the imposition of
sentence, including the Appellant's personal circumstances and the fact that the
Appellant was about 34 years older than the victim, he was in a position of trust with
the child and threatened her with a knife, the court a quo came to the conclusion,
and correctly so, that a sentence of life imprisonment will be a suitable sentence.
I
f
f
! ' ...
t
I I
T •
i.
1-
•
!
I
I
.
i"
!
t.
I· '
j •.
i.;
I•
' '
9..
11-9] Irr this. court's view, ,be court-~ qu6 did. not misdirected it$elf :and did not exer.cise its
oisoretlon. improperJy-in sentElrtcin~ ·the Appellant to.1ife imp"riso·n'rne·nt. The a·pi,e.~1'
against sentence therefore also stands to fail .
[20] Accol'dinglyi thi~ courttherefore m~k~s 11Je tollo.wing or:der:-
1. The app·e.~ c!Qalnst sente.n~ is dismissed.·
LIMPOP ·o .DIVISION;
POLOKWANE
A. VAN.WVK
OF THE HIGH COURT,
LIMPOPO DIVISlO(II,
PO .LQKWAN~
APPEARANCES:
HEARD ON:
JUDGMENT DELIVERED ON:
For the Appellant:
Instructed by:
For the Respondent:
Instructed by:
10
6 JUNE 2025
19 SEPTEMBER 2025
Mr. M .C . Mogashoa
Mogashoa MC Attorneys
Mankweng
Mogashoamawela2@gmail .com
Adv. T.E. Mabapa
The Director of Public Prosecutions
Polokwane
TEmabapa@npa .gov.za