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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DMSION - MAHIKENG
In the appeal of:
M. MOTHIBAKGWANA
and
THE STATE
Coram: Titus AJ & Zwiegelaar AJ
CASE NO: CAl0S/2018
RC06/17
Appellant
Respondent
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-down is
deemed to be 27 January 2026.
YES/NO
YES/NO
YES/NO
YES/NO
2
ORDER
1. The appeal against sentence is dismissed.
2. The sentence imposed by the court a qua on the Appellant is hereby
confirmed.
Jl.JDGMENT
TITUSAJ
[ 1] This is an appeal against sentence only. On 22 November 2017, the Appellant
was convicted in the Regional Court on one count of rape of a minor girl, aged 15
years, in contravention of Section 3, read with sections 1, 55, 56(1), 57 ,58, 59, 60
and 61, of the Criminal Law Amendment Act (Sexual Offences and Related Matters)
32 of2007 read with sections 256,257 and 281 of the Criminal Procedure Act 51 of
1977 ('the CPA'); further read with section 51 Schedule 2 of part III of the Criminal
Law Amendment Act 105 of 1997 (' Act 105 '), as amended as well as sections 92(2)
and 94 of the CPA.
[2] The trial court found that, on or about 16 December 2015, the Appellant
unlawfully and intentionally committed an act of sexual penetration of the
complainant, a girl aged 15 at the time, by inserting his penis into her vagina, without
her consent. The Appellant was sentenced to 22 years' imprisonment.
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[3] The appeal lies with leave of the trial court. The parties agreed to the disposal
of the appeal on the papers as provided for by section 19 (a) of the Superior Courts
Act1 .
[ 4] The Appellant contends that the sentence imposed ' ... evokes a sense of
shock .. .' and further that it is 'inappropriate' in the light of his personal
circumstances.
The Appropriate Sentence
[5] It is trite that sentencing falls pre-eminently within the discretion of the trial
court2. A court of appeal may only interfere where the sentencing court misdirected
itself materially, or where the sentence is disturbingly inappropriate (S v Malgas
2001(1) SACR 469 (SCA); S v Matyityi 2011 (!) SACR 40 (SCA)). It is also trite
that, in evaluating judicial discretion, an appeal court may not interfere with a
sentence simply because it would have imposed a different sentence than that
imposed by the trial court.
[ 6] If there is however a striking disparity between the sentence and that which
the appeal court would have imposed had it been the trial court, then the trial court
is at liberty to interfere with the trial court's sentencing discretion3.
1 Act No. Act 10 of 2013.
2 S v Rabie 1975(4) SA855 (A)
3 Director of Public Prosecution KZN v P 2006 (!) SACR 243 SCA
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[7] An appropriate sentence strikes a careful balance between the nature of the
crime, the personal circumstances of the accused and the interests of society4.
[8] The offence falls within Part I of Schedule 2 to the Criminal Law Amendment
Act 10 5 of 1997, which prescribes a minimum sentence of life imprisonment where
the victim is under the age of 16, unless substantial and compelling circumstances
exist.
[9] The trial court found such circumstances to be present and it accordingly
deviated from the prescribed life sentence. It imposed a 22-year term of
imprisonment, citing the gravity of the offence, the age and vulnerability of the
complainant, and the breach of trust.
Grounds of Appeal
[ I OJ The Appellant alleges that the term of imprisonment handed out to him evokes
a sense of shock and that it is inappropriate in the circumstances of the case.
Evaluation
[ 11] The trial court correctly found that the appellant's personal circumstances,
while not insignificant, did not outweigh the seriousness of the offence. The sentence
imposed reflects a measured deviation from the prescribed life term.
4 S v Zinn 1969 (2) SA 537 (A)
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[12] There is no misdirection on the part of the sentencing court. The sentence is
not startlingly inappropriate, nor does it induce a sense of shock. It is firm but fair,
and reflects the legitimate interests of society, the rights of the child victim, and the
need for deterrence. After all, in S v J ansen5, the court recognized that the:
' [ r ]ape of a child is an appalling and perverse abuse of male power. It strikes a blow at the very
core of our claim to be a civilised society .... The community is entitled to demand that those
who perform such perverse acts of terror be adequately punished and that the punishment
reflect the societal censure. It is utterly terrifying that we live in a society where children cannot
play in the streets in any safety; where children are unable to grow up in the kind of climate
which they should be able to demand in any decent society, namely in freedom and without
fear. In short, our children must be able to develop their lives in an atmosphere which behoves
any society which aspires to be an open and democratic one based on freedom, dignity and
equality, the very touchstones of our Constitution.'
[13] The Supreme Court of Appeals6 has also made it clear that sentences, for
crimes such as that which the Appellant is convicted of, must send out a clear and
consistent message that the onslaught of rape on children will not be countenanced
in any democratic society which prides itself with values of respect for the dignity
and life of others, especially our children; the most vulnerable in society. The
5 S v Jansen 1999 (2) SACR 368 (C) at 378G-379B.
6 Maila v S (429/2022) [2023] ZASCA 3 (23 January 2023) at para [60].
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imprisonment of the Appellant should sufficiently rehabilitate him if he chooses to
participate in the rehabilitation programs.
(14] The sentence imposed contributes meaningfully to restoring public
confidence in the courts' ability to respond firmly to offences of this natlll'e. It is
evident that the Regional Magistrate, in exercising her sentencing discretion, duly
considered all relevant factors necessary to arrive at an appropriate sanction. There
is no indication of any misdirection in the exercise of her sentencing powers. The
sentence handed down by the trial court serves the legitimate purposes of
punishment, encompassing rehabilitative, deterrent, preventative, and retributive
objectives.
[24] In the result:
1. The appeal against sentence is dismissed.
2. The sentence imposed by the court a quo on the Appellant is hereby
confirmed.
RR TITUS
ACTING JUDGE OF THE IDGH COURT
NORTH WEST DMSION
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I concur,
CJ ZWIEGELAAR
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DMSION
APPEARANCES:
For Appellant:
For Respondent:
Judgment Reserved:
KMMikansi
Mafikeng Justice Centre
MAHIKENG
Adv Kalakgosi
NDPP
MAHIKENG
04April 2025
Judgment Handed Down: 27 January 2026.
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