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2025
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[2025] ZANCHC 94
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Dickson v S (CA & R 09/2024) [2025] ZANCHC 94 (19 September 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
Number: CA & R 09/2024
In
the matter between:
STEFAANS
DICKSON
Appellant
and
THE
STATE
Respondent
Neutral
citation:
Dickson v The
State
(CA&R
09/2024)
19
September 2025
Coram:
Williams J et
Stanton
J
Heard:
11 August 2025.
Delivered:
19
September
2025.
Summary:
Appeal against conviction and
sentence in terms of
s 309
of the
Criminal Procedure Act 51 of
1977
– Conviction of rape of an 11-year-old boy child and a
sentence of life imprisonment –
Conflicting
versions of State and defence
in identification of appellant –
Approach to the evidence of child witnesses – Cautionary rules
properly applied –
Non-existence of substantial and compelling
circumstances justifying deviation from the prescribed minimum
sentence – Appeal
against conviction and sentence dismissed.
ORDER
1.
The appeal against the conviction and sentence is dismissed
.
JUDGMENT
Stanton J
Introduction:
[1]
The appellant was charged with one count of contravening
s 3
, read
with s 1, 56 (1), 57, 58, 59, 60 and 61 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act
32 of 2007
(rape); read with s 51 (1) and schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (“the CLAA”),
and further read
with s 120 (4) of the Children’s Act 38 of 2005. He is alleged
to have unlawfully and intentionally committed
an act of anal sexual
penetration with his penis with the complainant (GK), an 11-year-old
boy, on 12 January 2019 at Platfontein
in the Regional Division of
the Northern Cape.
[2]
The appellant, who was legally represented at the trial, pleaded not
guilty to the charge proffered
against him. He was convicted on 05
August 2024; and on 12 December 2024, he was sentenced to life
imprisonment.
[3]
This appeal came before us in terms of
s 309
of the
Criminal
Procedure Act 51 of 1977
, as the appellant has an automatic right of
appeal to the Full Bench of this Court against his conviction and the
resultant sentence
of life imprisonment.
The grounds of appeal:
[4]
According to the appellant’s notice of appeal against the
conviction and sentence, the trial
court erred in:
4.1
Finding that GK and the eyewitness, Mrs. A Khungula, GK’s
grandmother, were credible and reliable
as they deviated in their
oral evidence from their written statements; and
4.2
The sentence of life imprisonment is shockingly inappropriate.
The evidence for the
State:
[5]
It is not necessary to traverse the evidence in granular detail. A
brief background would suffice.
[6]
GK testified that he was 11 years old at the time of the incident and
that he knew the appellant
as he is a family member. According to his
evidence, the appellant sent him to collect a lighter from his
grandmother on the evening
of 12 January 2019, which he took to the
appellant’s residence. On his arrival, GK stood outside, and he
entered the residence
when the appellant asked him to fetch an item
from inside the house. The appellant grabbed him and pushed him to
lie face down
on his stomach on the bed, whereafter the appellant got
on top of his back and opened his own trousers. He also removed GK’s
trousers, choked him, and forcefully penetrated him anally. GK was
crying, and his grandmother arrived with her torch, and the
appellant
ran outside. GK put his underpants and trousers back on. His uncle,
Mr. D Katumbela, called the police, and they took
him to the
hospital, where he was given medication and was examined by a doctor.
According to him, his clothing was not collected
at the hospital, and
he returned home with the underwear and pants he had on earlier.
[7]
When cross-examined, GK confirmed the anal penetration by the
appellant. He, however, added that
his grandmother first knocked on
the window and thereafter she kicked in the door; the appellant
jumped up and ran outside. He
confirmed that he identified the
appellant to his grandmother, his uncle and the police. He conceded
that his grandmother was correct
that the appellant was at his
grandmother’s house when he asked for the lighter, but denied
the appellant’s version
that he and the appellant’s
younger brothers swapped their clothing.
[8]
When cross-examined, GK, despite testifying
in camera
and with
the assistance of an intermediary, kept quiet on several occasions
when questioned and on various occasions did not answer
questions.
The trial court also had to intervene on numerous occasions. When
confronted with the discrepancies between his written
statement and
his oral evidence, he explained that his written statement was not
read back to him before he signed it, and he mainly
responded that he
could not remember why his statement contains more details than his
oral evidence (i.e. that the appellant threatened
to choke him to
death; and he entered the appellant’s house when the appellant
asked him to go and look for something in
the room). He changed his
evidence in the following manner when he was cross-examined:
(a)
He could not remember whether his grandmother was at the window;
(b)
The appellant ran outside before his grandmother entered
the room; and
(c)
He did not scream as he was scared and being
choked. When confronted with the appellant’s version, he
persisted that the
appellant’s version is untrue and that the
appellant had raped him on the evening in question. He also denied
that his grandmother
collected clothes from the appellant’s
home the following morning.
[9]
Mrs. A Khungula testified that the appellant is her sister’s
grandson. On 12 January 2019,
GK collected her lighter as the
appellant requested to borrow same. She went looking for him and,
after hearing his screams, coming
from the appellant’s house,
she kicked the door open, and she saw GK pulling up his pants. The
appellant stood behind GK,
and his clothes were under his knees. The
appellant passed her and ran outside. She saw blood on GK’s
buttocks, whereafter
she asked Mr. D Katumbela for assistance. Mr.
Katumbela phoned the police, who took them to the hospital. When
cross-examined as
to why she did not refer to the appellant’s
name in her statement, she explained that his name is difficult to
pronounce.
She repeated that she saw the appellant running out while
he was pulling up his trousers and that she found GK on the bed with
his knees on the floor. She denied the appellant’s version that
she collected clothes from his house the following morning.
She added
that the doctor took some of GK’s clothes, but he was still
wearing the same underwear when they went home.
[10]
Mr. D Katumbela corroborated Mrs. Khungula’s evidence
pertaining to his involvement in the matter.
He testified that he
knows the appellant as a brother and that he saw a mark on GK’s
neck and a tear on his anus. He also
noticed semen on the anus.
[11]
According to the J88 medical report and the evidence of Dr. F Mokoya,
who examined GK on 13 January 2019,
GK sustained fresh tears at the
six o’clock and 11 o’clock position of the orifices in
the anus, which he opined is
indicative of forceful anal penetration
with a blunt object. In addition, he observed marks on GK’s
neck that are consistent
with finger pressure, resembling
strangulation. He noted that GK appeared to be severely traumatised.
He collected swabs from GK’s
anus and perineum and secured GK’s
underwear, which he placed in an evidence bag that he sealed and
handed over to Warrant
Officer Antonie.
[12]
Warrant Officer Antonie testified that Dr. Mokoya sealed the evidence
in her presence and that she handed
same, together with the
appellant’s buccal swab collected by Constable Tsiane, to
Sergeant Van Rensburg. Warrant Officer
Antonie delivered the sealed
evidence bags to Warrant Officer Lotter at the Forensic Laboratory,
Plattekloof, Cape Town.
[13]
Warrant Officer Slabbert, a forensic analyst, testified that she
received the sealed evidence bag on 19 January
2021. She confirmed
that the appellant’s DNA reference sample is identical to the
DNA reference sample found in GK’s
underwear, but that unknown
DNA was obtained from the swab of GK’s anus. When confronted
with the appellant’s version
that he wiped his penis with the
underwear after he had sexual intercourse with his girlfriend, she
stated that it is possible
to transfer DNA in that manner, but based
on the positioning of the stains, one in the middle at the back, and
one at the right,
higher up on the outside of the underpants, it is
more probable that the deposit was not left by wiping.
The evidence for the
appellant:
[14]
The version of the appellant was a bare denial of any of the evidence
tendered by the State. He denied that
he was at the house, depicted
in the photo album, on 12 January 2019, and insisted that he was at
his uncle’s house with
his mother and siblings. According to
him, he had sexual intercourse with his girlfriend, Tango or Tube,
whereafter he removed
the condom and semen using his hand and wiped
his penis with a cloth that he then discarded on the floor. Mrs.
Khungula and GK
arrived at his mother’s house at approximately
01h25, and Mrs. Khungula requested him to hand over GK’s
clothes. His
girlfriend was asleep on his bed in the room. Mrs.
Khungula took some clothes and left. When confronted with the
evidence that
his DNA was found on GK’s underwear, he testified
that he and his girlfriend had sexual intercourse, and he thinks that
he
used GK’s underwear to wipe himself. When cross-examined, he
changed his evidence and testified that Mr. Khungula collected
the
clothes after 5 o’clock in the morning. He confirmed that he
never informed the police about his girlfriend. He placed
the
identity of the perpetrator in dispute because unknown DNA was found
in GK’s anus; and he denied that he had raped GK.
[15]
Ms. A Dickson, the appellant’s sister, testified that she
resided in the house depicted on the photographs
until December 2018,
whereafter she relocated to a farm in the Free State; and returned to
Platfontein in April 2019 due to her
mother’s illness. When
cross-examined, she testified that she does not know whether the
appellant had access to the house,
but conceded that someone must
have had access to the house as the photograph depicted that the door
was open.
[16]
This constitutes the factual matrix
of the evidence before the trial court.
Ad
appeal against conviction:
The test on appeal
against conviction:
[17]
In
Rex
v
Dhlumayo
and Another,
[1]
the
Appellate Division ruled that the ambit of interference in factual
and credibility findings by the trial court is constrained
on appeal
due to the reasons that, unlike the trial court, the appeal court has
no live experience of the actual trial court. The
court held that it
will not disturb the factual findings of a trial court unless the
latter had committed a misdirection.
[2]
We must therefore be satisfied that the ground(s) for appeal exists.
[18]
The appeal against the conviction principally turns on the
reliability of the evidence of the state witnesses
about the identity
of the perpetrator, as contrasted against the evidence of the
appellant.
It
is clear from the record that there are two conflicting versions on
how the events unfolded.
[19]
It is trite that the State bears the onus of establishing the guilt
of an accused beyond a reasonable doubt.
The
corollary is that if the accused’s version is reasonably
possibly true, the accused is entitled to an acquittal.
[3]
The
Supreme Court of Appeal in the recent judgment of
Sekoala
v The State
[4]
confirmed that:
‘
.
. . the accused’s version cannot be rejected solely on the
basis that it is improbable, but only once the trial court has
found
on credible evidence that the accused’s explanation is false
beyond a reasonable doubt. . . . It is also trite that
in an appeal,
the accused’s conviction can only be sustained after
consideration of all the evidence including the accused’s
version of events.’
[20]
That being said, the credibility findings and findings of fact of the
trial court cannot be disturbed unless
the recorded evidence shows
them to be clearly wrong.
[5]
The
Supreme Court of Appeal in
S
v Hadebe and Others,
[6]
with reference to
Moshephi
and Others v R
,
[7]
confirmed
the approach to the assessment of evidence as follows:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the Appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual parts of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.’
[21]
Section
208
of the
Criminal Procedure Act provides
that a court is entitled
to convict an accused person on the evidence of a single witness. It
is judicial practice that such evidence,
however, should be treated
with the utmost care. De Villiers JP in
R
v Mokoena
,
[8]
expressed the approach as follows:
‘
Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
[the section], but in my opinion that section should only be relied
on where the evidence of a single witness is clear and satisfactory
in every material respect.’
[22]
The exercise of the cautionary rule must, however, not be allowed to
displace the exercise of common sense.
[9]
In
S
v Jones,
[10]
it
was held that the cautionary rule requires that a court must be aware
of factors which render uncritical acceptance of evidence
hazardous.
The cautionary rule does not require that evidence must be free of
all criticism, it requires only that evidence must
either be
substantially satisfactory in relation to material aspects or that it
must be corroborated.
[11]
Even
though a single witness' evidence might be criticised in some
respects, it still does not exclude the fact that a court might
nonetheless find the witness credible.
[12]
[23]
In
S
v Mafaladiso en Andere,
[13]
the
Supreme Court of Appeal held that where there are material
differences between the witness’s evidence and their prior
statement, the final task for the judge is to weigh up the previous
statement against
viva
voce
evidence,
to
consider
all
the evidence and to decide whether it was
reliable
or not and whether the truth has been told,
despite
any shortcomings. This means that the court is enjoined to consider
the totality of the evidence to ascertain if the truth
has been
told.
[14]
[24]
Regarding the ground that the trial court erred in finding that GK
and Mrs. Khungula were credible and
reliable although they
deviated in their evidence from their written statements; a useful
guidance may be sought in
S
v Mafaladiso
(
supra
),
where the headnote (in English) reads:
‘
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 oneself 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 what 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 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 not
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 the rest of the
witness' evidence, amongst other factors,
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 evidence and to decide whether it is reliable or
not and to decide whether the truth has been told,
despite any
shortcomings.’
[25]
In
Maila
v S
[15]
(“Maila”),
Mocumie JA re-stated the principles applicable to the approach of the
evidence of a single child witness as follows:
‘
The
evidence in this case was based on the evidence of a single witness,
the complainant. Apart from being a single witness to the
act of
rape, the complainant was a girl child, aged 9 years at the time of
the incident. For many years, the evidence of a child
witness,
particularly as a single witness, was treated with caution. This was
because cases prior to the advent of the Constitution
(which provides
in s 9 for equality of all before the law) stated
inter
alia
that
a child witness could be manipulated to falsely implicate a
particular person as the perpetrator (thereby substituting the
accused person for the real perpetrator). To ensure that the evidence
of a child witness can be relied upon as provided in s 208
of the
CPA, this Court stated in
Woji
v Santam Insurance Co Ltd
[16]
(“Woji”)
,
that a court must be satisfied that their evidence is trustworthy. It
noted factors which courts must consider to conclude that
the
evidence is trustworthy, without creating a closed list. In this
regard, the court held:
Trustworthiness
.
. . depends on factors such as
the
child’s power of observation
, his
power of recollection, and his power of narration on the specific
matter to be testified. . . . His capacity of observation
will depend
on whether he appears “intelligent enough to observe”.
Whether he has the
capacity of
recollection
will depend again on
whether he has
sufficient years of
discretion
“
to remember what
occurs
”
while the
capacity
of narration or communication
raises
the question whether the child has the “
capacity
to understand the questions put, and to frame and express intelligent
answers
”
.’
[26]
The Supreme Court of Appeal has, since
Woji
, cautioned against
what is now commonly known as the double cautionary rule. It has
stated that:
‘
.
. . the double cautionary rule should not be used to disadvantage a
child witness on that basis alone. The evidence of a child
witness
must be considered as a whole, taking into account all the evidence.
This means that, at the end of the case, the single
child witness’s
evidence, tested through (in most cases, rigorous) cross-examination,
should be “trustworthy”.
This is dependent on whether the
child witness could narrate their story
and communicate appropriately, could
answer questions posed and then frame and express intelligent
answers. Furthermore, the child
witness’s evidence must not
have changed dramatically, the essence of their allegations should
still stand. Once this is
the case, a court is bound to accept the
evidence as satisfactory in all respects; having considered it
against that of an accused
person. “Satisfactory in all
respects” should not mean the evidence line-by-line. But, in
the overall scheme of things,
accepting the discrepancies that may
have crept in, the evidence can be relied upon to decide upon the
guilt of an accused person.
What this Court in
S
v Hadebe
calls the necessity to step
back
a
pace (after a detailed and critical examination of each and every
component in the body of evidence), lest one may fail to see
the wood
for the trees. This position has been crystallised by the Legislature
in
s 60
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, which provides that:
“
Notwithstanding
any other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence”.’
[17]
[27]
In
Maila
,
[18]
Mocumie JA, further re-stated the approach to alibi defence as
follows:
‘
It
is trite that an accused person is entitled to raise any defence,
including that of an alibi – that at the time of the
commission
of the crime, they were not at the scene of the crime but somewhere
else. They can also lead evidence of a witness(es)
to corroborate
them on their whereabouts at the critical time. Nevertheless, it is
trite that an accused person who raises the
defence is under no duty
(as opposed to that of the State) to prove his defence. If the
defence is reasonably possibly true, they
are entitled to be
discharged and found not guilty.
The only responsibility
an accused person bears with regards to their alibi defence is to
raise the defence at the earliest opportunity.
The reason is simple:
to give the police and the prosecution the opportunity to investigate
the defence and bring it to the attention
of the court. In
appropriate cases, in practice, the prosecution can even withdraw the
charge should the alibi defence, after investigations,
prove to be
solid.’
[28]
The alibi defence has received the attention of our courts over the
years, in particular that of the Constitutional
Court in
S
v Thebus and Another
,
[19]
where it is stated:
‘
.
. . [A]
failure
to disclose an alibi timeously has consequences in the evaluation of
the evidence as a whole [and] is consistent with the
views expressed
by Tindall JA in
R
v Mashelele
.
[20]
After stating that an adverse inference of guilt cannot be drawn from
the failure to disclose an alibi timeously, Tindall JA goes
on to
say:
“
But
where the presiding Judge merely tells the jury that, as the accused
did not disclose his explanation or the
alibi
at the preparatory examination, the prosecution has not had an
opportunity of testing its truth and that therefore it may fairly
be
said that
the defence relied on has not the
same weight or the same persuasive force as it would have had if it
had been disclosed before
and had not been met by evidence specially
directed towards destroying the particular defence, this does not
constitute a misdirection
”
.’
Evaluation
of the evidence:
[29]
GK was a single child witness regarding the sexual penetration.
[30]
Mr. Biyela, on behalf of the
appellant, argued that GK’s evidence does not meet the required
standard as his evidence was
not clear and satisfactory in all
material aspects. In support of this submission, he stated that GK,
when cross-examined, kept
quiet without answering questions, and the
court had to intervene on numerous occasions. He added that GK and
his grandmother’s
evidence is contradictory in that Mrs.
Khungula testified that she heard GK’s screams, which led her
to the house of the
appellant. GK, however, testified that he did
not, or could not, scream. Mr. Biyela furthermore contended that
Mrs. Khungula’s
evidence of identification is unreliable
as she has poor eyesight, and the incident occurred at night. In the
final instance, he
submitted that Mr. Katumbela’s evidence
does not corroborate Mrs. Khungula’s evidence, as she testified
that Mr.
Katumbela was at the door of the appellant’s house
when she came out of the house, but he testified that he was not
there
and was woken at his house.
[31]
On a perusal of the record, it is evident that the trial court was
alive to the statutory provision and approached
GK’s evidence
with caution. In addition, the trial court took note of the
contradictions between GK’s and
Mrs.
Khungula’s evidence.
GK’s demeanour in court was also scrutinised by the trial court
which noted that it is crucial to take GK’s age at
the time of
the rape and his educational level into consideration. The
discrepancies in GK’s evidence were evaluated, and
the trial
court found corroboration for his version in the evidence of
Dr. Mokoya. The trial court was satisfied that GK relayed
his
evidence in a chronological manner. It found that, despite the long
silences and repeated questions when he testified, GK’s
evidence remained consistent, he was capable of proper observation,
and he recollected the material events correctly. The record
reflects
that GK provided a detailed account of how he was positioned on the
bed, raped and strangled by the appellant.
[32]
To my mind, the contradictions in GK’s oral evidence and
between him and Mrs. Khungula are of
no consequence. GK’s
evidence that the appellant, who is well known to him, raped him was
unequivocal and materially satisfactory.
I also agree with the trial
court’s assessment that Mrs. Khungula accurately identified the
appellant as she used her torch.
I am therefore satisfied that the
trial court did not err in accepting the evidence of GK and Mrs.
Khungula.
[33]
Furthermore, the J88 medical report and the evidence of Dr. F Mokoya
corroborate GK’s evidence that
he was raped. In addition, the
appellant’s DNA was found on GK’s underwear, confirming
that the appellant raped him.
The evidence that an “unknown DNA
sample” was collected from GK’s anus is insignificant in
view of Warrant Officer
Slabbert’s second report that the
“unknown DNA sample” was matched to GK.
[34] I
agree with the trial court’s assessment that the evidence of
GK, Mrs. Khungula and Mr. Katumbela
that GK returned home with his
underwear was a mere mistake. Dr. Mokoyo, Warrant Officer Antonie and
other witnesses called by
the State to prove the chain of custody,
provide corroborated and objective proof that GK’s underwear
was collected at the
hospital and submitted for forensic analysis.
[35]
The version of the appellant, however, is not bolstered by the DNA
evidence or any alibi evidence. It is
clear that he had no intention
of calling his girlfriend to testify. As in
Maila
,
the identity of his alibi
witness was not
revealed until the trial had commenced and extremely far into it.
None of the witnesses were confronted with the
alibi
evidence,
save for the broad statement that the appellant had sexual
intercourse with his girlfriend and that she was still sleeping
in
his bed on Mrs. Khungula’s arrival at his house. Tellingly, the
appellant provided no plea explanation in which he could
have
disclosed that the basis of his defence was predicated on alibi
evidence. In the final instance, Warrant Officer Slabbert’s
evidence that the DNA transfer was in all probability not caused by
the appellant wiping his penis does not support the appellant’s
version.
[36]
The evidence, when considered as a whole, taking proper account of
inherent strengths and weaknesses, and
taking into consideration
probabilities and improbabilities on both sides; weighs so heavily in
favour of the State that it excludes
any reasonable doubt about the
appellant’s guilt.
[37]
The finding of the trial court
that the
guilt of the appellant was proven beyond a reasonable doubt cannot be
faulted. The appeal against the conviction of the
appellant must
accordingly fail.
Ad appeal against
the sentence:
Applicable law:
[38]
The conviction
in casu
attracts a sentence of life imprisonment in that
s 51
(1) of the
CLAA stipulates that a high court or regional court must, if it has
convicted a person of rape
where the victim is a person under
the age of 18 years, sentence the person to life imprisonment, unless
substantial and compelling
circumstances exist which justify the
imposition of a lesser sentence.
[39] It
is trite that sentencing is primarily in the discretion of the trial
court. The question to be answered
is not whether the sentences were
right or wrong, but whether the trial court, imposing the sentence,
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 it 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
.
[21]
Only when there is an irregularity or where the trial court made a
grave error or where the sentence is shocking and inappropriate,
will
a court of appeal intervene.
[22]
[40]
The aforesaid approach was endorsed by the Supreme Court of Appeal in
S v
Hewitt
[23]
in the following terms:
‘
It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appellate court may
not
interfere with this discretion merely because it would have imposed a
different sentence. In other words, it is not enough
to conclude that
its own choice of penalty would have been
an
appropriate penalty. Something more is required; it must conclude
that its own choice of penalty is the appropriate penalty and
that
the penalty chosen by the trial court is not. Thus, the appellate
court must be satisfied that the trial court committed a
misdirection
of such a nature, degree and seriousness that shows that it did not
exercise its sentencing discretion at all or exercised
it improperly
or unreasonably when imposing it. So, interference is justified only
where there exists a “striking”
or “startling”
or “disturbing” disparity between the trial court's
sentence and that which the appellate
court would have imposed. And
in such instances the trial court's discretion is regarded as having
been unreasonably exercised.’
(Footnotes omitted).
[41]
Where, as here, the trial court imposed the sentence prescribed by
the CLAA, the approach on appeal is whether
the facts that were
considered by the sentencing court are indeed substantial and
compelling or not. Bosielo JA, in the matter
of
S
v PB
[24]
,
reaffirmed
the correct approach by a court on appeal against a minimum sentence,
as follows: -
‘
.
. . Can the appellate court interfere with such a sentence imposed by
the trial court 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
the Act should, in my view, be different to an approach to other
sentences imposed under the 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.’
[42]
The correct approach to follow when considering the provisions of the
CLAA, in particular whether substantial
and compelling circumstances
exist, was set out in
S
v Malgas
[25]
as follows:
‘
. . . It was of
course open to the High Courts even prior to the enactment of the
amending legislation to impose life imprisonment
in the free exercise
of their discretion. The very fact that this amending legislation has
been enacted indicates that Parliament
was not content with that and
that it was no longer to be “business as usual” when
sentencing for the commission of
the specified crimes.
In what respects was it
no longer to be business as usual? First, a court was not to be given
a clean slate on which to inscribe
whatever sentence it thought fit.
Instead, it was required to approach that question conscious of the
fact that the Legislature
has ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which
should
ordinarily
be imposed for the commission of the listed
crimes in the specified circumstances. In short, the Legislature
aimed at ensuring a
severe, standardised, and consistent response
from the courts to the commission of such crimes unless there were,
and could be
seen to be, truly convincing reasons for a different
response. When considering sentence the emphasis was to be shifted to
the
objective gravity of the type of crime and the public's need for
effective sanctions against it. But that did not mean that all
other
considerations were to be ignored. The residual discretion to decline
to pass the sentence which the commission of such an
offence would
ordinarily attract plainly was given to the courts in recognition of
the easily foreseeable injustices which could
result from obliging
them to pass the specified sentences come what may.
Secondly, a court was
required to spell out and enter on the record the circumstances which
it considered justified a refusal to
impose the specified sentence.
As was observed in
Flannery v Halifax Estate Agencies Ltd
by
the Court of Appeal, “a requirement to give reasons
concentrates the mind, if it is fulfilled the resulting decision is
much more likely to be soundly based – than if it is not”.
Moreover, those circumstances had to be substantial and
compelling.
Whatever nuances of meaning may lurk in those words, their central
thrust seems obvious. 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
to 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. Nor were
marginal differences in the personal circumstances or degrees of
participation of co-offenders which, but
for the provisions, might
have justified differentiating between them. But for the rest I can
see no warrant for deducing that
the legislature intended a court to
exclude from consideration,
ante omnia
as it were, any or all
of the many factors traditionally and rightly taken into account by
courts when sentencing offenders. The
use of the epithets
“substantial” and “compelling” cannot be
interpreted as excluding
even from consideration
any of those
factors. They are neither notionally nor linguistically appropriate
to achieve that. What they are apt to convey, is
that the ultimate
cumulative
impact
of those circumstances must be such as to
justify
a departure. It is axiomatic in the normal process of
sentencing that, while each of a number of mitigating factors when
viewed
in isolation may have little persuasive force, their combined
impact may be considerable. Parliament cannot have been ignorant of
that. There is no indication in the language it has employed that it
intended the enquiry into the possible existence of substantial
and
compelling circumstances justifying a departure, to proceed in a
radically different way, namely, by eliminating at the very
threshold
of the enquiry one or more factors traditionally and rightly taken
into consideration when assessing sentence. None of
those factors
have been singled out either expressly or impliedly for exclusion
from consideration.’
[43]
In
S
v Vilakazi
[26]
the Supreme Court of Appeal observed as follows:
‘
The
personal circumstances of the appellant, so far as they are disclosed
in the evidence, have been set out earlier.
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of “flimsy”
grounds that Malgas said should be avoided
.
But they are nonetheless relevant in another respect. A material
consideration is whether the accused can be expected to offend
again.
While that can never be confidently predicted his or her
circumstances might assist in making at least some assessment.
In
this case the appellant had reached the age of 30 without any serious
brushes with the law. His stable employment and apparently
stable
family circumstances are not indicative of an inherently lawless
character.’ (Emphasis added).
Evaluation:
[44]
The appellant advanced the following personal circumstances in
mitigation: -
44.1 He
was 26 years old at the time of the commission of the offence;
44.2 He
is single and has no children;
44.3 He
was employed at a farm and earned a monthly salary of R4 300, but
returned to Platfontein to assist his
family as his mother and
grandmother were ill. He was not their primary caregiver;
44.4 He
only attended school until standard 3; and
44.5 He
spent four years and nine months in custody awaiting the finalisation
of his trial.
[45]
The appellant is, however, not a first offender, as he has previous
convictions for rape and murder.
[46]
Mr. Biyela contended that this Court must have regard to the long
period the appellant was in custody prior
to the finalisation of the
trial, as it was an exceptional delay, not necessarily caused by only
the appellant.
[47]
The record reflects that:
(a)
the outstanding DNA analysis;
(b)
the
difficulty in procuring a !Xhu interpreter and intermediary;
(c)
Covid restrictions;
(d)
the appellant’s physical well-being; and
(e)
the appellant changing legal representation
inter
alia
resulted in various postponements
before the trial could commence.
[48]
Even if there were delays in the finalisation of the trial,
the
Supreme Court of Appeal in
S
v
Ngcobo
[27]
made
the following crucial observations in this regard, thus:
‘
Typically,
some delays seem to have been at the instance of the state and others
at the instance of the appellant. Primarily the
appellant remained in
custody because his three bail applications failed. Even if there
were delays, this court said in
Radebe
:
“
the
test was not whether on its own that period of detention constituted
a substantial and compelling circumstance,
but
whether the effective sentence proposed was proportionate to the
crime or crimes committed: whether the sentence in all the
circumstances, including the period spent in detention prior to
conviction and sentencing, was a just one.”
Furthermore:
“
the
period in detention pre-sentencing is but one of the factors that
should be taken into account in determining whether the effective
period of imprisonment to be imposed is justified.”
In short, a
pre-conviction period of imprisonment is not, on its own, a
substantial and compelling circumstance; it is merely a
factor in
determining whether the sentence imposed is disproportionate or
unjust.’
[49]
Regarding
the seriousness of the offence of rape, of which the appellant has
been convicted and sentenced,
the
Supreme Court of Appeal in
S
v Hewitt
[28]
had
the following to say:
‘
.
. . Our courts have, in countless cases of this nature, consistently
expressed society's abhorrence of sexual offences, which
once earned
South Africa the shameful title of being the rape capital of the
world, and the devastating effect they have on victims
and society
itself. The courts have aptly described rape as “a horrifying
crime” and “a cruel and selfish act
in which the
aggressor treats with utter contempt the dignity and feelings of the
victim”, and as “a very serious offence”
which is
“a humiliating, degrading and brutal invasion of the privacy,
the dignity and the person of the victim”. Rape
of a child,
usually committed by those who believe they can get away with it and
often do, is far more horrendous. As was held
in
S
v Jansen
, it is “an appalling and
perverse abuse of male power” which “strikes a blow at
the very core of our claim to
be a civilised society”. It is
unsurprising therefore that society demands the imposition of harsh
sentences which adequately
reflect censure and retribution upon those
who commit these monstrous offences, and to deter would-be
offenders.’ (Footnote
omitted).
[50]
The trial court magistrate, in her detailed
judgment on sentence, considered all the relevant factors which come
into play when
deciding upon an appropriate sentence – the
serious nature of the
offence, the interests of the community, the prevalence of violence
towards women, children and the elderly
and the personal
circumstances of the appellant, which included that the appellant has
previous convictions for murder and rape.
In my view, not one of
these factors was over-emphasised at the expense of another.
[51]
I find that the trial court weighed both the mitigating
factors and the aggravating factors and correctly found that no
substantial
and compelling circumstances exist to deviate from the
prescribed minimum sentence of life imprisonment. In my view, the
trial
court exercised its discretion in a reasonable manner, and the
sentence is not shockingly inappropriate.
We
further find that, when considered cumulatively, the appellant’s
personal circumstances do not constitute substantial and
compelling
circumstances and therefore do not justify a deviation from the
imposition of the prescribed minimum sentence. There
is accordingly
no basis on which this court can interfere with the sentence imposed.
[52] In
the result, the following order is made:
1.
The appeal against the conviction and
sentence is dismissed.
________________________
STANTON J
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
I concur
________________________
WILLIAMS J
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
On behalf of the
appellant:
Adv. KK Biyela
On instructions of:
Legal Aid SA
On
behalf of the respondent:
Adv. SK Weyers-Gericke
On instructions
of:
The NDPP
[1]
1948
(2) SA 677
(A)
at 705
.
[2]
Ibid
at 706.
[3]
Rex
v Difford
1937
AD 370
at
373 and 383; see also
Tshiki
v S
(358/2019)
[2020] ZASCA 92
(18 August 2020) para 13
.
[4]
[2024]
JOL 63108
(SCA);
[2024]
ZASCA 18
(21 February 2024)
para
27; see also
S
v Van der Meyden
1999
(1) SACR 447
(W) at 448F-H, adopted and affirmed by the Supreme
Court of Appeal in
S
v Van Aswegen
2001
(2) SACR 97
(SCA)
para 8.
[5]
S
v Hadebe
and
Others
1997 (2) SACR 641
(SCA) at 645G-H.
[6]
Ibid
at
645J-646B.
[7]
(1980-1984)
L A C 57
at
59F
-
H.
[8]
1932
CPD 79
at
80
.
[9]
S
v Sauls and Others
1981 (3) SA 172
(A) at 180E-G (“
Sauls
”);
see also
S
v Artman and Another
1968
(3) SA 339
(A)
at 341A-D.
[10]
2004
(1) SACR 420
(C)
at 422.
[11]
Ibid
,
see also
S
v Ganie and Others
1967
(4) SA 203
(N) at 206G-H.
[12]
Sauls,
above
fn 9.
[13]
2003
(1)
SACR
583
(SCA)
at 584
.
[14]
See also
Robinson
and Others v S
[2019]
JOL 41057
(KZP) para 9.
[15]
(429/2022)
[2023]
ZASCA 3
(23
January 2023) para 17.
[16]
1981
(1) SA 1020
(A)
at 1028B-D.
[17]
Maila,
above
fn 15, para 18 (Footnotes omitted).
[18]
Supra
at paras 20 and 21.
[19]
2003
(6) SA 505 (CC); 2003 (10) BCLR 1100 (CC); 2003 (2) SACR 319 (CC)
para 63.
[20]
1944
AD 571 at 586.
[21]
S
v Pillay
1977
(4) SA 531
(A) at 535E-G.
[22]
S v
Pieters
1987 (3) SA 717
(A) at 728B
-
C;
see also
Director
of Public Prosecutions, Grahamstown v Peli
[2018]
JOL 40195
(SCA) para 7
.
[23]
2017 (1) SACR 309
(SCA) para 8.
[24]
2013 (2) SACR 533
(SCA) para 20.
[25]
2001 (1) SACR 469
(SCA) paras 7-9; see also
S
v Dodo
[2001] ZACC 16
;
2001
(3) SA 382
(CC) para 11 (where the
dictum
in
S
v Malgas
in para 25 was approved).
[26]
2012
(6) SA 353
(SCA) para 58.
[27]
2018
(1) SACR 479
(SCA) para 14; see also
S
v Radebe and Another
2013 (2) SACR 165
(SCA) para 13-14; and
Director
of Public Prosecutions, North Gauteng: Pretoria v Gcwala and Others
2014 (2) SACR 337
(SCA) para 16.
[28]
2017
(1) SACR 309
(SCA) para 9.