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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Reportable/Not Reportable
Case no: A262/2025
In the matter between:
D[...] M[...] D[...] V[...] Appellant
And
THE STATE Respondent
Neutral citation: D[...] M[...] D[...] V[...] v The State
Coram: MANGCU-LOCKWOOD J et HOLDERNESS J
Heard: 13 February 2026
Delivered: 13 February 2026
________________________________________________________________________
ORDER
________________________________________________________________________
1. In all the circumstances, the appeal against the conviction and sentence is dismissed.
________________________________________________________________________
JUDGMENT
________________________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] The harrowing series of tragedies presented by the facts of this case is inexpressible.
The complainant was 8 years old when the appellant , then 60 years old and her mother’s
live-in life-partner, started raping her. This took the form of r epeated vaginal and anal sex,
oral sex and sexualized touch of the breasts and vagina . Undeterred by his discovery of the
commencement of her menstrual period, he continued to rape her until she fell pregnant at
10.
[2] When people in the street and children at school started calling her names and
making comments that she was pregnant , the complainant did not understand what
pregnancy meant , though she was vomiting three to four times a day. It was not until a
neighbour attended at her school to report their suspicions that there was some intervention,
and the school called in her mother and directed her to take her to a Day Hospital. By then
her pregnant stomach was already visible . And by then the appellant had surreptitiously
taken her, on a few occasions, to visit what the complainant described as ‘a lady with Rasta
hair who lived in a brown building’ , who inserted some tablets inside her vagina and in her
mouth, after which the appellant told her not to tell her mother. The tablets only served to
make her drowsy.
[3] Once the pregnancy was detected, the complainant was taken away from her home,
to what would turn out to be three consecutive places of safety. It was at th e last place of
safety that she discovered she was HIV positive , and in the most cruel way, because another
girl recognized her medication and told her what it was for. Even during the trial , the social
worker testified that the complainant still did not understand the full significance of the
disease.
[4] Labour came much earlier than expected and, upon arrival at the hospital, it was too
late to deliver the complainant’s baby via caesarean section and it had to be delivered
naturally, without the administration of any pain medication, and without the presence and
guidance of her mother who could not be located for a while after losing her
accommodation with the appellant. The complainant described giving pain as the worst part
of her 10 -year-old life. A closed adoption was arranged for the baby who was taken
immediately at birth , and not unnaturally , t he complainant continues to have a profound
sense of loss of her child. She also misses living with her mother.
[5] In the series of the tragedies of this case, the complainant was too traumatized to give
oral evidence. As a result, the above evidence was relayed to the trial court by the social
worker, Captain A Lakey of the Delft FSC Unit who gave evidence with the aide of three,
successive victim impact reports that she authored after interviewing and assessing the
complainant. She must be commended for providing the Court with a comprehensive voice
to the hapless complainant.
[6] This is an automatic appeal against conviction a nd sentence in terms of section
309(1)(a) of the Criminal Procedure Act 51 of 1977 (“CPA”). The appellant was found
guilty of rape, specifically the contravention of section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, read with section 51(1) Part 1 of
Schedule 2 of Act 51 of 1997 , and was sentenced to life imprisonment by the Parow
Regional Court.
[7] The specific offence preferred against the appellant was that between 2022 and 2023,
in Delft, he unlawfully and intentionally committed an act of sexual penetration with the
complainant, who was nine years old and accordingly not of the age to give consent , by
penetrating her vagina with his penis on more than one occasion.
[8] The appellant was 60 years old at the time, and lived together with the complainant
and her mother, who was his life partner. As a result of the rape , the complainant became
pregnant at 10 years old, had a child and contracted HIV .
[9] The trial was attenuated by agreement between the State and the defence to admit the
following documentary evidence without objection : (a) the birth certificate of the
complainant, which showed her date of birth to be 15 December 2012; (b) an affidavit in
terms of section 212 of the CPA from a forensic analyst who analyzed DNA samples
collected from the complainant , her unborn foetus and the appellant, and concluded that the
probability of paternity by the appellant was 99. 99%; (c) the supporting DNA tissue
collection kits from the placenta, the complainant and the appellant.
[10] The only witness who was called to give oral evidence on behalf of the State was Dr.
Alvaro Neville Felix who examined the complainant at Karl Bremmer Hospital on 30 May
2023. He also completed a medico-legal examination report, referred to as a J88 form, and it
was admitted as part of the evidence . He concluded that the complainant, who was 10 years
old at the time of the examination , was 29 weeks and 3 days pregnant ; and that the
gestational age of the foetus was in keeping with sexual abuse inflicted in around December
2022. His evidence was further that the complainant tested positive for HIV . None of his
evidence was challenged.
[11] The appellant was the only witness to testify in support of his case , and his evidence
consisted of much irrelevant rambling. The effect of his evidence was that the complainant
and her mother conspired to seduce him by their repeated inappropriate behaviour.
Eventually, he found himself on top of the complainant who was lying on a bed naked, and
in his words, he “f**ked the child”. He later tried to retract this evidence by stating that he
did not ejaculate on the child but on ly on the sheets of the bed , whilst at the same time
stating that his sperm came out while he was on top of her, not inside her.
[12] However, the scientific evidence showed conclusively that he was the father of the
child that the complainant was to bear. As the prosecutor correctly asked him during cross
examination: “If you did not penetrate her , how did she fall pregnant?” He could not
provide an answer. The Magistrate correctly found the appellant ’s version was not
reasonably possibly true. She also correctly found that the State had established its case
beyond reasonable doubt that the appellant had unlawful sexual intercourse with a nine -year
old, who could not in law give consent to sexual interc ourse. I do not understand the
appellant to take issue with the conviction finding, since no specific ground of appeal is
raised in that regard.
[13] As for the sentence , s 51 (1), read with Part 1 of Schedule 2 of Act 105 of 1997,
provides that the offence of rape of a minor attracts a minimum sentence of life
imprisonment, unless substantial and compelling circumstances are present. The Magistrate
found that there were no subs tantial and compelling circumstances to justify a deviation
from the minimum sentence of life imprisonment.
[14] As stated in S v Malgas1:
‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection
by the trial court, approach the question of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers it. To do so would be to
usurp the sentencing discretion of the trial court. Where material misdirection by the
trial court vitiates its exercise of that discretion, an appellate Court is, of course,
entitled to consider the question of sentence afresh.’
[15] It is accordingly trite that an appellate court will not easily interfere with a sentence
and will only do so if the sentence is vitiated by irregularity, misdirection or is disturbingly
inappropriate or induces a sense of shock. 2 Or, if it appears that the trial court has exercised
its discretion in an improper or unreasonable manner.3
[16] It is also settled law that the prescribed minimum sentences should not be departed
from lightly and for flimsy reasons, and that in the absence of weighty justification, they
should be imposed for the crimes specified by the legislature. 4 Both the Constitutional
Court5 and the Supreme Court of Appeal (S CA)6 have endorsed the view that the particular
factors, whether aggravating or mitigating, should not be taken individually or in isolation
as substantial or compelling circumstances, but that it is incumbent upon a court in every
case, before it imposes a prescribed sentence, to assess, up on a consideration of all the
circumstances of the particular case, whether the prescribed sentence is proportionate to the
particular offence.
[17] It is argued on behalf of the appellant that the following should have been considered
cumulatively as substantial and compelling factors to justify deviation from the minimum
1 S v Malgas 2001 (1) SACR 469 (SCA) para 12.
2 S v Moosajee [1999] 2 All SA 353 (A), para 8.
3 S v Gerber [1998] 4 All SA 315 (NC).
4 S v Malgas 2001 (2) SA 1222 (SCA) para 25.
3 S v Gerber [1998] 4 All SA 315 (NC).
4 S v Malgas 2001 (2) SA 1222 (SCA) para 25.
5 See S v Dodo [2001] ZACC 16; 2001 (3) SA 382; 2001 (1) SACR 594 (CC) para 25.
6 S v Vilakazi 2012 (6) SA 353; 2009 (1) SACR 552 (SCA) para 15.
sentence: (a) t he age of the appellant who was 63 at the time of sentencing ; (b) t hat the
appellant fathered two children who are now adult s; (c) the appellant is a first offender with
no previous convictions ; (d) he was a law -abiding person until he was charged with this
offence; (e) he was in custody awaiting trial for a period of more than two years until
sentencing.
[18] It is important to first emphasize that the court was not required to consider the
appellant’s personal circumstances in isolation but was required to balance them against the
seriousness of the crime and the interests of the society, in what has become known as
the Zinn triad.7
[19] The seriousness of the crime committed by the appellant cannot be gainsaid. 8 He
preyed upon a vulnerable minor child i n what should have been her place of safety , the
sanctity of her home. He took advantage of the special position he held in her life .
According to the victim impact assessment reports, she referred to him as her stepfather who
bought her nice things , including ice cream and fish and chips . He was in a position of care
and trust in her life, which included taking her to school.
[20] They watched television together, which is how what may be described as grooming
started. He caused her to watch what she de scribed as ‘sex movies’, and halfway, would
have penetrative sex with her . Sometimes the sexual acts took place with her mother
sleeping in the same bed, and sometimes more than once a day. All of this occurred on
numerous occasions before she fell pregnant. The reason she did not report the matter was
because she feared that she and her mother would be rendered homeless, because her mother
was unemployed.
7 See S v Zinn 1969(2) SA 537 (A) at 540G.
8 See S v C 1996 (2) SACR 181 (CPD); S v Chapman [1997] ZASCA 45 ; 1997 (2) SACR 3 (SCA) at 5 B -E;
Tshabalala v S ; Ntuli v S (CCT323/18; CCT69/19) [2019] ZACC 48 (11 December 2019); S v Tshabalala and
another 2020 (2) SACR 38 (CC) para 63; Maila v The State [2023] ZASCA 3 (23 January 2023) para 57.
[21] Thus, the appellant’s plea for his advanced age to be considered as a substantial and
compelling factor must be considered in the light of this special position that he held in the
complainant's life . In th ose circumstances, h is age serves as an aggravating factor rather
than mitigat ion of his moral blameworthiness. Instead of acting as a protector of the
vulnerable child in his care, he acted as a predator who even told her not to tell anyone
about the abuse, and when she refused to grant him his sexual requests, he said he would no
longer buy her nice things.
[22] By contrast, the complainant’s childhood was destroyed by the appellant’s conduct.
Her family unit was also torn apart because, once her pregnancy was discovered , she was
separated from her mother, and was taken away to three successive places of safety. By the
time of sentencing she had moved to four different schools. T he overwhelming
consequences brought about by the conduct of the appellant are detailed in the victim
impact assessment report, and they include depression , a series of losses , despair, low self-
esteem, fear, trauma, disassociation, guilt , confusion shame , stigmatization, entrapment,
stomach and lower back pain . She struggles with insomnia as well as back and hip pain
caused by the fact that she had to give birth in her undeveloped body . Not to mention the
double loss of her mother’s care and the permanent loss of her baby.
[23] The fact that the appellant is a first-time offender is overshadowed by the revelation
that the appellant had repeatedly raped the minor, though admittedly, that issue did not
receive much attention until the sentencing stage. It was then that the gruesome detail of the
history of the sexual abuse was revealed during the evidence of the social worker, a s
contained in the victim assessment report. Thus , the fact that the appellant has a clean
official record does not mean he had not committed similar offences previously.
official record does not mean he had not committed similar offences previously.
[24] In any event , being a first -time offender does not affect the application of the
minimum sentence provisions in the circumstances of this case. There is nothing compelling
or substantial about the fact that the appellant did not have a previous criminal record. It is
his duty as a citizen or resident of this country to obey the law.
[25] As for the fact that the appellant has two adult children, it is not disclosed why this is
said to amount to a substantial and compelling factor given that the two children are adults
who no longer live with him , and that the appellant is accordingly not their primary
caregiver. As the SCA stated in S v Vilakazi9-
‘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.’
[26] It is also argued on behalf of the appellant that he is a candidate for rehabilitation.
However, no basis is laid for this argument. I have already dealt with the fact that his age
was an aggravating factor, and does not amou nt to sign al for rehabilitation. Instead, the
repeated nature of the offence shows a propensity to continue in his conduct.
[27] What is more, there was no sign of remorse evinced by the appellant. Not once did he
show a proper appreciation of the consequences of his actions or have a change of heart.
Instead, his evidence involved a conspiracy theory involving seduction by , amongst others,
an 8 -year-old. And, as the Magistrate correctly observed, despite the fact that th e State
an 8 -year-old. And, as the Magistrate correctly observed, despite the fact that th e State
presented DNA evidence showing that the appellant is the biological father of the
complainant’s baby, he pleaded not guilty.
9 Vilakazi v The State (576/07) [2008] ZASCA 87 (2 September 2008) para 58.
[28] In Director of Public Prosecutions, KwaZulu -Natal v Ngcobo and Others 10 the
Supreme Court of Appeal observed as follows regarding rehabilitation:
‘Traditional objectives of sentencing include retribution, deterrence and rehabilitation.
It does not necessarily follow that a shorter sentence will always have a greater
rehabilitative effect. Furthermore, the rehabilitation of the offender is but one of the
considerations when sentence is being imposed. Surely, the nature of the offence related
to the personality of the offender, the justifiable expectations of the community and the
effect of a sentence on both the offender and society are all part of the equation? Pre
and post Malgas the essential question is whether the sentence imposed is in all the
circumstances, just.’
[29] As regards the period of imprisonment spent by the appellant before sentencing, it
has been stated that there should be no rule of thumb in respect of the calculation of the
weight to be given to the period spent by an accused awaiting trial. 11 Instead, said the SCA
in Radebe v S -
‘A better approach, in my view, is that 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: whether it is proportionate to the crime committed.
Such an approach would take into account the conditions affecting the accused in detention
and the reason for a prolonged period of detention. And accordingly, in determining,
…whether substantial and compelling circumstances warrant a lesser sentence than that
prescribed by the Criminal Law Amendment Act 105 of 1997 … the test is not whether on its
own that period of detention constitutes a substantial or compelling circumstance, but
whether the effective sentence proposed is proportionate to the crime or crimes commi tted:
whether the sentence in all the circumstances, including the period spent in detention prior
whether the sentence in all the circumstances, including the period spent in detention prior
to conviction and sentencing, is a just one.’12
[30] I am accordingly of the view that the Magistrate correctly took into account and the
personal circumstances of the appellant, and assessed them cumulatively against other
considerations as she was required to do. I have found no reasons to interfere with her
conclusion that there are no substantial and compelling circumstances justifying deviation
from the prescribed sentence.
10 Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others 2009 (2) SACR 361 (SCA) para 22.
11 See S v Seboko 2009 (2) SACR 573 (NCK) para 22; Radebe v S [2013] ZASCA 31, para 13.
12 At para 14.
[31] In all the circumstances, the appeal against the conviction and sentence is dismissed.
_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
I agree
_________________________
M. HOLDERNESS
Judge of the High Court
Appearances:
For appellant: Mr. M. Strauss – Legal-Aid South Africa
For respondents: Mr. H. van As – Office of the Director of Public Prosecutions