IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
MOKETE BERNEDICT MOTAUNG
and
1
Not reportable
Case no: A75/2025
APPELLANT
THE STATE RESPONDENT
Neutral citation: Mokete Bernedict Motaung v The State (A75/2025) [2025] ZAFSHC
359 (19 November 2025)
Coram:
Heard:
OPPERMAN J et BOKWA AJ
6 October 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 15h00 on 19 November 2025.
Summary : Criminal appeal - convictions and sentences - rape - minimum
sentence legislation - evaluation of evidence - compelling and substantive
circumstances found present justifying deviation of the prescribed minimum sentence
imposed by the court a qua.
2
ORDER
1 The appeal against the conviction is dismissed.
2 The appeal against the sentence is upheld, and the sentence of 15 (fifteen) years
imprisonment is hereby set aside.
3 The appellant is sentenced to 10 (ten) years imprisonment.
4 The sentence is antedated to 25 November 2024.
JUDGMENT
Bokwa AJ (Opperman J concurring)
Introduction
[1] The appellant was convicted and sentenced in the Reg ional Court for the District
of Thabo Mofutsanyana held at Bethlehem (court a quo) on 25 November 2024. He was
charged with rape read with the provisions of s 3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007 and s 51 (1) read with Part 1 of Schedule
2 of the C rim inal Law Amendment Act 105 of 1997. The court a quo also found that there
were no compelling and substantial circumstances meriting a deviation from the
prescribed minimum sentence and imposed a sentence of 15 years imprisonment. The
appellant now appeals to this Court against both the conviction and sentence imposed by
the court a quo. The appeal is before this Court with the leave of the court a quo.
[2] The charge levelled against the appellant is that on 5 November 2023 and at or
near Bohlokong in the district of Bethlehem, and w ithin the Regional Division of the Free
State, the appellant unlawfully and intentionally committed an act of sexual penetration
w ith the complainant, by inserting his penis into her vagina w ithout the consent of the said
complainant and thus raped her. The appellant was legally represented throughout the
trial and pleaded not guilty to the charge of rape.
3
Factual matrix
[3] At the hearing of the matter in the court a qua, the State's case rested on the
evidence of three witnesses being: the complainant, her boyfriend Mr Thabiso Sithole
(Mr Sithole), and Dr Valdez. At the close of the State's case, the appellant testified in his
own defense, also calling a witness to corroborate his version, namely his girlfriend,
Ms Mathabo Sibeko (Ms Sibeko). The evidence before the trial court can be summarised
briefly as follows:
(a) On 4 November 2023, the appellant met his colleague Mr Sithole at a tavern near
Bohlokong township. The appellant was with his girlfriend Ms Sibeko in the company of
Mr Sithole and the complainant. The four shared alcoholic drinks until the closing of the
tavern in the morning of 5 November 2023 and at about 02h00, they all left for the house
of Mr Sithole. Upon arrival, it was decided that a bed be prepared for the appellant and
his girlfriend in the kitchen where they would spend the night. Mr Sithole and the
complainant, went into a separate bedroom, to retire for the evening. According to the
evidence of the complainant, she was awoken at around 04h00, when she felt something
hard inside her vagina. She was shocked to realise that it was the appellant who had
penetrated her with his penis in her private parts whilst she was fast asleep next to her
boyfriend. She confronted the appellant asking him what he was doing. According to her,
the appellant seemed shocked and looked away , protesting that he had done nothing
wrong to the complainant. She immediately woke Mr Sithole and made a first report to
him that the appellant had just raped her.
(b) On hearing about this report, Mr Sithole confronted the appellant, asking him
what he was doing in their bedroom and pressing him on why he was naked and also
on their bed. According to her testimony, the appellant responded to the question as to
why he was in their room by stating that he was not comfortable sleeping on the floor
why he was in their room by stating that he was not comfortable sleeping on the floor
surface as the bed prepared for both him and his girlfriend was in the kitchen and on
the floor. To this response, Mr Sithole again asked the appellant why he did not wake
him up to raise such a complaint because an alternative arrangement could have been
made if that was the truth of why he was in their bedroom.
(c) The complainant went into the kitchen to check on the appellant's girlfriend,
whom she found asleep, and half clothed. She then returned to her bedroom and sat on
the bed crying. At this stage Mr Sithole asked the appellant to get out of their room. The
appellant, who was naked, took his clothes from the floor and covered his private parts
and walked out of the room to the kitchen. The complainant asked Mr Sithole to check
4
her private parts because she felt wetness in her vagina, which he proceeded to do and
discovered that it was indeed so. The appellant then left the house with his girlfriend.
He later returned alone without his girlfriend and reentered the bedroom of Mr Sithole.
This time he was asking the complainant if she was sure about her allegations. The
complainant reiterated her stance and version.
(d) When the complainant reiterated her stance, he apologised for his conduct. The
complainant requested her boyfriend to call the police. The appellant left the house
alone. The complainant later went to the hospital for a medical check-up and then to the
police station to open a case of rape. It was her evidence that although she had
consumed alcohol; she was nevertheless still aware of her surroundings and her
senses.
[4] The cross examination focused on when they all left the tavern, how much alcohol
was consumed , if alcohol was consumed at the house after they left the tavern, and the
details of how the complainant and her boyfriend slept with their positioning whilst both
naked. The complainant was adamant that she did not engage in any sexual activity with
her boyfriend that evening. Though she did not see what penetrated her vaginally, she
was adamant that she felt something in her private parts.
[5] The summary of Mr Sithole's evidence was briefly as follows: that they all four met
at a tavern and consumed alcohol and later in the morning hours, when the tavern closed,
proceeded to his home. Upon arrival, a bed was prepared in the kitchen with blankets
provided for the appellant and his girlfriend. He was awoken around 04h00 by the
complainant and he also noticed that the appellant was in bed with them. The complainant
made the first report to him that she was raped by the appellant. He realised that the
appellant seemed sleeping with his back turned against the complainant. He noticed that
the appellant was naked and proceeded to enquire what he was doing in their bedroom
the appellant was naked and proceeded to enquire what he was doing in their bedroom
and further requested the reason why he was also naked. According to his testimony,
they had earlier come from the tavern and went to bed and switched off the lights. When
he woke up, the lights were on. The lights were, however, switched off before they went
to the bedroom earlier. To his surprise, when he was awoken by the complainant, the
lights in the bedroom were on.
[6] The appellant responded that he couldn't sleep on the floor as it was
uncomfortable. He confronted him about why he did not wake him up so that he could
5
make an alternative plan, to which the appellant did not respond. By the time the
complainant went out to check on the appellant's girlfriend in the kitchen, he followed her.
He asked the appellant to leave his room whereupon the appellant got off the bed naked,
took his clothes from the floor, covered his front private parts and left the room. The
appellant left the house with his girlfriend and later returned alone. He went into their
bedroom and offered him a cider which he refused to drink. He went on to request for
forgiveness from the complainant. Subsequent hereto, he left the house. Mr Sithole and
the complainant left for the hospital where the complainant received medical attention
and later proceeded to the police station to report the case of rape.
[7] According to Mr Sithole, there was no bad blood between him and the appellant
and as a matter of fact, they had a close relationship before this incident. He had never
expected a close friend to conduct himself in a manner that the appellant conducted
himself that morning of the alleged rape incident. On the night in question, it was his
evidence that he did not engage in sexual activity with his girlfriend on account of being
under the influence and being tired.
[8] Dr Valdez was the third state witness who testified that he conducted medical
examinations on the comp lainant. He found that there was a discharge in the private parts
of the complainant and further that he couldn't rule out sexual penetration. On cross
examination he was clear that semen could still be detected in a rape victim, up to seven
days after intercourse. The J88 form was received as an exhibit confirming the doctor's
evidence. The state closed its case.
[9] The appellant testified in his own defense corroborating the testimony of the state
witnesses that on the day in question, 4 November 2023, he had met the complainant
and Mr Sithole at a tavern in Bohlokong also in the company of Ms Sibeko. They had
and Mr Sithole at a tavern in Bohlokong also in the company of Ms Sibeko. They had
enjoyed alcoholic drinks and when the tavern closed, around 02h00 they proceeded to
the house of Mr Sithole where they were to be accommodated for the balance of the night
as guests. On arrival, they were provided with blankets to prepare a bed in the kitchen on
the floor. He and his girlfriend engaged in sexual intercourse shortly thereafter on the
morning of the 5 of November 2023. He would feel the discomfort of sleeping on the floor
and after 30 to 35 minutes, left the kitchen where he was sleeping on the floor and joined
the complainant and Mr Sithole on their bed. According to his evidence, he slept next to
the complainant, only to be awakened by the complainant during the course of the
6
morning, questioning his presence in their bedroom and claiming that he had raped her.
H is evidence is that he was shocked and denied doing any such act.
[1 O] Further to this, he corroborated the complainant's evidence that she woke up
Mr Sithole and reported to him that she had been raped. Similarly, Mr Sithole, enquired
from the appellant why he was in their room. At this stage, he strenuously denied that he
had raped the complainant. He got out of bed, got dressed, and left with his girlfriend. A
short wh ile later, he returned alone, came into the bedroom with a cider. According to his
version, he came to apologise for entering their bedroom and their blankets without their
permission. He was still adamant that he was innocent of the allegations of rape. He even
suggested that the complainant report the matter to the police, as he protested his
innocence, whereafter he left the house of Mr Sithole.
[11] On cross examination, he stated that when their bed was being prepared, he had
made it very clear to everyone present that he would be uncomfortable to sleep on the
floor. In reaction to this comment , all the parties laughed and took the comment as a joke.
Howeve r, there was no solution or plan presented as an alternative by the host. He claims,
upon entering the room w here the complainant and her boyfriend were sleeping, he got
in next to the complainant and turned his back on them as he slept. The question
emanated from the bench regarding why he didn't sleep next to Mr Sithole, to which he
responded that there was no space, save next to the complainant. It was his evidence
that he was clothed in his boxers and was not naked and in any event, he also denied
any sexual intercourse between him and the complainant.
[12] Ms Sibeko testified under oath that she was in the company of the appellant, the
comp lainant and M r Sithole, on 4 November 2023, at a tavern in Bohlokong. When the
activities of the entertainment ended around 02h00 that morning, they were offered a
activities of the entertainment ended around 02h00 that morning, they were offered a
place to sleep at Mr Sithole's house nearby. On arrival, at the residency of M r Sithole,
they were offered blankets to prepare a bed in the kitchen. She slept naked with the
appellant, made love and after a while, in the morning, she heard noises coming from the
main bedroom of the com plainant and her boyfriend. She then saw the appellant and
Mr Sithole emerge from the bedroom. She also heard a report that the appellant had
allegedly raped the complainant, and according to her evidence, she was surprised by
those allegations. The sum total of her evidence is that all four had consumed alcohol
that night. She was awakened by the commotion emanating from the main bedroom of
7
the complainant and her boyfriend.
Grounds of appeal
[13] The judgement of the court a quo is assailed in respect of both the conviction and
the sentence on a number of grounds, which can be summed up as follows: first, the court
a quo erred in finding that the State proved its case beyond a reasonable doubt. Second,
the court a quo erred in finding that there were no improbabilities in the State's case.
Third, the court a quo erred in finding that the State witnesses gave evidence in a
satisfactory manner. Fourth, the court a quo erred in finding that the discrepancies in the
version of the appellant were sufficient to reject his version as false. Fifth, the court a quo
erred in finding that the appellant's version is or was not reasonably and possibly true.
Sixth, the court a quo did not take into account that all parties were under the influence
of alcohol.
[14] Regarding the sentence, the appeal is based mainly on the following grounds of
appeal, which can be summed up as follows: firstly, the court a quo erred in finding that
there we re no substantial and compelling reasons tendered on behalf of the appellant for
the court to deviate from the imposition of the minimum sentence of 15 years
imprisonment. Secondly, the court a quo placed too much emphasis on the seriousness
and the prevalence of the offence, the interests of the community and placed the personal
circumstances of the appellant at the receiving end. Thirdly, the court a quo over
emphas ised the deterrence factor during sentencing. Fourthly, the court a quo over
emphasised the issue of gender-based violence, without balancing all factors for
sentence purposes.
Analysis
[15] The issue which the court a quo had to determine was whether the appellant did
have unlawful and non-consensual sexual intercourse with the comp lainant, thus raping
her on the morning of 5 November 2023. This aspect remains to be determined by this
Court, sitting on an appeal mode . It is trite law that a court of appeal should be slow to
Court, sitting on an appeal mode . It is trite law that a court of appeal should be slow to
interfere with the findings of fact of the trial court in the absence of material misdirection.1
An appeal court's powers to interfere on appeal w ith the findings of fact of a trial court are
limited.2 In the absence of a demonstratable and material misdirection by the trial court,
1 S v Dh/umayo and A nother 1948 (2) SA 677 (A) at 705-706.
2 S v Francis 1991 (1) SACR 198 (A) at 204E.
8
its findings offacts are presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong. When an appeal is lodged against the trial
court's findings of fact, the appeal court should take into account the fact that the trial
court was in a more favourable position than itself to form a judgment because it was inter
a/ia, able to observe the witnesses during their questioning and was absorbed in the
atmosphere of the trial.3
[16] The principles in criminal proceedings are salient. The state bears the onus to
prove the accused's guilt beyond reasonable doubt.4 No onus rests on the accused to
prove his or her innocence.5 The accused's version cannot be rejected only on the basis
that it is improbable, but only once the trial court has found, on credible evidence, that the
explanation is false beyond a reasonable doubt.6 The corollary is that, if the accused's
version is reasonably possibly true, the accused is entitled to an acquittal. Equally trite is
that the appellant's conviction can only be sustained if, after consideration of all the
evidence, his version of events is found to be false.7
[17] The court a quo properly analysed the evidence of the complainant as a single
witness and in my view applied the cautionary rule properly. There was no bad blood
between the complainant, who was the girlfriend of Mr Sithole and the appellant, meaning
that there would have been no motive for her to incriminate him falsely about the alleged
rape incident of 5 November 2023. The evidence seems to suggest, Mr Sithole and the
appellant were actually work colleagues who had a good relationship even before the
incident. The court a quo properly analysed the evidence and, in my view, came to a
proper finding that the state had proved its case beyond reasonable doubt when
considering the totality of the evidence presented by the state witnesses.
[18] The court made a finding that the complainant, though a single witness, was
[18] The court made a finding that the complainant, though a single witness, was
credible. Section 208 of the Criminal Procedure Act 51 of 1997 permits the conviction of
an accused on the evidence of a single witness. Such evidence still has to be reliable and
3 S v Monyane and Others (2006] ZASCA 113; (2006] SCA 141 (RSA ) ; 2008 (1) SACR 543 (SC A) para
15.
4 S v Mbuli (2002] ZASCA 78; 2003 (1) SACR 97 (SCA) para 57; S v Jackson 1998 (1) SACR 470 (SCA )
at 476E and S v Shacke/1 (2001] ZASCA 72; (2001] 4 All SA 279 (A); 2001 (4) SA 1 (SCA) ; 2001 (2) SACR
185 (SCA ) para 30.
5 S v Combr inck (2011] ZASCA 116; 2012 (1) SACR 93 (SCA) para 15.
6 S v V 2000 (1) SACR 453 (SCA ) at 4558 .
7 S v Sithole and Others 1999 (1) SACR 585 at 590. See also Tshiki v S (2020] ZASCA 92 para 13.
9
credible enough to discharge the onus of proof and guilt beyond reasonable doubt. The
evidence must be clear and satisfactory in every material respect. The court a quo found
that the complainant's testimony was clear and forthright and especially materially
corroborated by the evidence of Mr Sithole, especially in the events pertaining to the
bedroom when the complainant was awakened. The court a quo further made a finding
that there were no inconsistencies or material contradictions to affect the credibility of the
evidence of the complainant. The court a quo came to a conclusion that the sum total of
her testimony passed evidentiary gate keeping and accepted her testimony as such.
Equally, in analysing the evidence of Mr Sithole, the court a quo made a finding that the
sum total of his evidence was impressive and corroborated the complainant's first report
about what transpired in the bedroom. Further to this, the court a quo made a finding that
there was nothing to suggest that his evidence was contrived or false.
[19] In analysing the evidence tendered by the appellant, the court a quo made a finding
that his version was a simple denial, despite the fact that he was present in bed with both
the complainant and Mr Sithole. The court a quo clearly identified the issue in dispute of
whether there was an intentional and unlawful vaginal penetration of the complainant by
the appellant. The court a quo rejected the evidence of the appellant as it was a bare
denial and the fact that his evidence was not satisfactory as a witness. The evidence of
Ms Sibeko did not offer much corroboration as it showed glaring contradictions especially
the events relating to the first and the second instances of being awakened when she
heard the commotion. The court concluded that she did not say anything regarding having
sexual intercourse with the appellant and came to the conclusion that her evidence was
not credible.
[20] In my view, the evidence of the complainant was solid and uncontroverted as
[20] In my view, the evidence of the complainant was solid and uncontroverted as
compared to the evidence of the appellant, which in my view was farfetched and could
not be said to be reasonably possibly true. The sum total of the appellant's evidence is a
bare denial. He was supposed to be a good guest, and he went out of his way to contradict
every rule or etiquette in the book expected out of a good guest.
[21] What is clear from the record are the following facts which are common cause: that
the complainant went to her boyfriend at the tavern and that they consumed alcohol and
decided to walk home when the tavern closed; that she was mode rately drunk when they
10
left the tavern; that she was in the company of her boyfriend, the appellant and his
girlfriend; that upon their arrival at home, she prepared a bed for the appellant and his
girlfriend on the floor in the kitchen, for them to spend the night; that she proceeded to
the bedroom with her boyfriend; whilst sleeping she felt something inside her private part
and that awoke her; that she was sleeping on top of her boyfriend, that is, her head on
his chest and leg across the boyfriend's thighs; when she turned around, she found that
it was the appellant and that the appellant was completely naked. Further that, the
appellant took his clothes and covered his private parts with it; that he later accompanied
his girlfriend as they left the house of Mr Sithole and then he came back to the house
alone and asked for forgiveness.
[22] In S v Chabalala (Chabalala),8 the Supreme Court of Appeal established the
correct approach for a court sitting on appeal to assess evidence. The appeal court must
weigh all the evidence, including its inherent strengths and weaknesses, to determine if
the court a quo's findings of guilt was correct, ensuring that the guilt of the accused is
proved beyond a reasonable doubt. The significant principles from that judgment are the
holistic evaluation of the evidence, meaning an appeal court must exam ine the entire
body of evidence to see if it was assessed holistically by the court a quo, weighing the
possibilities. The court must weigh the evidence pointing to the accused's guilt against
that pointing to their innocence, considering the probabilities and improbabilities of both
sides. For a guilty verdict to be upheld, the evidence in favour of the State must be so
strong that it leaves no reasonable doubt about the accused's guilt.
[23] What this means for an appeal court is that it is not to tamper with a trial court's
factual findings unless it is clearly wrong. If the appeal court finds there were
factual findings unless it is clearly wrong. If the appeal court finds there were
inconsistencies, contradictions, or improbabilities that were not properly considered by
the trial court, it may find that the State did not prove its case beyond a reasonable doubt.
If the balance of evidence weighs heavily in favour of the accused, the appeal court should
not uphold the conviction. In essence, Chabalala,9 emphasises that the guilt of an
accused is a conclusion derived from a careful and balanced assessment of all evidence,
rather than the accumulation of individual facts.
8 S v Chaba/a/a 2003 ( 1) SACR 134 (SCA) para 15.
9 Ibid.
11
Sentence
[24] It is trite that the sentence of an accused must be balanced between the interests
of the society, the offence and the personal circumstances of the accused.10 It is also trite
law that a court of appeal will only interfere with the sentence if it is not suitable or if any
irregularity occurred during sentencing.11 The personal circumstances of the appellant, at
the time, were as follows: he was 28 years old at the time of the sentence; his highest
standard of education was grade 1 0; he was not married; he had no children; he was
regarded as a first offender, even though he had a previous conviction of substance
abuse in 2016 where he paid an admission of guilt fine; he was gainfully employed at
Lion's Rock; he was earning R11 500 per month; his parents were not employed; and his
parents were elderly people.
[25] The following was stated by the court a quo on page 321 of the record at line 15:
'In casu, I objectively find no substantial and compelling circumstances justifying a departure from
the prescribed sentence. Yes, there is prejudice to his elderly parents, but they are not the ones
being tried. The situation is [but a] factor in the scheme of things, which must be approached
cumulatively so as to avoid disproportionality. Having considered and looked at the guiding case
law judiciously; balancing the competing interests; there is no objective justification to depart.'
[26] I deal next with whether there are any grounds for interfering with the sentence
that the court a qua imposed on the appellant. The narrow issue in this regard, gleaned
from the grounds of appeal relied on, is whether the court a quo erred in finding that no
substantial and compelling circumstances existed which warranted deviation from the
minimum sentence prescribed for the offence of which the appellant was convicted. The
difficulty in formulating the straitjacketed definition of the phrase 'substantial and
difficulty in formulating the straitjacketed definition of the phrase 'substantial and
compelling circumstances' is generally recognised by the courts.12 It bears emphasising
that the advent of minimum sentence legislation has not done away with the traditional
factors that are relevant to sentencing. Those are the personal circumstances of the
offender, the crime committed and the interest of society.
[27] It has been held that the prescribed minimum sentences are not to be departed
10 S v Banda and Others 1991 (2) SA 352 (V) at 355A-C .
11 S v Ma/gas 2001 (1) SACR 469 (SCA ) (Ma /gas) para 12, S v Anderson 1964 (3) SA 494 (A) at 495F-H
and S v De Jager and Another 1965 (2) SA 616 at 629A-B.
12 S v Dodo 2001 (3) SA 382 (CC) (Dodo) para 10 and Ma/gas para 20.
12
from, for flimsy reasons that would not withstand scrutiny;13 and that in cases of serious
crimes the personal circumstances of the offender, by themselves, will necessarily recede
into the background. In S v Vi/akazi, 14 it was held that 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, and whether or not he is in
employment, are in themselves largely immaterial in the light of what that period should
be, and that those seem to be the kind of 'flimsy' grounds that, according to Ma/gas,
should be avoided.15
[28] I now turn to an aspect of the use of alcohol during the commission of this crime
by all parties involved. Regarding the effect of intoxication, I acknowledge what the court
said in S v Ndlhovu (2).16 In that case it was held that intoxication is one of humanity's
age-old frailties, which may, depending on the circumstances, reduce the moral
blameworthiness of crime, and may even evoke a touch of compassion through the
perceptive understanding that man, seeking solace or pleasure in liquor, may easily over
indulge and thereby do the things which sober he would not do.
[29] However, the learned author Terblanche,17 states that the intake of alcohol or
drugs is not necessarily a mitigation factor; the circumstances of the case will determine
whether it is. Generally, however, once the court is satisfied that the offender was
intoxicated, his intoxication will be a mitigation factor. The reason for this is that '[liquor]
can arouse senses and inhibit sensibilities which may diminish the responsibility of the
offender'. However, it has to be shown that the intoxication actually impaired the mental
faculties of the offender; only then can his blameworthiness be regarded as diminished.
[30] These views also found expression in Director of Public Prosecutions,
Grahamstown v Mzukisi Peli, 18 a case where the accused (and respondent on appeal by
Grahamstown v Mzukisi Peli, 18 a case where the accused (and respondent on appeal by
OPP) was 24 years old and the victim six years old), in which the court held:
'It is trite, that for intoxication to be considered as a substantial and compelling circumstance in
mitigation, it must be shown that the consumption of alcohol had impaired or affected the
13 Ma/gas para 25.
14 S v Vilakazi [2008) ZASCA 87; [2008) 4 All SA 396 (SCA) ; 2009 (1) SACR 552 (SC A); 2012 (6) SA 353
(SCA).
15 Vilakazi para 58.
16 S v Ndlhovu (2) 1965 (4) SA 692 (A ) at 695C-D .
17 SS Terblanche Guide to Sentencing in South Africa 2 ed (2007) at 7.3.9.
18 Director of Public Prosecutions, Grahamstown v Peli [2018) ZASCA 40; 2018 (2) SACR 1 (SCA).
13
respondent's mental faculties or judgment and thereby diminished the respondent's moral
blameworthiness: see S v Cele 1990 (1) SACR 251 (A) at 254h-l & 255b-c; S v Makie 1991 (2)
SACR 139 (A) at 143c-d and S v Eadie 2002 (1) SACR 663 at 673j-674ftogether with the cases
mentioned therein ... That the respondent appreciated the wrongfulness of his conduct and was
accordingly able to distinguish right from wrong, but nevertheless proceeded to rape the
complainant, cannot on the facts of this case seNe to diminish his moral blameworthiness to the
extent that it may be regarded as a substantial and compelling circumstance.'19
(31] It is as well to mention that despite the minimum sentence legislation, the centrality
of proportionality in sentencing has not changed. The absence of substantial and
compelling circumstances from the personal circumstances of the appellant is not in and
of itself the end of the inquiry. A prescribed sentence cannot automatically be assumed
to be proportionate in a particular case. Disproportionate sentences are not to be imposed
as the courts are not vehicles for injustice. In S v Dodo ,20 the court held that it is incumbent
upon a court in every case, before it imposes a prescribed sentence, to assess, upon a
consideration of all the circumstances of the particular case, whether the prescribed
sentence is indeed proportionate to the particular offence. This, the court does by
considering all factors relevant to the nature and seriousness of the criminal act itself, as
well as all relevant personal and other circumstances relating to the offender which could
have bearing on the seriousness of the offence and the culpability of the offender.
(32] The aggravating circumstances were as follows: the appellant was convicted of a
very serious offence; the appellant took advantage of the complainant as she was under
the influence of alcohol; this is a gender-based offence; the appellant was a friend to the
the influence of alcohol; this is a gender-based offence; the appellant was a friend to the
complainant's boyfriend; and the psychological effect the incident had on the complainant.
I acknowledge the need for deference to the court a quo's factual findings, but this Court
is not bound by the court a quo's evaluation of evidence, regarding sentencing, especially
where the evidence shows that alcohol played a key role during the commission of the
rape incident. In my view, this Court must consider whether it should deviate from the
sentence imposed by the trial court for the reasons outlined above.
(33] Accordingly, having due regard to the aforementioned and the dictates of justice,
it is clear in my mind that the court a quo ought to have taken this aspect of alcohol use
19 Ibid para 9.
20 Dodo paras 37 and 40.
14
into account in determining a proper sentence and therefore should have deviated from
imposing the prescribed minimum sentence. I pause to mention that I have carefully
considered all the aggravating and mitigating factors for the purposes of sentence.
Accordingly, in my view, we may interfere with the sentence imposed by the court a quo.
It follows therefore that the appeal against the sentence must succeed.
Conclusion
[34] Further to this, the evidence presented before the court a quo is clear. I am
satisfied that on the conspectus of the evidence, the factual findings made by the court a
quo were correct and cannot be faulted. The court a quo was correct in finding that the
state succeeded in proving the guilt of the appellant beyond reasonable doubt. The
evidence of the appellant is untenable and ought to be rejected outright.
[35] The Honourable Magistrate, of the court a quo sent a minute to us, which I quote
herein below:
'After perusing the trial transcripts, I bring it to the Honourable Justices' attention that I have
misapplied and misdirected myself making a declaration in terms of S120(4) of the Children's Act
38 I 05 declaring the accused unsuitable to work with children and an order in terms of section 50
of act 32 I 07 (Sorma) by including the accused name in the national register. The charge did not
relate to a minor as envisaged in the sections.'
[36] The minute provided to us by the court a quo is noted. The misdirection made by
the court a quo is withdrawn from the judgment and should be ignored. Nevertheless, in
my view, it does not change the effect of the conviction by the court a quo. Counsel for
the appellant submitted that this Court should set aside the imposed sentence of 15 years
imprisonment and replace it with 8 years imprisonment and that the latter sentence be
antedated to 25 November 2024. I am inclined to agree with counsel for the appellant that
this Co urt should intervene with the sentence of the court a quo, for the reasons I have
this Co urt should intervene with the sentence of the court a quo, for the reasons I have
expressed herein above. I differ with him regarding the number of years of imprisonmen t
this Court should imposed having weighed all the factors relating to sentencing.
[37] In the circumstances, the following order is made :
1 The appeal against the conviction is dismissed.
2 The appeal against the sentence is upheld, and the sentence of 15 (fifteen) years
imprisonment is hereby set aside.
15
3 The appellant is sentenced to 10 (ten) years imprisonment.
4 The sentence is antedated to 25 November 2024.
I concur.
V -.~ =----
1 I RO BOKWA
ACTING JUDGE OF THE HIGH COURT
JUDGE OF THE HIGH COURT
Appearances
On behalf of appellant:
Instructed by:
On behalf of respondent:
P Mokoena
Legal Aid South Africa
Bloemfontein Local Office
Bloemfontein
MMM Moroka
16
Director of Public Prosecutions, Free State Division
Bloemfontein.