IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable
Case no: A205/2024
In the matter between:
STEPHEN MAKHETHA Appellant
and
.THE STATE Respondent
Neutral Citation: Stephen Makhetha v The State (A205/2025) [2025] ZAFSHC 328
(21 October 2025)
Coram: Daffue et Opperman JJ
Heard: 25 August 2025 and 15 September 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' representatives by email and released to SAFLIL The date and time for
hand down is deemed to be 21 October 2025 at 15h00.
2
Summary: Criminal appeal - sentence - rape - robbery with aggravating
circumstances - minimum sentence applicable - Criminal Law Amendment Act I 05
of 1997 - substantial and compelling circumstances - concurrency of sentences -
misdirection - powers of appeal court to interfere - increase of sentences
3
ORDER
1 The appeal on the sentences is dismissed on both counts.
2 In terms of s 309(3) read with s 322 of the Criminal Procedure Act 51 of 1977,
the sentences imposed by the court a quo in respect of rape ( count 1) and robbery
with aggravating circumstances (count 3) are set aside and substituted with the
following:
'1 Count 1: Life imprisonment;
2 Count 3: Fifteen (15) years' imprisonment.
3 The sentences are antedated to 2 December 2011.
4 It is ordered in terms of s 280(2) of the Criminal Procedure Act 51 of
1977 that the sentences shall be served concuITently.'
JUDGMENT
Opperman J (Daffue J concurring)
Introduction
Sentencing must be in accordance with the law
[ 1] This case is purely about the law regarding sentencing, a domain characterised
by intricate complexities that go beyond practises every so often applied in our
courts and to the detriment of the administration of justice. Terblanche1 said it best:
1 SS Terblanehe Criminal Law : G uide to Sentencing in South Africa 3 ed at Chapter I Introduction and 4 An academic
view or the law of sentencing. Also see at 5.5.6.
4
'There is no doubt that a body of law exists which applies to the sentences imposed by our courts
and to the processes involved in this action. There is a great temptation to call this body of law the
law of sentencing ... Most legal aspects related to sentencing are covered by the well-established
fields of study, namely criminal law and criminal procedure.
Knowledge of and insight into the whole field of sentencing is essential for at least three reasons:
(I) Sentencing takes place frequently. Lack of knowledge and insight becomes glaring when
repeated.
(2) Sentencing is generally considered difficult and complicated.
(3) The sentence is probably the closest the public ever comes to observing the law in action.'
[2] Terblanche,2 Du Toit et al3 and Kriegler & Kruger4 do indeed indicate the
acceptance of one complete field of law. Sentencing in South Africa is regulated by
a combination of common law, statutes, case law, academic literature, and the
Constitution of the Republic of South Africa, 1996 (Constitution).
The predicament of the case
[3] The dilemma that caused the introduction above is the scenario that presented
itself in this case. The appellant (he was accused one a qua) was sentenced to an
effective te1m of 40 years' imprisonment due to the fact that the court a qua ruled
substantial and compelling circumstances to exist. Peculiarly he refused to let the
sentences be served concurrently in terms of s 280 of the Criminal Procedure Act 51
of 1977 (CPA). One almost gets the impression that he realised that the finding on
compelling and substantial circumstances was inappropriate on the facts and
convictions of the case and then wanted to remedy the distortion with the 40 years'
sentence.
2 Ibid al 5.1-5.6.
3 See the discussion of Du Toil et al: Commentary on the Criminal Procedure Act, CD-Rom & Intranet: ISSN I 819-
7655, Internet: ISSN 1819-8775, Jutastat, updated to 31 January 2025, loose-leaf publication e-publicationsat at
Chapter 28 pp RS 74, 2025 ch28-p I Lo RS 69, 2022 ch28-p2H.
• A Kruger Criminal Law and 1-liemstra's C riminal Procedure (2025) at 28-1 -28-2 SI 18.
5
[ 4] Application for leave to appeal was denied but this Court granted leave on
petition on the sentence only.
[5] This peculiar and irregular state of affairs caused the appellant to appeal on
the grounds that the court a qua erred in imposing an effective sentence of 40 years'
imprisonment, on the grounds that it is shockingly inappropriate under the
circumstances. Counsel for the appellant maintained that substantial and compelling
circumstances were present to deviate from the reJevant minimum sentences. This
_was however nullified by the order that the sentences should not run concurrently.
The submission cannot be faulted. The presence of an oxymoron within legal context
is readily apparent.
[ 6] The appellant now appeals that the sentence imposed on the rape should run
concurrently with the term of imprisonment imposed on the robbery with
aggravating circumstances; that the appellant be sentenced to an effective sentence
of 25 years' imprisonment and that the sentence be antedated to 2 December 2011. 5
[7] Upon scrutiny of the case, the Court noted issues regarding adherence to
sentencing laws. The Court also considered the potential effects of the appeal on the
merits of the case and recognised that the imposition of minimum sentences may be
necessitated. Notice6 was given to the parties on 25 August 2025 of this intentio~
and they were invited to present reasons in writing.
5 Appellant was convicted and sentenced as follows:
a Rape , sentenced to 29 years imprisonmcnl.
b Robbery with aggravating circumstances, sentenced to a tcm1 of 11 years imprisonment.
6 Section 309(3) read with Section 322 of the Criminal Procedure Act 51 or 1977. Section 322( I )(b) gives the court
the authority to confirm the conviction or sentence, set it aside, or make any other order it deems lit, whiles 309(3)
provides an additional power to alter a sentence. This includes the power to increase a sentence - but only if
procedural fairness is observed. Th e audi alteram partem rule demands that an appellate court cannot increase a
sentence unless the accused has been warned in advance that such an outcome is possible. Sec Bogaards v S (CCT
6
[8] The heads of arguments were filed and the appellant endeavoured to introduce
new evidence on appeal by attaching some certificates that he obtained in prison
since his incarceration. The new evidence on appeal is irregular, but it confirms that
he received proper notice.
The reality of the case
[9] The presiding magistrate described the rape and the robbery that the appellant
and his co-accused committed as: ' ... their actions were savage. They were cruel.
They had no mercy. '7 It is trite that the victim of the rape and her boyfriend were
given a lift by the appellant and his two friends in the early morning hours. They
robbed the boyfriend; forced him out of the car and took turns to rape the then 17-
year-old girl. She was 18 years old at the time of rendering evidence in court. The
appellant was linked with DNA to the intercourse but denied the rape. The young
woman was raped by the three perpetrators one after the other. The appellant took
the lead that night and instigated the incident. After the first series of rapes, he
instructed the complainant not to put her panties on because they were going to rape
her again; they did do so. Again, one after the other. They also assaulted her with a
bottle on her head. She did not suffer 'serious' injuries. The accused then threw her
out of their moving car and left her vulnerable and desolate. She was assisted by a
120/11) (2012) ZACC 23; 2012 ( 12) BCLR 1261 (CC); 2013 (I) SACR I (CC) (28 September 2012) (Bogaards) paras
60-61.
Section 309(3), reads as follows:
'(3) The provincial or local division concerned shall thereupon have the powers referred lo in section 304 (2),
and, unless the appeal is based solely upon a question of law, the provincial or local division shall, in addition to such
powers, have the power lo increase any sentence imposed upon the appcllanL or lo impose any other form of sentence
in lieu of or in addition to such sentence: Provided that, notwithstanding that the provincial or local division is of the
opinion that any point raised might be decided in favour oflhc appellant, no conviction or sentence shall be reversed
or altered by reason of any irregularity or defect in lhe record or proceedings, unless it appears Lo such division that a
failure of justice has in fact resulted from such irregularity or defect.'
Section 322(6), reads as follows:
'(6) The powers conferred by this section upon the court of appeal-in relation to the imposition of punishments,
shall include the power to impo se a punishment more severe than that imposed by the court below or to impose another
punishment in lieu of or in addition lo such punishment.'
7 Page 643 of the record.
7
good Samaritan taxi driver and later some people on their way to work. She reported
the incident to her family and then the police. During the event one of the
perpetrators removed the complainant's earring and put it in her mouth. He took her
rings from her fingers and demanded the shoes she was wearing. He bizaiTely gave
her his shoes. The appellant at some stage refused to attend8 court and delayed the
case.
The substantial and compelling circumstances ruled a quo and some other
grounds for appeal
[ 1 O] The minimum sentence in terms of the Criminal Law Amendment Act 105 of
1997 (CLAA) of life imprisonment is applicable to the rape conviction.9 The same
is applicable to the charge of robbery and the term of imprisonment prescribed is
15 years' imprisonment. 10
[11] The court a qua ruled tl:ie following to be substantial and compelling:
'At this stage the court is also satisfied that substantial and compelling circumstances exist in this
matter and the following are read to the record in relation to accused I and 3. These are, one, the
relative ages of accused I and 3, and two, they (indistinct) prospects of rehabilitation.' 11
8 Page 568 of the record.
9 Section 51 (I) of the Criminal Law Amendment Act I 05 of 1997 (CLAA), provides as follows:
'51 Discretionary minimum sentences for certain serious offences
(I) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a 1-ligh Court shall
sentence a person it has convicted of an olTence referred to in Part I of Schedule 2 to imprisonment for life.'
10 Section 51 (1)(a) of the CLAA , reads as follows: •
'(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall
sentence a person who has been convicted of an offence referred to in-(a) Part II of Schedule 2, in the case ol:._
(i) a lirst otlcnder, to imprisonment for a period not less than 15 years;
(ii) a second olTendcr of any such offence, to imprisonment for a period not less than 20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years.'
11 Record at p 635.
8
The appellant
[12] The appellant's personal circumstances are:
a. Appellant was born on 2 May 1982; he was therefore 24 years old at the time
of the incident. On this score it must be regarded that he already had a previous
conviction of housebreaking and theft and assault with intent to do grievous bodily
harm. He clearly was not a nai"ve young adult. He was the instigator and the leader
in the unpleasant incident here. He showed no remorse as the record of the trial
shows. Although the evidence presented was substantial, he maintained that he was
not guilty. In S v Matyityi (Matyityi)12 it was stated that:
'Remorse is a gnawing pain of conscience for the plight of another. Thus, genuine contrition can
only come from an appreciation and acknowledgement of the extent of one's error ... In order for
the remorse to be a valid consideration, the penitence must be sincere and the accused must take
the court fully into his or her confidence.'
b. Notwithstanding relying on his youthfulness, he is the father of a child, aged
9. The child was staying with the parental grandmother, and the appellant was
maintaining the child before his arrest. The biological mother of the child passed
away.
c. Both the parents of the appellant were still alive.
d. Appellant was employed from 1999 to 2002. Subsequently, he undertook
temporary employment, earning around Rl 50 per week.
e. Appellant's highest scholastic qualification is Grade 11. Due to financial
constraints, he left school to obtain employment. He could not further any studies.
f. The appellant has previous convictions. He was apparently convicted on 29
January 2008. The convictions are housebreaking with the intent to steal and theft
and assault with the intent to do grievous bodily harm. Evidently the two counts were
12 S v At/otyityi (695/09) (2010] ZA SC A 127; 2011 (I) SAC R 40 (SCA); (2010] 2 All SA 424 (SCA) (30 September
20 I 0) (Matyilyi) para 13.
9
taken together for purpose of sentence and the sentence was six months
imprisonment. The perpetration of the crimes in casu happened on 24 June 2006.
g. The appellant stayed in custody since his arrest in 2006. Bail was not granted.
Appellant has been in custody awaiting trial for approximately 5 years. The reason(s)
for his incarceration are not clear. He was sentenced on the previous convictions in
2008 and that might have been the cause.
h. Appellant suffers from back pain, for which he is sporadically hospitalized,
and is regularly taking medication for pain.
The incarceration of the appellant
[13] The delay in the case and the fact that the appellant was incarcerated for five
years pending finalisation of the trial was held as a substantial and compelling factor
on appeal. There is not any evidence before the Court as to the reason for the
incarceration of the appellant. Some reasons were given for the delay by the
presiding officer in the judgment. It is clear that all the parties contributed hereto.
The appellant was represented by counsel throughout the trial, but it is not known if
anything was done to obtain his release pending the finalisation of the case. There is
no evidence of any appeal against refusal of bail or any other efforts. It is indeed a
factor but the question will be if it may be elevated to substantial and compelling in
the face of the evidence as a whole.
[14] The Supreme Com1 of Appeal in Loyiso Ludidi and Others v S 13 (Ludidi)
investigated the effect of incarceration awaiting trial on the imposition of minimum
sentences. It was concluded that it is now trite law that in respect of finite sentences
there is no hard and fast rule as to the weight to be afforded to pre-sentencing
13 loyiso ludidi and Others v S (983/2022; 056/2024) (2024] ZASCA 162; 2025 (I) SACR 225 (SC A) (29 November
2024) (ludidi) para 13.
10
incarceration. It is but one of the factors to lake into consideration when determining
the existence of substantial and compelling circumstances. The reasons for the
prolonged period of detention prior to sentencing is relevant. A court cannot
approach a life sentence as anything other than a sentence which is imposed for the
rest of that person's life. It cannot be 'reduced' by the period spent in custody
awaiting trial and it would be improper for a court to consider the possibilit)' of
parole.
[15] The Supreme Court of Appeal ruled in Ncgobo v S1~ that the period spent in
custody before conviction and sentencing is not, on its own , a substantial and
compelling circumstance. It is merely a factor in determining wh ether the sentence
imposed is dispropo1tionate and unjust. It was held that the 2 years spent in custody
would mak e a minimal impact on a sentence oflifc imprisonment and did not render
the sentence shockingly disproportionate.
[16] In the Ludidi-case15 wherein the appellant was incarcerated for 5 years and
8 months, Nicholls JA ruled that:
'[17] If one turns to the offences for which the appellants were convicted, these were heinous.
Th ey were hired assassins willing to murder whoever was identified if they were paid for the deed.
There is nothing disproportionate about their sentences of life imprisonment. Regarding the period
in custody as awaiting trial prisoners, unless this is an exceptionally long period of time to which
the conduct of the accused persons has not materially contributed, Lhis in my view, can never in
and of itself. be a substantial and compelling circumstance wh ere life imprisonm ent is imposed.
The role of courts is lo ensure that any sentence passed is a fair one having regard to Lhe crime
committed and the individual circumstances of the accused.' (Accentuation added.)
14 N cgobo v S ( 1344/2016) [2018] Z A SC A 6; 20 18 (I) SACR 479 (SCA) (23 February 2018) paras 7 and 21.
15 L11didi fn 13 above.
11
[17] This factor, considered independently, does not meet the criteria for being
classified as substantial and compelling in favour of the appellant.
The injuries of the complainant and rape
[ 18] The next issue that was relied upon by the appellant is the fact that the 17-
year-old girl did not sustain serious injuries. Section 51 (3)(aA)(i) of the CLAA and
the matter of Radebe v S (Radebe)16 are relevant.
[19] Section 51(3)(aA)(i) of the CLAA, provides:
'51 (3)(aA) When imposing a sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances justifying the imposition of a lesser sentence:
(i) The complainant's previous sexual history;
(ii) an apparent lack of physical injwy to the complainant;
(iii) an accused person's cultural or religious beliefs about rape; or
(iv) any relationship between the accused person and the complainant prior to the offence
being committed.' (Accentuation added.)
[20] The Rade be-case concluded the law on the issue:
a. The Supreme Court of Appeal decreed against the notion that the absence of
physical harm (presumably aside from the assault which constitutes the rape) can as
an objective consideration minimise the impact of a rape on the subjective suffering
of the victim and the victim's family.17
16 Radebe v S (A03/2017, 374/04/2016) (2019] ZAGPPHC 406; (2019] 3 All SA 938 (GP); 2019 (2) SACR 381 (GP)
( I 0 July 2019) (Radebe) para 46.
11 These cases arc Matyityi per Ponnan JA para 23; S v Nk11nk11111a and Otliers (I 01/2013) [2013] ZASCA 122; 2014
(2) SACR 168 (SCA) (23 September 2013) para 12. Bogoards pp 58 - 72; Sv Chapmon [I 997] ZA SCA 45; 1997 (2)
SACR 3 (SCA); 1997 (3) SA 341 (SCA); [ 1997] 3 All SA 277 (A) (22 May 1997) per Mohamed CJ at 3441 - 345E;
Director of Public Prosecutions, North Go uteng v Thabethe (619/10) [2011] ZASCA 186; 2011 (2) SACR 567 (SCA)
(30 September 2011) per Bosielo JA para 22; and S v GK (A05/2013) (2013] ZA WCI-IC 76; 2013 (2) SACR 505
(WCC) (24 May 2013) paras 17 and 21-22.
12
b. Satchwell J in S v M1 8 made the cruciai declaration that:
'Furthermore, the responses of rape survivors are surely as complex and multi-layered as are the
individuals who experience rape. We must therefore expect the manifestation of the impact ofrape
to be varied ... Some responses wi ll be publicly displayed and others privately endured. Some rape
survivors will collapse while other will bravely soldier on ... It would seem that sentencing courts
are expected to view rape as 'more serious' where a rape survivor cannot sleep, fears men and sex,
is unable to concentrate and cannot complete school, or has a career or relationship destroyed. If
this is so, then other rape survivors may question why their rapes are viewed as 'less serious'
because they may have been fortunate or privileged enough to receive professional assistance, be
endowed with different personalities and psyches, exhibit fewer post-traumatic-effects and so on.
The Legislature does no/ seem lo have intended the rapisl to be less morally and legally
blameworthy because the rape survivor appears to or actually does survive or continues life with
less apparent trauma.' (Accentuation added.)
c. Rape is an assault on the core values of a functioning society no matter that
there are visible injuries or not. Rape constitutes the invasion of a bundle of rights
impacting on the bodily integrity and psyche of the victim and the mere absence of
physical injury cannot automatically equate with a lesser degree of degradation or
emotional and psychological trauma. It is the society as a whole that suffers.19
d. The yardstick of physical injury will ignore the emotional and psychological
damage to the victim which may include exhibiting ( or being at risk of suffering)
personality disorders or feelings of worthlessness to the point of displaying suicidal
tendencies.20
e. Finally, but not the least:
'49. Nkabinde J, in the context of developing the common law of rape, said in-Masiya at paras
36 to 39:
36 to 39:
" ... historically, rape has been and continues to be a crime of which females are its systematic
target. It is the most reprehensible form of sexual assault constituting as it does a humiliating,
18 Rade be para 45 citing S v M 2007 (2) SACR 60 (W) paras 99 and IOI.
19 Radebe para 46.
20 Radebe para 47.
13
degrading and brutal invasion of the dignity and the person of the survivor. It is not simply an act
of sexual gratification, but one of physical domination. It is an extreme and flagrant form of
manifesting male supremacy over females. (para 36)
... One of the social contexts of rape is the alarming high Incidences of HIV - Infection Anal
penetration also results in the spread of HIV. (para 38) The consequences caused by non
consensual anal penetration might be different to those caused by non-consensual penetration of
the vagina but the trauma associated with the fonner is just as humiliating, degrading and
physically hurtful as that associated with the latter (para 39)".'
The effect of the CLAA on the Court of Appeal
[21] In Tuta v The State(Tuta)21 the Constitutional Court discussed the minimum
sentencing regime in the context of a case that lies on appeal:
a. The decision whether "substantial and compelling circumstances" exist
requires an evaluative judgment - not merely mechanical discretion.
b. This evaluation is constitutional in nature, as it involves balancing
proportionality, fairness, and justice in sentencing.
c. Therefore, an appellate court may reconsider such determinations, since they
are value judgments, ~ot merely discretionary findings.
d. This observation widens appellate oversight of sentencing by allowing higher
courts to scrutinize whether the trial court properly appreciated the constitutional
context of sentencing (fairness, dignity, proportionality). The Court of Appeal shall
correct outcomes wh ere the lower court mechanically applied the minimum sentence
without exercising real moral evaluation and so ensure consistency and fairness in
applying minimum sentencing laws across cases.
' [ 183] The existence of what may be described as two different sentencing approaches that the
Court in Bailey referred to is clearly justified and warranted by the far-reaching nature that the Act
21 Tuta v The State (C CT 308/20) [2022] Z ACC 19; 2023 (2) BCLR 179 (CC); 2024 (I) SA C R 242 (CC) (31 May
2022) paras 162 to 186.
14
has introduced into our law. While it has not removed the sentencing discretion, it hasfellered it to
some extent and with that comes the likelihood of a sentencing framework thal may pose a
significantly higher risk Jo I he freedom of the individual and considerations of a fair Jrial. In those
circumstances an error in a finding of substantial or compelling circumstances is inherently more
damaging lo /he constitutional values of freedom and liberty, justifying al the level of principle a
wider scope for appellate inte,ference.' (Accentuation added)
The equilibrium in sentencing
[22] Both convictions pertain to harm caused to society, with the two complainants
experiencing direct effects. On the facts in conspectus, it is grave and disturbing but
it is imperative to balance the above with the remark in Vilakazi v S:22
'[3] There is considerable risk in those circumstances that excessive punishment will be heaped
on the relatively few who are convicted in retribution for the crimes of those who escape or in the
despairing hope that it will arrest the scourge. But the Constitutional Court reminded us in S v
Dodo -that punishment must always be proportionate to the deserts of the particular offender-no
less but also no more - for all human beings "ought to be treated as ends in themselves, never
merely as means to an end".'
Conclusion
[23] It is indeed true that punishment must be proportionate to the deserts of the
particular offender and serve the community. I add that it must be imposed in
accordance with the established law. It did not happen here; a misdirection befell the
administration of justice. In Director of Public Prosecutions, Gauteng v Pistorius, 23
Seriti JA noted that:
'[ 17] In Director of Public Prosecutions, KwaZulu-Natal v P 2006 (I) SACR 243 (SCA) para
I 0, when dealing with the question whether the sentence imposed by the trial court was
22 S v Vilakazi (576/07) [2008) ZASCA 87; [2008) 4 All SA 396 (SCA); 2009 (I) SACR 552 (SCA); 2012 (6) SA 353
(SCA) (3 September 2008).
23 Director of Public Proserntions, Gautengv Pisto,·ius (950/2016) [2017) ZASCA 158; 2018 (I) SACR 115 (SCA);
[2018) I All SA 336 (SCA) (24 Novt:mbcr 2017).
15
appropriate, this court said "[t]he tesl for interference by an appeal court is whether the sentence
imposed by the trial court is vitiated by irregularity or misdirection or is disturbingly
inappropriate". The Constitutional Court reaffirmed this approach in S v Boggards [2012] ZACC
23; 2013 (I) SACR 1 (CC) para 41 when it said "[o]rdinarily sentencing is within the discretion
of the trial court. An appellate court's power to interfere with sentences imposed by courts below
is circumscribed. It can only do so where there has been an irregularity that results in a failure of
justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated;
or the sentence is so disproportionate or shocking that no reasonable court could have imposed
it". See also S v Ma/gas 2001 (I) SACR 469 (SCA) para 12 and S v Hewitt [2016] ZASCA
100; 2017 (I) SACR 309 (SCA) para 8.'
[24] The irregularity to regard the age of the appellant at 24 and find a potential of
rehabilitation on his personal circumstances as substantial and compelling, is wrong.
In the face of his previous convictions, his participation shown in the horrendous
offences and his lack of remorse, it shows the direct opposite. The further mistake in
law to impose a sentence of 40 years' imprisonment that is disproportionate to the
ruling of substantial and compelling circumstances is obvious.
[25] Life imprisonment is the ultimate penalty that the· courts can impose and this
awareness is to be pertinent when a sentence is imposed. However, the Legislator
has spoken for the community and in S v PB,
24
in line with Matyityi,
25
the Supreme
Court of Appeal emphasised that prescribed minimum sentences should not be
departed from lightly, or for flimsy reasons. The facts of the case show barbaric gang
rapes with disregard for the life of a 17-years-old young lady. The robbety with
aggravating circumstances perpetrated against the boyfriend is similarly grave.
aggravating circumstances perpetrated against the boyfriend is similarly grave.
Bearing in mind the seriousness of the offences, it is required that the elements of
24 S v PB 2013 (2) SACR 533 (SCA) para 20.
2s 1vlatyityi para 23.
16
retribution and deteffence should come to the fore and that the rehabilitation of the
appellants should be accorded a smaller role as emphasised by the Supreme Court
of Appeal in S v Kekana. '.16
[26) The sentence of 40 years' imprisonment is inappropriate, the compelling and
substantial circumstances rnled are irregular; and the provisions of the CLAA must
prevail._ I will order for the sake of formality and clarity that the sentences shall be
served concurrently.
Order
[27] In the result the following order is made:
1 The appeal on the sentences is dismissed on both counts.
2 In tenns of s 309(3) read with s 322 of the Criminal Procedure Act 51 of 1977,
the sentences impo_sed by the court a qua in respect of rape ( count 1) and robbery
with aggravating circumstances (count 3) are· set aside and substituted with the
following:
'1 Count I: Life imprisonment;
2 Count 3: Fifteen (15) years' imprisonment.
3 The ~entences are antedated to 2 December 2011.
4 It is ordered in tenns of s 280(2) of the Criminal Procedure Act 51 of
1977 that the sentences shall be served concurrently.'
26 K huzelo and An other,, The State (A 149/2024) [2025) Z Af-SH C 264 (28 Au gust 2025) para 26. Kekana vS (37/2018)
(2018] ZASCA 148; S v Kckana 2019 (I) SA C R I (SC A) (31 October 2018) paras 39-42.
I concur
Appearances
For appellant:
Instructed by:
For respondent:
Instructed by:
S Kruger
17
ML OPPERMAN
JUDGE OF THE HIGH COURT
JPDAFFUE
JUDGE OF THE HIGH COURT
Legal Aid South Africa,
Bloemfontein Local Office
S Tunzi
Office of the Director of Pub lic Prosecutions; Free State
BI oemfontein.