Nyoka v S (Appeal) (CA02/2023) [2026] ZANWHC 33 (19 February 2026)

Reportable: ¥ES/NO Circulate to Judges: ¥-e-S/NO Circulate to Magistrates: YES/NG
Circulate to RegjQnal Ma istrates: YES/NG
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH-WEST DIVISION, MAHIKENG)
CASE NO.: CA 02/2023 IN THE APPEAL OF:
LEBOGANG NYOKA APPELLANT
and
THE STATE RESPONDENT
ORDER
The following order is hereby made:
(i) the Appellant's appeal against his conviction in respect of counts two, six,
seven and ten is upheld and replaced with the following order: "The Appellant
is acquitted of the charges contained in counts two, six, seven and ten of
the indictment as these counts constitutes a duplication of charges aga;nst the
Appellant, if read with the contents of counts one, five and nine in respect of
which counts the Appellant 's conviction remain";
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(ii) the Appellant's appeal against his conviction in respect of counts one, three,
five, eight and ni·ne are dismissed;
(iii) the Appellant's appeal against his sentence in respect of counts one and two
of the indictment against him, is upheld and replaced with the following
sentence and order: "On count one of the indictment the Appellant is
sentenced to life imprisonment";
(iv) the Appellant's appeal against his sentence in respect of counts five, six and
seven of the indictment against him, is upheld and replaced with the following
sentence and order: "On count five the Appellant is sentenced to life
imprisonment ";
(v) the Appellant's appeal against his sentence in respect of count nine and
count ten of the indictment against him, is upheld and replaced with the
following sentence and order: "On count nine of the indictment the Appellant
is sentenced to life imprisonment";
(vi) the Appellant's appeal against his sentence in respect of counts three and
count eight of the indictment is dismissed and the sentences on these counts
as imposed by the trial court are confirmed and shall remain as ordered by the
trial court;
(vii) In terms of section 280 of the Criminal Procedure Act, Act 51 of 1977, it is
directed that the sentences imposed in respect of counts one, three, five,
eight and nine shall all run concurrently, the cumulative effect of the said
sentences being that the Appellant js effectively sentenced to life
imprisonment.
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JUDGMENT
CORAM: LAUBSCHER AJ et MORRIS AJ:
LAUBSCHER AJ:
THIS APPEAL AND THE RELEVANT BACKGROUND
1 . This appeal is against both the conviction and sentence of the Appellant as
adjudicated and imposed by the trial court, being the Regional Court, for the
Regional Division of the North-West, held at Taung on 30 August 2022.
2. The trial court convicted the Appellant on the following counts:
2.1. Count one: that the Appellant is guilty of the offence of
housebreaking with the intent to rape in that on or about 14
September 2014 and at or near Phatsima section Pampierstad in
the Regional Division of North-West, the Appellant unlawfully and
intentionally, broke into and entered the residential house of GKM
with intent to rape in contravention of section 3 of the Criminal Law
(Sexual offences and related matters) Amendment Act, Act 32 of
2007 and contravened section 3 of the Criminal Law ( Sexual
offences and related matters) Amendment Act, Act 32 of 2007 by
wrongfully and intentionally committed an act of sexual penetration
with a female person to wit, GKM (40) years old, by inserting his
penis into her vagina without her consent. In this count the
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indictment made specific reference to section 51, read with
Schedule 2 of the Criminal Law Amendment Act, Act 105 of 1997
(hereafter "the Criminal Law Amendment Act").
2.2. Count two: that the Appellant is guilty of the crime of rape in that on
or about 14 September 2014 and at or near Pampierstad in the
Regional Division of North-West, the Appellant unlawfully and
intentionally committed an act of sexual penetration with a female
person to wit, GKM (40 years), by inserting his penis into her vagina
without her consent. As with count one, the indictment made
specific reference to section 51, read with Schedule 2 of the
Criminal Law Amendment Act.
2.3. Count three: that the Appellant is guilty of the crime of assault with
intent to do grievous bodily harm, in that on or about 14 September
2014 and at or near Phatsima section Pampierstad in the District
Regional Division of North-West, the Appellant unlawfully and
intentionally assaulted GKM by hitting her with a knobkierie with the
intent of causing her grievous bodily harm.
2.4. Count four: that the Appellant is guilty of theft in that on or about
the 14 September 2014 and at near Phatsima section Pampierstad
in the Regional Division North-West, the Appellant unlawfully and
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intentionally stole 1 DVD Player valued at R1200.00 being the
property of or in the lawful possession of GKM.
2.5. Count five: that the Appellant is guilty of the offence of
housebreaking with the intent to rape in that on or about 23
September 2014 and at or near Pampierstad in the Regional
Division of North-West the Appellant unlawfully and intentionally,
broke into and entered the Residential House of HKS with intent to
rape in contravention of section 3 of the Criminal Law Act (Sexual
offences and related matters) Amendment Act. Act 32 of 2007 and
contravened section 3 of the Criminal Law (Sexual offences and
related matters) Amendment Act, Act 32 of 2007 by wrongfully and
intentionally committing an act of sexual penetration with a female
person, HKS (69 years old) by inserting his penis into her vagina
without her consent. In this count the indictment also made specific
reference to section 51, read with Schedule 2 of the Criminal Law
Amendment Act.
2.6. Count six: that the Appellant is guilty of the offence of rape in that
on or about 23 September 2014 and at or near Pampierstad in the
Regional Division of North-West, the Appellant unlawfully and
intentionally committed an act of sexual penetration with a female
person, HKS (69 years old), by inserting his penis into her vagina
without consent. This count also made specific reference to section
51, read with Schedule 2 of the Criminal Law Amendment Act.
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2.7. Count seven: that the Appellant is guilty of the offence of rape in
that on or about 23 September 2014 and at or near Pampierstad in
the Regional Division of North-West, the Appellant unlawfully and
intentionally committed an act of sexual penetration with a female
person, HKS (69 years old), by inserting his penis into her vagina
without consent. This count similarly made specific reference to
section 51 , read with Schedule 2 of the Criminal Law Amendment
Act.
2.8. Count eight: that the Appellant is guilty of theft in that on or about
14 September 2014 and at near Phatsima section Pampierstad in
the Regional Division Northwest, the Appellant unlawfully and
intentionally stole 1 Laptop computer valued at RS000.00 being the
property of in the lawful possession of HKS.
2.9. Count nine: that the Appellant is guilty of the offence of rape in that
on or about 23 September 2014 and at or near Pampierstad in the
Regional Division of North-West, the Appellant unlawfully and
intentionally committed an act of sexual penetration with a female
person, RS (09 years old) by inserting his penis into her vagina
without consent. This count also made specific reference to
section 51 , read with Schedule 2 of the Criminal Law Amendment
Act.
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2.10. Count ten: that the Appellant is guilty of the offence of rape in that
on or about 23 September 2014 and at or near Pampierstad in the
Regional Division of Northwest, the said Appellant unlawfully and
intentionally committed an act of sexual penetration with a female
person , RS (9 years old) by inserting his penis into her vagina
without consent. Again, t his count made specific reference to
section 51, read with Schedule 2 of the Criminal Law Amendment
Act.
3. Counts: (i) one and two (ii) five, six and seven and (iii) nine and ten are three
sets of multiple charges of rape in respect of the same victim and allegedly
perpetrated by the Appellant on the same day: counts one and two are in
respect of GKM (the 40 year old female), counts five, six and seven are in
respect of HKS (the 69 year old female) and counts nine and ten are in respect
of RS (the nine year old female child).
4. The charge sheet has clearly been prepared in this manner in order to allow
for the invoking of the provisions of section 51 (1) read with Part 1 of Schedule
2 ("rape" as per paragraph (a)(i) of Part 1) of the Criminal Law Amendment
Act, Act 105 of 1997 (hereafter "the Criminal Law Amendment Act"), and thus
to trigger the prescribed minimum sentence of life imprisonment.
5. The multiplicity of charges for rape ((i) counts one and two in respect of GKM,
(ii) five, six and seven in respect of HKS and (iii) counts nine and ten in respect
of RS) and the correct manner in which same stand to be dealt with in this
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matter are of importance and stand to be addressed by this Court. In this
regard the following:
5.1. The Court (Opperman J and Ismail J concurring) in the matter of
Molaza v S1 and dealing with multiple counts of rape perpetrated
by the same accused against the same victim, at para 104 stated
that: "In my view, two counts of rape are not required to trigger the
operation of the minimum sentencing regime as suggested by the
Mah/ase dictum. What is required, are two acts of rape. This is so
as Part 1 of Schedule 2 in relevant parts reads, and commences
with the word 'rape' in the singular, as follows: 'Rape ... (a) when
committed - (i) in circumstances where the victim was raped more
than once whether by the accused or by any co-perpetrator or
accomplice ... (ii) by more than one person, where such persons
acted in the execution or furtherance of a common purpose or
conspiracy; (iii) by a person who has been convicted of two or
more offences of rape or compelled rape, but has not yet been
sentenced in respect of such convictions'."
5.2. The Court proceeded to state in para 106 of the above referred to
judgment: "The difference is perhaps academic, because the result
will be the same: life imprisonment. But conceptually there is a
difference. Item (a)(i) envisages a single count and item (a)(iii)
envisages multiple counts."
(2020] 4 All SA 167 (GJ) (31 July 2020).
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2
5.3. In the matter of Tshemego y S2 this Division specifically addressed
and dealt with the issue of the multiplicity of charges of rape in
circumstances much similar to those in this matter.
5.4. In the Tshemego matter the accused was charged with " ... (8)
counts of contravening section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 ('the
SORMA') read with the sections 1, 50, 55, 56(1), 56A, 57, 58, 59,
60, and 61, further read with the provisions of Section 94, 256 and
261 of the CPA, further read with section 51(1) of the Criminal Law
Amendment Act 105 of 1997 ('the CLAA'). The state averred that
the appellant unlawfully and intentionally committed repeated acts
of sexual penetration with both victims by inserting his penis into
their vaginas without their consent and by further inflicting grievous
bodily harm on them."
5.5. The accused in the Tshemego matter raped the victims
• .. .interchangeably repeatedly while stabbing and piercing them
with a sharp object. This constituted eight (8) counts of rape in the
view of the state."
(CA30/2023) [2024] ZANWHC 308 (19 December 2024)
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5.6. The trial court proceeded to convict the accused on all eight counts
of rape. The appeal court did not leave this conviction intact and
the following quotation from the Tshemego matter in paragraphs 18
to 20 thereof are of importance and the principles as stated therein
stand to be applied in this matter as well:
"[18) The serious misdirection by court the quo on conviction is best
illustrated with reference to what this Court said in Ntandani v
S (CA61/23) [2024) ZANWHC 243 (18 September 2024), in
respect of multiple counts of rape:
'{9] It is indisputable that the appellant had committed more than
one act of sexual penetration on MMM, within the purview
of section 51(1) read with Part I of Schedule 2 of the CLAA. The
prosecutor elected to charge the appellant with two separate
counts of rape. As part of our legal landscape, the National
Prosecuting Authority is enjoined with an unfettered discretion on
the charges to be preferred against an accused. The prosecutorial
discretion on the constitution of the charges is the domain of the
National Prosecuting Authority. It is akin to the delivery of a verdict
which is the exclusive territory of the court. It is, however, the duty
of a court to prevent a duplication of convictions brought about by
an impermissible splitting of charges by the prosecution.
[10) In Lesang Samuel Modise·v S, Case No: CA 44/2021, NWHC,
delivered on 07 March 2022, the Full Bench postulated as follows:
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'[15) The formulation of the charge by the State in respect of counts
2 and 3 and the terminology used by the court a quo in sentencing
the appellant on counts 2 and 3, is problematic. The court a
quo found that counts 2 and 3 emanate from the same incldent and
ordered that the two counts be taken as one for sentence. The
appellant should not have been charged separately on counts 2
and 3, but with one count of rape. In S v Maxabaniso 2015 (2)
SA CR 553 (ECP), an analogous matter to the present appeal,
which are apposite, Plasket J said the following:
'{4] The issues that arise for determination are: (a) Whether the
appellant was adequately warned of the applicable provisions of
the Criminal Law Amendment Act 105 of 1997 relating to the
relevant applicable prescribed minimum sentence; (b) whether he
ought to have been charged with two counts of rape. rather than
one count; (c) whether the evidence establishes that he raped the
complainant more than once; and (d) whether the magistrate
misdirected himself in respect of the sentence he imposed.
{20) It was argued by Mr Renaud, who appeared for the appellant,
that he was charged with one count of rape and that the state, if it
wanted the sentence of life imprisonment to apply, ought to have
charged him with two counts of rape.
[21) I am aware of cases in which an accused has been charged
with more than one count of rape involving the same victim. S v
M and S v Senyolo are cases in point. In both cases the accused
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had raped the same victim once on two different occasions, a few
months apart in the former, and 15 days apart in the latter. Both
accused were charged with two counts of rape and, in both, the
court held that a prescribed sentence of life imprisonment applied
because the accused had raped the same victim more than once.
In S v M Satchwell J sentenced the accused to 'one term of life
imprisonment in respect of both counts one and two'. In S v
Senyolo, however, Van Eeden AJ, having found substantial and
compelling circumstances to be present, set aside the sentence of
life imprisonment imposed by the trial court and replaced it with a
sentence of 10 years' imprisonment in respect of each count.
[24] There are occasions when a person accused of raping a victim
more than once in the course of a single encounter is charged with
more than one count of rape. It appears to be practice in this
division, however, to charge such an accused with one count
of rape. In my view, in the normal course, that is the co"ect
way to charge such an accused. It avoids potential difficulties
highlighted by the sentences imposed in S v Mand S v Senyolo,
namely whether (in the absence of other factors dealt with in part 1
of sch 2) each count attracts a potential life sentence, or whether
the first rape attracts a 10-year minimum sentence while the second
attracts a life sentence, or whether both counts have to be taken
together for purposes of sentence.
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[25) In my view the legislature envisaged an accused being charged
with one count of rape if, in the course of his encounter with his
victim, he penetrates her more than once. The repeated penetration
of his victim is what aggravates the perpetration of the rape and
renders him liable for life imprisonment in respect of his entire
course of conduct: it is, in other words, the multiple acts of
penetration that attract the life sentence, as would be the case in a
so-called gang rape. One does not require item (a)(i) to meet the
concern that when an accused rapes the same victim twice with the
acts of penetration separated by, say, a week, he may be deserving
of a sentence of life imprisonment (for at least the second rape):
Even when the prescribed minimum sentence for a rape is 10 years'
imprisonment, courts have common-law powers to impose harsher
sentences, including life imprisonment, if that is called for in the
circumstances ."
(my emphasis)
{11 J As was alluded to in Madise and Maxabaniso, the present
appeal demonstrates the conundrum that an appellate court is
faced with when an accused is charged with two counts rather than
one count, in circumstances where the victim was raped more than
once. The Regional Magistrate took counts 2 and 3 together for the
purposes of sentence and imposed life imprisonment.
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[12) In OPP, Free State v Mashune (675117) [2018) ZASCA 60 (18
May 2018), Rogers AJA, in albeit in a different context, but equally
applicable in the present appeal, postulated as follows:
u[10) Strictly speaking, each count in the present case involved two
distinct offences, namely (a) housebreaking with intent to commit
rape; and (b) rape (S v Zamisa 1990 (1) SACR 22 (N) at 23d-e.)
However, since the indictment was framed as if each
housebreaking and the ensuing rape constituted a single offence,
and since the contrary was not argued, I shall approach the case
as if the respondent was convicted of two offences, not four. This
is what the court a quo did."
[13) There is clearly an impermissible splitting of charges. The
effect of any prejudice was ameliorated by the Regional Magistrate
imposing a cumulative life sentence on counts 2 and 3. It, however,
remains a salutary practice as evinced in Modise and Maxabaniso,
that in circumstances analogous to the present matter, that the
prosecution avoids an impermissible splitting of charges, and that
judicial officers remain alive to avoiding a consequent dupfication
of convictions.'
[19) The conviction of the appellant on the eight (8) counts of
contravening section 3 of SORMA undoubtedly impugns the
principle of duplication of convictions. The appellant should have
been convicted on counts 1 and 5, of two (2) counts of contravening
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section 3 of SORMA read with section 51 (1) and Part I of Schedule
2 of the CLAA, which provides the following jurisdictional facts:
"Rape-
(a) when committed -
(i) in circumstances where the victim was raped more than once
whether by the accused or by any co-perpetrator or accomplice : ..
(c) Involving the infliction of grievous bodily harm."
[20] The appellant should have been acquitted on counts 2 to 4 and
6 to 8. To this extent, the appeal against conviction on counts 2 to
4 and 6 to 8 is upheld. n
5. 7. One need not say more, the principles expressed by the court in
the Tshemego matter are clear and stand to be followed. In this
matter the above referred to principles find application in respect
of:
5.7.1. count two, which comprise a splitting of the rape
charge as per count one, in respect of GKM;
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5.7.2. counts six and seven, which comprise a splitting of
the rape charge as per count five, in respect of HKS;
and
5.7.3. count ten, which comprise a splitting of the rape
charge as per count nine, in respect of GKM.
6. In respect of counts one, two, five, six, seven, nine and ten, the contents of
these counts as set out in the charge sheet expressly refer to the provisions
of section 51 read with Schedule 2 of the Criminal Law Amendment Act. It
was accordingly at all times known to the Appellant and his defence that the
Respondent was relying on the provision of section 51 read with Schedule 2
of the Criminal Law Amendment Act in respect of the said charges.
7. The Appellant pleaded not guilty to all the counts levelled against him and
elected to give no plea explanation.
8. The matter proceeded to trial. The trial court found the Appellant guilty on all
the counts levelled against him, except for count four.
9. The trial court sentenced the Appellant as follows :
11 . 1 count one and count two together: life imprisonment;
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11.2 count three: five years imprisonment, which is to run concurrent
with the sentence in counts one and count two;
11.3 count five and six together: life imprisonment;
11.4 count seven: life imprisonment;
11.5 count eight: three years imprisonment, which is to run concurrent
with the sentence in counts five and six;
11 .6 count nine: life imprisonment;
11.7 count ten: life imprisonment; and
11.8 the Appellant was also declared unfit to possess a firearm in terms
of the provisions of section 103( 1 ) of the Firearms Control Act, Act
60 of 2000.
10. From the contents of the record in this appeal, it is evident that the trial court
in imposing the sentences of life imprisonment in respect of counts one, two,
five, six, seven, nine and ten did so in terms of the provisions of section 51 ( 1)
and Part 1 of Schedule 2 of the Criminal Law Amendment Act.
11. In terms of the provisions of section 309(1 )(a) of the Criminal Procedure Act,
the Appellant is entitled to an automatic right of appeal once the trial court has
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imposed a sentence of life imprisonment. This appeal accordingly comes
before this Court by virtue of the automatic right of appeal.
12. The Respondent is opposing the Appellant's appeal and the Respondent
delivered heads of argument in this appeal, the contents of which assisted this
Court in the adjudication of the appeal.
13. The Appellant elected not to deliver heads of argument in the appeal.
14. The Appellant in this appeal was represented by Adv Nyoka, and the
Respondent was represented by Adv Phetlhu of the office of the Director of
Public Prosecutions.
THE GENERAL PRINCIPLES APPLICABLE TO AN APPEAL AGAINST
CONVICTION:
15. It is important to have regard to and set out the following principles which a
court of appeal must observe and apply when an appeal is adjudicated:
3
15.1. In the matter of R v Dhlumayo and Another3 the Appeal Court {as it
was then known) stated:
"The trial court has the advantages, which the appeal judges do not
have, in seeing and hearing the witness being steeped in the
atmosphere of the trial. Not only has the trial court the opportunity
1948 (2) SA 677 (A) at 705.
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4
5
6
7
of observing the demeanour, but also their appearances and whole
personality. This should not be overlooked".
15.2. In the matter of A M and Another v MEC Health, Western Cape4
the court referred to the matter of ST v CT5 and reiterated the
following "trite principles" as reaffirmed by the Constitutional Court:
"In Makate v Vodacom (Pfy) Ltcl6 the Constitutional Court,
reaffirmed the trite principles outlined in Dhlumayo, quoting the
following dictum of Lord Wright in Powell and Wife v Streatham
Nursing Home": 'Not having seen the wftnesses puts the appellant
judges in a permanent position of disadvantage against the trial
judges, and, unless it can be shown that he has failed to use or has
palpably misused his advantage, the Higher Court ought not to take
the responsibility of reversing conclusions so arrived at, merely on
the result of their own comparisons and criticisms of the witnesses
and of their own view of the probabilities of the case".
15.3. A court of appeal can only reject the trial court's assessment of the
evidence if the court of appeal is convinced that the trial court's
assessment of the evidence was wrong. If the appeal court is in
doubt, the trial court's judgment must remain in place.7
2021 (3) SA 337 (SCA) at para [8].
2018 (5) SA 479 (SCA) para [26).
2016 (4) SA 121 (CC).
s v Robinson 1968 (1) SA 666 (A) at 675 H.
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8
9
10
11
15.4. The appeal court must be careful in making decisions, which are
purely based on paper and representations in court without the
presence of the parties in the actual case.8
15.5. The above referred to principles were stated in a similar vein in the
matter of S v Kebana9 as follows:
"It can hardly be disputed that the magistrate had advantages which
we, as an appeal court, do not have of having seen, observed and
heard the witnesses testify in his presence in court. As the saying
goes, he was steeped in the atmosphere of the trial. Absent any
positive finding that he was wrong, this court is not at liberty to
interfere with his findings".
15.6. In Khoza v s10 it was confirmed that a " .. . court of appeal is not at
liberty to depart from the trial court's findings of fact and credibility
unless they are vitiated by irregularity, or unless an examination of
the record reveals that those findings are patently wrong."
15.7. Ponnan JA in the matter of S v Monyane and Others11 confirmed
the following regarding the powers of a court of appeal:
Bernert v ABSA Bank Ltd 2011 (3) SA 92 CC at para [1 06].
Sy Kebana (2010) 1 All SA 310 (SCA} para [12].
(A222/2022) [2023) ZAGPPHC 1122 (8 September 2023} at para [16].
2001 (1) SACR 543 (SCA) at para 15 and also see S v Francis 1991 (1) SACR 198
(A} at 198 J - 199 A.
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"This court's powers to interfere on appeal with the findings of fact
of a trial court are limited ... In the absence of demonstrable and
material misdirection by the trial court, its findings of fact are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong (S v Hadebe and Others
1997 (2) SACR 641 (SCA) at 645 e-f)."
16. In dealing with the Appellant's appeal against conviction this Court's must
have regard to the following principles and methods of assessing the evidence
before the trial court:
12
18.1 It is trite that the onus of proof rests with the Respondent to prove
the guilt of the Appellant beyond reasonable doubt. In the matter
of Robinson and Others v S12 the court stated the following in this
regard:
"It is clear from the record that there are two conflicting versions on
how the events unfolded on the day in question. The versions are
completely different from each other. The second question which
needed to have been considered by the trial court was whether on
the totality of the evidence it can be said that the State had proved
its case beyond any reasonable doubt. It is trite that in criminal
cases the onus rests on the State to prove its case against the
(AR18/2017 ) (2018) ZAKZPHC 22 (25 May 2018)at para [11).
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13
14
15
Appellant beyond reasonable doubt. In S v Van der Meyden13 the
test is set out as follows: 'The onus of proof in a criminal case is
discharged by the State if the evidence establishes the guilt of the
Appellant beyond reasonable doubt. The corollary is that he is
entitled to be acquitted if it is reasonably possible that he might be
innocent (see, for example R v Difford 1937 AD 370 at 373 and
383)."'
18.2 If the Appellant's version is only reasonably possibly true, he or she
would be entitled to an acquittal. The Supreme Court of Appeal in
the matter of Shackle v S14 stated:
"The court does not have to be convinced that every detail of an
Appellant's version is true. If the Appellant's version is reasonably
possibly true, in substance, the court must decide the matter on
acceptance of that version. Of course, it is permissible to test the
Appellant's version against the inherent probabilities; but it cannot
be rejected merely because it is improbable. It can only be rejected
on the basis of inherent probabilities if it can be said that it will be
so improbable that it cannot be reasonably possibly true".
18.3 In the matter of Sy Munvaj15 the court stated:
1999 (1) SACR 447 (W) at 448 F-G.
2001 (1) SACR 279 (SCA) at 288 E-F.
1988 (4) SA 712 at 915 G.
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16
17
"A court must investigate the defense case with the view of
discerning whether it is demonstratable false or inherently so
improbable as to be rejected as false".
18.4 The Supreme Court of Appeal in the matter of S v Chabalala 16
stated:
• The correct approach is to weigh up all the elements which points
towards the guilt of the Appellant against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabi/Wes on
both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the State as to exclude any
reasonable doubt to the Appellant's guilt. The result may prove that
one scrap of evidence or one defect in the case for either party
(such as failure to call a material witness concerning an identity
parade) was decisive but that can only be on an ex post facto
determination and a trial court (and counsel) should avoid the
temptation to latch onto one (apparently) obvious aspect without
assessing it in the context of the full picture in evidence."
18.5 In the matter of S v Sjthole and Others 17 it was succinctly stated:
2003 (1) SACR 134 (SCA) at page 140 A-B.
1999 (1) SACR 585 W at 590.
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18
"There is only one test in a criminal case and that is whether the
evidence establishes the guilt of the Appellant beyond reasonable
doubt. The corollary is that the Appellant is entitled to an acquittal
if there is a reasonable possibility that there is an ;nnocent
explanation which he has proffered might be true".
18.6 In S v Molaza18 the court stated and confirmed the following test:
"The proper test is that an Appellant is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is appropriate to the application of that test in any particular
case will depend on the nature of the evidence that the court has
before it. What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict or to acquit)
must account for all the evidence. Some of the evidence might be
found to be false; some of it might be found to be unreliable; and
some of it might be found to be only possibly false or unreliable, but
none of it may be simply ignored."
Supra at para (45).
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19
20
21
18. 7 Addressing the concept of "reasonable doubt" the Appeal Court (as
it was then known) in the matter of R v Mlambo19 started:
"In my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an Appellant. It
is sufficient for the Crown to produce evidence by means of which
such a high degree of probability is raised that the ordinary
reasonable man after mature consideration comes to the
conclusion that there exists no reasonable doubt that the Appellant
has committed the crime charged. He must in other words, be
morally certain of the guilt of the Appellant. An Appellant's claim to
the benefit of the doubt that may be said to exist must not be
derived from speculation but must rest upon a reasonable and solid
foundation created either by positive evidence or gathered from
reasonable influences which are not in conflict with, or outweighed
by the proved facts of the case."
18.8 In the matter of S y Munyai20 the court stated that the above
referred to approach was confirmed by the Supreme Court of
Appeal in the matter of S v Phallo and Others21 referring to it as a
"classic decision". The SCA went on to state that the approach of
our law as represented by the said judgment corresponds with that
1957 (4) SA 727 (A) at 738 A-C.
1988 (4) SA 712 at 915 G.
(1999) (2) SACR 558 (SCA) at 5629 to 563e.
Page 25 of72

22
adopted and stated by the English Courts. Olivier JA in the SCA
went on to quote from Miller v Minister of Pensions [1937) 2 All EL
272 (KB) wherein the following was stated:
"The evidence must reach the same degree of cogency as required
in a criminal case before an Appellant person is found guilty. That
degree is well settled. It need not reach certainty, but must carry a
high degree of probability. Proof beyond reasonable doubt does
not mean proof beyond a shadow of a doubt. The law would fail to
protect the community if it admitted fanciful possibilities to deflect
the cause of justice. If the evidence is so strong against a man to
leave only a remote possibility in his favour, which can be
dismissed with a sentence "of course it is possible, but not in the
least probable", the case is proved beyond reasonable doubt, but
nothing short of that will suffice."
18.9 The above referred to measurement must be applied by having
regard to the general principle in evaluating evidence in a criminal
case. This principle was stated in the matter of S v van der
Meyden22 to which reference was already made in a quote above,
as follows:
"The onus of proof in a criminal case is discharged by the State. If
the evidence establishes the guilt of the Appellant beyond
Supra at 448 F-H.
Page 26 of72

23
reasonable doubt. The corollary is that he is entitled to be acquitted
if it is reasonably possible that he might be innocent (see for
example, R v Difford 1937 AD 370 at 373 and 383). These are not
separate and independent tests, but the expression of the same
test when viewed from the opposite perspective. In order to
convict, the evidence must establish the guilt of the Appellant
beyond reasonable doubt which will be so only if there ;sat the
same time no reasonable possibility that an innocent explanation
which has been put forward might be true. The two are
inseparable, each being the logical corollary of the other ... in
whatever the form the test is expressed, it must be satisfied upon a
consideration of all the evidence. A court does not look at the
evidence implicating the Appellant in isolation in order to determine
whether there is proof beyond reasonable doubt and so too, it does
not look at the exculpatory evidence in isolation in order to
determine whether it is reasonably possible that it might be true. H
18.10 The evaluation of evidence in a criminal trial comprises of the
evaluation of the "mosaic of evidence as whole" as aptly stated in
the matter of Khumalo v S 23 as follows:
(723/2020) [2022] ZASCA 39 (4 April 2022) at para [19] and also see R v Blom 1939
AD 188 at 202, Cornick and Another v S 2007 (2) SACR 115 (SCA) at para 42, S v
Van den Meyden supra at 449d-e, cited with approval in S v Van Aswegen 2001 (2)
SACR 97 (SCA) at 101a-f.
Page 27 of 72

"Considering all the circumstances of this case, I am of the view
that the evidence tendered by the State weighs so heavily as to
exclude any reasonable doubt about the applicant's guilt.
Expressed differently, the mosaic of the evidence as a whole is,
beyond reasonable doubt, inconsistent with the applicant's
innocence. The inescapable inference is that the applicant was the
aggressor on the night of the incident; that he shot at the
complainant, chased him into a yard, fired more shots at the
complainant and then robbed him of his money."
THE GENERAL PRINCIPLES APPLICABLE TO AN APPEAL AGAINST
SENTENCE:
17. First and foremost, in the adjudication of an appeal against sentence this Court
must have regard to the general and overarching principles which have been
laid down in this regard by the Supreme Court of Appeal. These are the
following:
19 .1 An appeal court must be loath to interfere with the sentence of a
trial court. As far back as 1920, the Appellate Division (as it was
then known) in the case of R v Maphumulo and Others24 stated
that:
24 1920 AD 56 at 57.
Page 28 of 72

25
26
'7he infliction of punishment is pre-eminently a matter for the
discretion of the trial Court. It can better appreciate the atmosphere
of the case and can better estimate the circumstances of the locality
and the need for a heavy or light sentence than an appellate
tribunal. And we should be slow to interfere with its discretion."
19.2 In S y Barnard25 the Supreme Court of Appeal stated: "A court
sitting on appeal on sentence should always guard against eroding
the trial court's discretion .. . and should interfere only where the
discretion was not exercised judicially and properly. A misdirection
that would justify interference by an appeal Court should not be
trivial but should be of such a nature, degree or seriousness that it
shows that the court did not exercise its discretion at all or
exercised it improperly or unreasonably."
19.3 The above quoted phrase succinctly states the general and
overarching principle which must be adopted by this Court in the
adjudication of appeals in respect of sentence and hence in this
appeal as well.
19.4 In S v Hewitt,26 Maya DP held that: "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
2004 ( 1) SACR 191 (SCA} at para (9).
2017 (1) SACR 309 (SCA).
Page 29 of72

27
28
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 penafty 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 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. "27
19.5 In S v Bogaards,28 Khampepe J in the Constitutional Court held the
following, that:
"It can only do so [i.e. interfere with the sentence imposed] where
there has been an irregularity that results in the 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."
At paragraph [8].
2013 (1) SACR 1 (CC) at para [41].
Page 30 of 72

19.6 An appeal court must be loath to interfere with the sentence of a
trial court. As far back as 1920, the Appellate Division (as it was
then known) in the case of R y Maphumulo and Others29 stated
that:
18. Consequently, the court in the present matter can only interfere with the
sentence where the trial court's exercise of its discretion was patently
incorrect. The sentence must otherwise be left undisturbed.
19. This principle was also echoed by and phrased by Du Toit30 as follows: "The
sentence will not be altered unless it is held that no reasonable court ought to
have imposed such a sentence, or that the sentence is totally out of proportion
to the gravity or magnitude of the offence, or that the sentence evokes a
feeling of shock or outrage, or that the sentence is grossly excessive or
insufficient, or that the trial judge had not exercised his discretion properly, or
that it was in the interest of justice to alter it. '131
20. The trial court " ... enjoys pre-eminent discretion and the court of appeal will not
lightly interfere with the exercise of same. '132 A court of appeal will not interfere
29
30
31
32
1920 AD 56 at 57.
Commentary on the Criminal Procedure Act (Jutastat, 31 January 2021) at 30-41.
Also see s v Fhetani 2007 (2) SACR 590 (SCA), Director of Public Prosecutions, KwaZulu-Natal y P 2006 (1) SACR 243 (SCA), Sy Anderson 1964 (3) SA 494 (A);
Nevjlimadi v S (545/13) [2014] ZASCA 41 (31 March 2014) and S y Asmal (20465/14)
[2015] ZASCA 122 (17 September 2015).
Gqika v S (CA&R 112/2021) [2022] ZAECGHC 15 (1 March 2022) at para [20).
Page 31 of 72

lightly with the trial court's exercise of its discretion.33 In S v Sinqh34 Tshiqi JA
held that: "The task of imposing an appropriate sentence is in the discretion of
the trial court. A court of appeal may only interfere if the sentence is
shockingly inappropriate."
21. In the matter of Chitumbura and Another y S35 the court quoted the above
referred to phrase from du Toit with approval and proceeded to referred to the
Supreme Court of Appeal matter of S v Kgosimore36 and stated the following:
"Regard may be had also to the judgment of Scott, JA in S v Kgosimore,
1999(2) SACR 238 (SCA), relied on by the State, where his lordship held that
if the discretion of the trial court was properly and reasonably exercised, there
was no scope at all for interference in the sentence. This collection of
expressions of resistance to interference in lower court sentencing
underscores just how jealously our judicial hierarchy protects the prerogative
below, and it is difficult to add to it."
22. The court in the matter of Vose and Another v S37, in paragraphs 20 to 27,
provides a summary of the relevant factors regarding the "test on appeal in
relation to sentence" and the court also dealt with the application of the
provisions of section 51 of the Criminal Law Amendment Act and the
prescribed minimum sentences in terms thereof:
33
34
35
36
37
See Sy Rommer 2011 (2) SACR 153 (SCA), Sy Hewitt 2017 (1) SACR 309 (SCA)
and S v Ljvan(e 2020 (2) SACR 451 (SCA}.
2016 (2) SACR 443 at para [23].
(A190/201) [2017] ZAGPJHC 274 (14 September 2017) at para [9] and [10).
1999(2) SACR 238 (SCA).
2022 (2) SACR 603 (WCC).
Page 32 of72

"20. The test on appeal in relation to sentEmce is 'whether the trial court
misdirected itself by the sentence imposed or if there is a disparity
between the sentence of the trial court and the sentence which the
Appellate Court would have imposed had it been the trial court that
it so marked that it can properly be described as shockingly,
startling or disturbingly inappropriate' (S v Van de Venter 2011 (1)
SACR 238 (SCA) at para [14]).
21. Sentencing is about achieving the right balance between the crime,
the offender and the interests of the community (S v Zinn 1969 (2)
SA 537 (A) at 540G-H). A court should, when determining
sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements in order to ensure that
one element is not unduly accentuated at the expense of and to the
exclusion of the others (see S v Banda 1991 (2) SA 352 (BG) at
355A).
22. The question is essentially whether, on a consideration of the
particular facts of the case, the sentence imposed is proportionate
to the offence, with reference to the nature of the office, the
interests of society and the circumstances of the offender.
23. In S v Pi/lay 1977 (4) SA 531 (A) at 535E-F the Appellate Division
(as it then was) held that the word "misdirection" simply means an
error committed by the court in determining or applying the facts for
Page 33 of 72

assessing the appropriate sentence. As the essential enquiry on
appeal against sentence is not whether the sentence was right or
wrong, but whether the court that imposed it exercised its discretion
properly and judicially; a mere misdirection is not by itself sufficient
to entitle the appeal court to interfere with the sentence. The
misdirection 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 discretion on sentence.
24. In the present matter the appellants, broadly, contend as follows:
a. The regional magistrate erred in insufficiently taking into
account their personal circumstances, and that they
were relatively young at the time of the commission of
the offences.
b. The regional magistrate erred in not sufficiently taking
into account the fact that the appellants were first
offenders.
c. The regional magistrate erred in not taking into account
the time spent in custody prior to the finalisation of the
trial.
d. The appellants did not indicate in their heads of
argument what they regarded as an appropriate
Page 34 of 72

sentence in the circumstances. Counsel, upon being
questioned in this respect, submitted that a period of 20
years would be appropriate.
26. In the present matter the prescribed minimum sentence for the rape
of a person more than once by the Appellant, and for the rape of a
person under the age of 16 years, is life imprisonment. Section
51(1) is peremptory, and gives no discretion to a Court to deviate
therefrom in the absence of substantial and compelling
circumstances indicating that a lesser sentence is warranted.
27. In S v Ma/gas 2001 (1) SACR 469 (SCA) at para {25) the Court
provided guidelines to be followed in determining whether
substantial and compelling circumstances exist to justify the
departure from the prescribed sentence. The Court stated, inter
alia, that:
a. Courts are required to approach the imposition of
sentence conscious that the legislature has ordained life
imprisonment as the sentence that should ordinarily and
in the absence of weighty justification be imposed for
certain crimes.
b. Unless there are, and can be seen to be, truly convincing
reasons for a different response, the crimes in question
Page 35 of 72

are therefore required to elicit a severe, standardised
and consistent response from the courts.
c. The specified sentences are not to be departed from
lightly and for flimsy reasons. Speculative hypotheses
favourable to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation, and
marginal differences in personal circumstances or
degrees of participation between co-offenders are to be
excluded.
d. All factors traditionally taken into account in sentencing
continue to play a role. None is excluded at the outset
from consideration in the sentencing process.
e. The ultimate impact of all the circumstances relevant to
sentencing must be measured against the composite
yardstick ("substantial and compelling'
1
} and must be
such as would cumulatively justify a departure from the
standardised response that the legislature has
ordained."
THE EVIDENCE BEFORE THE TRIAL COURT
23. Having regard to the above set out principles, this Court must accordingly
proceed to consider the contents of the evidence adduced on behalf of both
the Respondent and the Appellant during the trial.
Page 36 of 72

24. During the trial of the matter the Respondent adduced the evidence of the
following witnesses:
24.1.
24.2.
24.3.
24.4.
24.5.
24.6.
24.7.
24.8.
24.9.
24.10 .
24.11.
24.12.
GKM (the complainant on count 1 to 4 );
Moses Legogang T esho;
HKS (the complainant on count 5 to 8);
RS (the complainant on count 9 and 1 0);
Emily Lulama Montsiwa;
Sidwell Dastile;
Jacob Johannes Nortje;
Artisan George Nkloe;
Michael Baton;
Kesikang Vincent Lehihi;
Tanya Fourie;
Olebogeng Moilwa
25. It is important to note that the Appellant elected not to testify in his own
defence. To remain silent is of course the Appellant's right but that being said
the dictum of the Constitutional Court, in the matter of S v Boesak38._ the
following was held pertaining to an accused person's right to remain silent:
38
"The right to remain silent has application at different stages of a criminal
prosecution. An arrested person is entitled to remain silent and may not be
compelled to make any confession or admission that could be used in
2001 (1) SA 912 (CC) at para 24.
Page 37 of 72

evidence against that person. It arises again at the trial stage when an
accused has the right to be presumed innocent, to remain silent, and not to
testify during the proceedings. The fact that an accused person is under no
obligation to testify does not mean that there are no consequences attaching
to a decision to remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent in the face of such
evidence, a court may well be entitled to conclude that the evidence is
sufficient in the absence of an explanation to prove the guilt of the accused.
Whether such a conclusion is justified will depend on the weight of the
evidence. What is stated above is consistent with the remarks of Mada/a J,
writing for the Court, in Osman and Another v Attorney-Genera/, Transvaal,
when he said the following: 'Our legal system is an adversarial one. Once the
prosecution has produced evidence sufficient to establish a prima facie case,
an accused who fails to produce evidence to rebut that case is at risk. The
failure to testify does not relieve the prosecution of its duty to prove guilt
beyond reasonable doubt. An accused, however, always runs the risk that,
absent any rebuttal, the prosecution's case may be sufficient to prove the
elements of the offence. The fact that an accused has to make such an
election is not a breach of the right to silence. If the right to silence were to be
so interpreted, it would destroy the fundamental nature of our adversarial
system of criminal justice. ,n
26. Numerous exhibits were also admitted into evidence during the trial. Most
notably all the chain evidence regarding the taking, securing, analysing and
outcome of forensic evidence. It is important to note that the Appellant did not
Page 38 of72

object to or challenge the admission of the DNA evidence during the trial. The
relevance of this will become evident later. As will also be evident
hereinbelow, the forensic DNA evidence in this matter played a critical role in
the trial court proceedings.
27. Counts 1 to 4 of the indictment relates to the complainant GKM, a woman who
was 40 years old at the time of the commissioning of the crimes in the
indictment. Count 5 to 8 of the indictment relates to the complainant HKS, a
woman who was 69 years old at the time of the commissioning of the crimes
in the indictment. Count 9 and 10 of the indictment relates to the complainant
RS, a female child who was 9 years old at the time of the commissioning of
the crimes in the indictment.
28. The following is a brief summary of the testimony adduced by the Respondent
before the trial Court:
28.1 . The victim GKM testified that during the early hours on 15
September 2014 and whilst she was asleep in her house she heard
a noise inside the house, and she armed herself with a stick. It was
dark inside the house. There was a perpetrator in the house. The
perpetrator accosted her, grabbed the stick from her and hit her on
the left side of her head with the stick.
28.2. The perpetrator pushed her into a bed in a room in the house (not
her bedroom) and proceeded to rape her by being on top of her.
Page 39 of 72

The perpetrator then dismounted her, turned her around and raped
her again from behind and ejaculated. She lost consciousness.
28.3. After she regained consciousness, she went outside and ran to her
neighbours where she reported that she has been raped. The
perpetrator left his cap at her place, and she gave that cap to the
police officer who attended the scene.
28.4. GKM sustained serious injuries on her right eye and to the left side
of her head from the assault with the stick. She lost her sight in her
right eye. She could not identify the perpetrator who attacked and
raped her. Her DVD player was also stolen.
28.5. She was examined by a doctor at the Taung Hospital where swabs
were taken from her private parts and her underwear was also
bagged and retained.
28.6. Lebogang Tesho testified that at about 03:00 on 15 September
GKM arrived at his place crying. She had a head injury, and she
reported that she had been raped by an unknown person.
28.7. The victim HKS testified that she is 69 years old and on the night
of the 23 September 2014, herself and RS, her granddaughter,
were in their house, they put the lights off and went to sleep. HKS
was awakened by hearing RS saying, "I am dying". Now the lights
were on in the house and HKS went to RS's room where she
Page 40 of 72

encountered a man wearing a balaclava, having a knife on his hand
threatening to kill her.
28.8. The perpetrator caused her to lie on her stomach and cover RS
with a blanket. He then raped her. The perpetrator then also raped
RS in her presence. After raping RS, the perpetrator raped HKS
again. The perpetrator stole a laptop and HKS's purse, containing
R30.
28.9. After the perpetrator left RS went to her uncles' (Tebogo and
Bafana) room outside the house and reported the incident to them.
28.10.
28.11 .
28.12.
The police took HKS and RS to the police station and then to the
hospital in Hartswater. At the hospital in Hartswater HKS and RS
were examined and their underwear were retained.
RS, who was nine years old at the time of the incident, testified
through the services of an intermediary that on the night in question
she went to sleep. Whilst she was sleeping, she felt her mouth
being blocked and she tried to scream. Her mouth was blocked by
a man who threatened to kill her with a knife.
Her grandmother HKS then came into the room. The perpetrator
was wearing a balaclava, and she saw how he proceeded to rape
her grandmother.
Page 41 of 72

28.13.
28.14.
28.15.
28.16.
28.17.
After the perpetrator raped her grandmother, he also raped her.
When he finished raping her, he again raped her grandmother. The
perpetrator then returned to her and put his penis in her anus, again
raping her.
Neither HKS, nor RS could identify the perpetrator. RS also
confirmed that she was examined at the Hartswater Hospital.
Emily Lulama Montsiwa testified that she is a police constable and
on 24 September 2014 she took HKS and RS, two rape victims to
be examined by a medical doctor. She secured two crime kits
which contained evidence taken from the two victims (D1 and D7).
D1 is an evidence collection of adult sexual kit with serial number
PAD000475952 and D7 is a paediatric sexual kit number
PAD000658066.
This witness handed the two crime kits to the investigating officer
Sergeant Dastile. Sergeant Dastile testified that he received the
two crime kits from Constable Montsiwa and they were marked D1
and D7 and he proceeded to book the crime kits into the SAP13
storeroom, where from Sergeant Fourie would dispatch them to the
forensic laboratory.
Warrant Officer Jacob Johannes Nortje testified that he is a police
officer with 31 years' experience and is attached to the child
protection and sexual violence unit. On 9 October 2014 he took the
Page 42 of72

39
28.18.
28.19.
28.20.
Appellant to a medical doctor in order to obtain blood samples from
the Applicant. The Applicant was in the custody of the SAPS in
Pampierstad for being already arrested on another unrelated case.
Nortje was requested by the trial court to specifically confirm this
fact.39 During the cross examination of Nortje it was not disputed
that the Appellant was under arrest at the time when the blood
sample was taken from him.
The sample containing the Appellant's specimen had the number
06D4AB4201 . He handed the sample kit to Sargeant Sehako who
was the investigating officer in Pampierstad CAS 65/09/2014 (the
docket of the rape crime committed against HKS and RS).
At the time when the sample was taken the Appellant did not object
to the sample being taken and in fact signed the following consent
form for the taking of the sample, which reads: "I understand that I
give consent for the collection of reference sample. The obtained
DNA profile of the collection sample may be stored in a conf;denUal
forensic data DNA database. All information submitted will be
treated as highly confidential and for sole purpose of criminal
investigation."
The Appellant did not object to this document being handed into
evidence, nor did the Appellant object to admissibility into evidence
See the provisions of section 37(2) of the Criminal Procedure Act, Act 51 of 1977.
Page43 of72

28.21 .
28.22.
28.23.
of any of the DNA evidence ( or its resultant consequences)
obtained during the taking of the blood sample from him.
Artisan George Nkloe testified that he is employed by the SAPS
and he has 32 years' experience. On 15 September 2014 he was
on duty when he was informed about a rape case and that the victim
was at the police station. The v ictim was GKM and the docket
number of the case was CAS39/9/2014. After interviewing her he
took her to the Taung Hospital to be examined by the doctor.
The doctor handed him the crime kit with evidence obtained from
GKM and he booked the crime kit into the SAP13 holding facility.
He also later booked the crime kit out of the SAP 13 facility and
handed it to Sergeant Fourie, who took it to forensic for analysis.
Tanya Fourie testified that she is a police officer and that she
handed the evidence collected in the GKM case under CAS
39/09/2014 and CAS 65/09/2014 to Sergeant Mohilwa for him to
take it to the forensic unit in Cape Town. She testified that 27
September she handed the crime kit in CAS65/9/2014 with seal bag
number PAD00475958 to Mohilwa, t o take those samples to
forensics at Cape Town. She testified that the crime kit in
CAS39/9/2014 and with the seal bag number D4C8456AB also was
handed to Mohilwa, to deliver same to forensics.
Page 44 of72

28.24.
28.25.
Warrant Officer Michelle Baard testified that she is a member of the
SAPS employed at the Forensic Science based in Plattekloof. She
has qualifications and experience in interpreting DNA results and
reporting on same. She said she is the one who analysed and
made the report in the sample in CAS39/9/2014 and on
CAS65/9/2014. She described the procedure on receipt of sample
from police station and that they are allocated a unique number
when they arrive at the forensic laboratory. The unique number
for CAS39/9/2014 (the CAS number of the GKM Case) is
185712/14 and for CAS65/9/2014 (the CAS number of the HKS and
RS case) it is 192442/14.
She testified that the Appellant's DNA profile ( obtained from the
blood sample provided by the Appellant as referred to above and
with number the number 06D4AB4201 MX) is matched with the
DNA found:
28.25.1.
28.25.2.
in the cap which the perpetrator left behind at
GKM's house and which was secured by the SAPS
with seal PA4000880055 (see the evidence of
Sergeant Lehihi below), after GKM's rape of GKM;
in the DNA sample taken from GKM's vulva to the
extent of" .... the most conservative occurrence for
all possible contributors to the mixture DNA result
for the vulva swap 13DAA 1186 ("GM")
Page 45 of72

28.26.
28.27.
28.25.3.
28.25.4.
[Pampierstad GAS 39/09114] is 1 person in every
230 000 people ... ";
in the DNA sample taken from GKM's underwear
to the extent that " .. . the most conservative
occurrence for this DNA result is 1 person in 660
billion in every people ... n;
in the DNA sample taken from RS's underwear to
the extent that " ... the most conservative
occurrence for this DNA result is 1 person in 660
billion in every people ... "
The affidavit and the forensic DNA report compiled by this witness
was handed in as Exhibit "I" before the trial court. It forms part of
the record before this Court.
Kesikang Vincent Lehihi testified that he is a police officer holding
the rank of Warrant Officer and that he compiled the photo-album
in the in Pampierstad CAS 39/09/2014 (the matter of GKM) which
handed into evidence as Exhibit "R" and which inter alia shows the
injuries sustained by GKM. This witness also compiled a photo
album in the Pampierstad CAS 65/09/2014 (the docket of the rape
crime committed against HKS and RS) matter which was handed
into evidence as Exhibit "Q". This witness sealed the cap left
Page 46 of72

28.28.
behind by the perpetrator with seal PA4000880055 in exhibit bag
PA4000880054.
Wageng Mohilwa testified that he is a member of SAPS for the past
17 years, with the rank of a Sergeant. He testified that the crime
kits which he received from Tanya Fourie in CAS65/9/2014 with
seal bag number PAD00475958 and in CAS39/9/2014 and with the
seal bag number D4C8456AB was and remained in his custody
until he delivered it to the forensic laboratory in Plattekloof, Cape
Town.
29. The Respondent then closed its case, and the Appellant launched an
application in terms of the provisions of section 17 4 of the Criminal Procedure
Act which application was dismissed by the trial court.
30. During the section 174 proceedings it was argued on behalf of the Appellant
that the blood sample evidence was "unconstitutionally" obtained from the
Appellant and as such should be excluded. This line of defence was however
not taken during the course of the trial when the witnesses Nortje or Baard
testified about the obtaining of the blood sample from the Appellant, its
analysis and the outcome of the analysis. The admission of Baard's report
was not objected to or contested by the Appellant when same was admitted
into evidence.
31 . If the defence was of the view that the blood sample evidence was
inadmissible due to the fact that same have been obtained in an
Page 47 of 72

·unconstitutional" or other objectionable manner, notwithstanding the clear
provisions of section 37(2) of the Criminal Procedure Act,40 then the defence
should have challenged the admissibility of the evidence relating to same.
This was not done ..
32. As stated, the trial court proceeded to dismiss the Appellant's application in
terms of section 174 of the Criminal Procedure Act. After the dismissal of the
Appellant application in terms of the provisions of section 17 4 of the Criminal
Procedure Act, the Appellant elected to close his case without adducing any
evidence.
33. The trial Court after having granted an opportunity to the respective parties to
address the court proceeded with its judgment in the matter. The trial court
duly, in the view of this Court, analysed all the evidence before the court and
came to the conclusion that the conspectus of evidence before the court
proved the guilt of the Appellant beyond reasonable doubt in respect of all the
counts in the indictment except for count four.
34. As is evident from the summary of the evidence above, a common
denominator in all three incidences of rape and the two incidences of
housebreaking is that none of the complainants could identify the perpetrator
who raped them or broke into their houses, however the trial court has
40 Reference can also be made to the contents of section 225(2) of the Criminal
Procedure Act, Act 51 of 1977.
Page 48 of72

correctly found that forensic DNA evidence linked the Appellant to all the rape
and housebreaking crimes in question.
35. There is no reason for this court of appeal to disturb the judgment of the trial
court in respect of the conviction of the Appellant in respect of the merits of
the matter, save to correct the misdirection of the trial in as far as the multiple
convictions of the Appellant on the multiplicity and duplicated rape charges
are concerned.
36. Having regard to the authorities referred to above, the Appellant should have
been acquitted on counts two, six, seven and ten. To this extent, the
Appellant's appeal against his conviction on counts two, six, seven and ten is
upheld. The conviction of the Appellant by the trial court in respect of counts
one, three, five, eight and nine remains undisturbed.
37. The trial court then proceeded to sentence. In respect of sentence the trial
court:
41
37 .1 . comprehensively dealt with the trite "triad of Zinn", being the triad
of the crime, the offender, and the interests of society, as
enunciated in S v Zinn41 ;
37 .2. found that irrespective of the contents of a pre-sentence report
compiled by the social worker T ebogo Mosang, that there are no
1969 (2) SA 537 (A) at 540G to H.
Page 49 of72

"substantial and compelling circumstances" present to allow for a
deviation from the prescribed maximum sentence of life
imprisonment, as prescribed in terms of in section 51(1) read with
Part 1 of Schedule 2 ("rape" as per paragraph (a)(i) of Part 1) of the
Criminal Law Amendment Act;
37.3. found that GKM sustained serious injuries during the rape to her
and that she had been raped twice, as such the trial court invoked
the minimum sentence of life imprisonment as per the above
referred to statutory provisions in respect of count one and count
two;
37 .4. also imposed the minimum sentence of life imprisonment as
prescribed by the above referred to provisions in respect of counts
five and six, count seven, count nine and count ten.
38. The Respondent could not prove any previous convictions against the
Appellant. However, in the testimony of the social worker, Tebogo Mosang,
which was adduced prior to sentence it was stated by her under oath that the
Appellant " ... has been detained since 2014 as he has other offences in which
he was given custodial sentence ... ". The report of the social worker
proceeded to list numerous previous offences of which the Appellant was
convicted. The contents of the report of the social worker in respect of the
Appellant's previous convictions were challenged in cross examination on
behalf of the Appellant. The position regarding the Appellant's previous
Page 50 of72

convictions is not clear to this Court and as such it is taken that no previous
convictions were proven.
39. The trial court accordingly proceeded to sentence the Appellant as set out in
paragraph 11 above.
THE PRESCRIBED MINIMUM SENTENCE AND SENTENCING IN GENERAL
40. This Court has already alluded above to the application of the provisions of
section 51 read with schedule 2 of the Criminal Law Amendment Act. Before
the Court proceeds to deal with the sentences passed by the trial court, it is of
important to have regard to the certain general principles in as far as the
application of the provisions of section 51 of the Criminal Law Amendment Act
is concerned.
41 . The provisions of section 51(1) of the Criminal Law Amendment Act are
applicable in this matter and prescribe the following minimum sentence in a
peremptory manner: "Notwithstanding any other law, but subject to
subsections (3) and (6), a regional court or a High Court shall sentence a
person {- (a) if it has convicted la person] of an offence referred to in Part 1
of Schedule 2 ... to imprisonment for life."
42. The provisions of section 51(1} refer to Schedule 2, Part 1. In respect of this
matter the applicable provisions of this Part 1 of Schedule 2 is the part which
deals with "rape". This part reads as follows:
Page 51 of72

•Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007 -
(a) when committed-
(i) in circumstances where the victim was raped more than
once whether by the accused or by any co-perpetrator
or accomplice;
(ii) by more than one person, where such persons acted in
the execution or furtherance of a common purpose or
conspiracy;
(iii) by a person who has been convicted of two or more
offences of rape or compelled rape, but has not yet
been sentenced in respect of such convictions; or
(iv) by a person, knowing that he has the acquired immune
deficiency syndrome or the human immunodefic iency
virus;
(b) where the victim-
(i) is a person under the age of 16 years;
(iA) is an older person as defined in section 1 of the Older
Persons Act, 2006 (Act No. 13 of 2006);
(ii) is a physically disabled person who, due to his or her
physical disability, is rendered particularly vulnerable; or
Page 52 of72

(iii) is a person who is mentally disabled as contemplated in
section 1 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007; or
(c) involving the infliction of grievous bodily harm."
43. Once it has been established that a victim was raped as contemplated in
Schedule 2, Part 1, the trial court is obliged in terms of section 51(1) of the
Criminal Law Amendment Act to impose a sentence of life imprisonment,
unless substantial and compelling circumstances exist to depart from the
prescribed minimum sentence.42
44. Section 51(3)(a) of the Criminal Law Amendment Act contains the above
referred to redeeming provision and states the following:
0
/f any court referred
to in subsection (1) or (2) is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence than the
sentence prescribed in those subsections, it shall enter those circumstances
on the record of the proceedings and [may] must thereupon impose such
lesser sentence: Provided that if a regional court imposes such a lesser
sentence in respect of an offence referred to Part 1 of Schedule 2, it shall have
42
See Du Toit, De Jager, Paizes, Skeen and Van der Merwe Commentary on the
Criminal Procedure Act (2012) 28-14 to 28-16A, Snyman Criminal Law (2008) 368
to 369, Snyman Strafreg (2012) 382 to 384. Sy Mofokeng 1999 ( 1) SACR 502 (WLD),
S v GN 2010 (1) SACR 93 (TPD), S v Nkomo 2007 (2) SA 198 (SCA), Sy Blaauw
1999 (2) SACR 295 (WLD), Sy Yilakazi 2009 (1) SACR 552 (SCA), S v Mahomotsa
2002 (2) SACR 435 (SCA) and S v Myamvu 2005 (1) SACR 54 (SCA).
Page 53 of 72

jurisdiction to impose a term of imprisonment for a period not exceeding 30
years." (this Court's emphasis)
45. Section 51(3XaA) of the Criminal Law Amendment Act aids the interpretation
of the phrase "substantial and compelling circumstances" by stating which
facts shall not constitute "substantial and compelling circumstances". This
provision reads as following: "When imposing a sentence in respect of the
offence of rape the following shafl 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 injury
to the complainant; (iii) an Appellant person's cultural or religious beliefs about
rape; or (iv) any relationship between the Appellant."
46. Accordingly, one needs to turn to the content and interpretation which was
given in the past by the courts to the phrase " ... substantial and compelling
circumstances ... ".
47. In the matter of S y Mafgas.43 the following was stated by Marais JA in the
SCA regarding sentencing and the implementation of the provisions of section
51 of the Criminal Law Amendment Act and the imposition of prescribed
minimum sentences :
43 2001 (1) SACR 469 (SCA).
Page 54 of 72

" ... 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 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
Page 55 of 72

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 ... "'44
48. In the matter of S v GN.45 Du Plessis J stated in respect of the Malgas
judgment: " ... As I understand the Ma/gas judgment, the prescribed minimum
sentence may be departed from if, having regard to all the factors that play a
role in determining a just sentence, the court concludes that the imposition of
the prescribed minimum would in the particular case constitute an injustice or
44 At para [7) to [9].
45 2010 (1) SACR 93 (TPD).
Page 56 of72

would be "disproportiona te to the crime, the criminal and the legitimate needs
of society" ... "46
49. The Supreme Court of Appeal has recently confirmed that certain mitigating
personal circumstances of an Appellant and even the fact that an Appellant
person may be a first offender does not constitute "substantial and compelling
circumstances" as contemplated in section 51(2) of the Criminal Law
Amendment Act.
50. The SCA in the matter of Mthanti v The State47 of which the facts, to a limited
46
47
extent, resonate with the facts in this matter held:
"[19] The last issue is whether there were substantial and compelling
circumstances that justified deviation from the minimum prescribed sentences
in this case. It is apparent from the above description of the events that took
place on the three occasions that the aggravating circumstances present
when committing the crimes by far outweighed the mitigating factors. The high
court was correct in considering that the appellant 's criminal conduct was not
'fleeting and impetuous'; that it was 'calculated and callous', and that there
was no reason to deviate from the prescribed minimum sentences.
{20} The only submission made on appeal was that the appellant 's mother died
when he was 7 years old. The suggestion was that the appellant was troubled
At para [6].
(Case no 859/2022) [2024) ZASCA 15 (8 February 2024) at paras [19) to [21).
Page 57 of 72

by the fact that his mother died without revealing the identity of his father. But
all of this was considered by the high court. The court a/so considered in the
appellant 's favour, his personal circumstances - that he was gainfully
employed at the time of his arrest for the offences in question and supporting
his two minor children. It considered that although he lost his only biological
parent early in his life, his uncle and aunt gave him 10 a 'good and warm
upbringing ' until he abandoned his post matric studies without telling them'.
The court considered that the appellant was a first offender.
(21 J The appellant ruthlessly exploited the vulnerabilities of the most exposed
members of our society. He preyed on those most affected by the high levels
of unemployment in the country. He deceived women, causing them to leave
the security and comfort of their homes. He caused them to use their meagre
financial resources to travel to Pietermaritzburg. He robbed them of their
scant belongings and then humiliated the second and third complainants by
raping them. In respect of the third complainant the rape happened in the
most degrading manner, in the presence of a third person. He then left the
complainants to their own devices in remote places at night. This he did
repeatedly, as the high court correctly found. In all three incidents there was
no basis for a departure from the prescribed minimum sentences ."
51. The above referred to case, as confirmed in the Malgas matter, affirms that
certain mitigating factors from the Appellant's personal circumstances are in
isolation not sufficient to justify a departure from the imposition of a minimum
sentence. There must be substantial and compelling reasons to do so. In this
Page 58 of 72

case, the trial court found that there were no substantial and compelling
circumstances to deviate from the minimum prescribed sentence.
52. With regard to the offence of rape, which is disturbingly prevalent in our
country, this Court deems it appropriate to make reference to the following:
46
52.1. The court in the matter of Yilakazi48 held as follows: " ... The
prosecution of rape presents pecullar difficulties that always call for
the greatest care to be taken, and even more so where the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and many prosecutions
fail for that reason alone. In those circumstances each detail can
be vitally important. From those who are called upon to sentence
convicted offenders such cases call for considerable reflection.
Custodial sentences are not merely numbers. And familiarity with
the sentence of life imprisonment must never blunt one to the fact
that its consequences are profound."
2009 ( 1) SACR 552 (SCA) at para [21}.
Page 59 of 72

49
50
51
52.2. Most recently, in the matter of Director of Public Prosecutions .
Kwazulu-Natal Pietermaritzburg v Ndlovu49 the Supreme Court of
Appeal Stated: "Rape is an utterly despicable, selfish, deplorable,
heinous and horrendous crime. It gains nothing for the perpetrator,
save perhaps fleeting gratification, but inflicts lasting emotional
trauma and, often, physical scars on the victim. More than two
decades ago, Mohamed CJ, writing for a unanimous court, 50 aptly
remarked that: 'Rape is a very serious offence, constituUng as it
does a humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim. The rights to dignity, to privacy ,
and the integrity of every person are basic to the ethos of the
Constitution and to any defensible civilization. Women in this
country are entitled to the protection of these rights. They have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come from work, and
to enjoy the peace and tranquillity of their homes without the fear,
the apprehension and the insecurity which constantly diminishes
the quality and enjoyment of their lives. '
Jn similar vein Nugent JA, writing for a unanimous court51, in equal
measure described rape in these terms: 'Rape is a repulsive crime,
it was rightly described by counsel in this case as an invasion of the
(888/2021) [2024] ZASCA 23 (14 March 2024) at para [73] and [74].
With reference to S v Chapman 1997 (3) SA 341 (SCA) at paras [3] to [4].
With referen ce to S v Vilakazi supra at para [1].
Page 60 of 72

52
53
most private and intimate zone of a woman and strikes at the core
" of her personhood and dignffy. '
52.3. In Tshabalala v S (Commissioner for Gender Equality and Centre
for Applied Legal Studie as Amici Curiae): Ntulj v $ 52 the
Constitutional Court held that " ... rape is not rare, unusual and
deviant. It is structural and systemic ... ";
52.4. In Masiya v Director of Public Prosecution Pretoria and Another
(Centre for Applied Legal Studies and another as Amici Curjae)53
the Constitutional Court said the following of rape: "Today rape is
recognised as being less about sex and more about the expression
of power through degradation and concurrent violation of the
victim's dignity, bodily Integrity and privacy. Regrettably, 26 years,
since the decision of this Court in Chapman, the scourge of rape
has shown no signs of abating. On the contrary, it appears to be
on an upward trajectory."
52.5. In recent times, this " ... upwards trajectory ... " referred to by the
Constitutional Court in 2007 seems to be continuing unabated,
notwithstanding numerous efforts from government and society at
large to address violence committed against women and children.
2020 (2) SACR 38 (CC) at para (67].
2007 (5) SA 30 (CC) at para [51].
Page 61 of 72

52.6. In the matter of Director of Public Prosecutions, Grahamstown v T
M the Court held that: 54 "The reality is that South Africa has five
times the global average in violence against women. There is
mounting evidence that these disproportionally high levels of
violence against women and children, has immeasurable and far­
reaching effects on the health of our nation, and its economy.
Despite severe underreporting, there are 51 cases of child sexual
victimisation per day. UNICEF research has found that over a third
(35.4%) of young people have been the victim of sexual violence at
some point in their lives. What cannot be denied is that our country
is facing a pandemic of sexual violence against women and
children. Courts cannot ignore this fact. In these circumstances the
only appropriate sentence is that which has been ordained by
statute."
53. In the matter of Modise v S55, the Court held that: "Against this background,
the courts in this country must not shy away from Its role to address and
confront the fact that violence committed against woman and children must be
condemned in the strongest terms, eradicated and the seriousness of this task
must be reflected in the manner in which the courts address same. This must
be done whilst striking a balance with the court's compelling duty to ensure
that the punishment fits the crime and, of course, the offender."
54 (131/20 19) (2020) ZASCA 5 (12 March 2020) at para [15].
55 (CA 64/2019) (2024) ZANWHC 116 (16 April 2024) at para 65.
Page 62 of 72

54. In this matter, with reference to count nine and ten of the indictment, a child of
nine years old was raped more than once by the Appellant. Again, with
reference to the matter of Vose and Another y S the following was stated in
paragraphs 33 to 36 of this matter by the court:
"33. In Mudau v S 2013 (2) SACR 292 (SCA) at para [17] the Supreme
Court of Appeal held as follows: 'It is necessary to re-iterate a few
self-evident realities. First, rape is undeniably a degrading,
humiliating and brutal invasion of a person's most intimate, private
space. The very act itself, even absent any accompanying violent
assault inflicted by the perpetrator, is a violent and traumatic
infringement of a person's fundamental right to be free from all
forms of violence and not to be treated in a cruel, inhumane or
degrading way.' (See also S v Chapman [1997] ZASCA 45; 1997
(3) SA 341 (SCA) at 345A-B.)
34. This Court has consistently upheld sentences of life imprisonment
or lengthy sentences in cases of the rape of children. In Konstabel
v S [2020] ZA WCHC 75 (11 August 2020) the Appellant was
convicted of rape over a period of two years of an 8-year-old child,
the daughter of his partner with whom he was living. He was
sentenced to life imprisonment, which was confirmed on appeal.
Page 63 of 72

35. In Abrahams v S [2019) ZAWCHC 62 (23 May 2019) the Appellant
was convicted of the rape of an 11-year-old girl and sentenced to
life imprisonment. He was a security guard at a creche in close
proximity to where the child lived. His sentence was confirmed on
appeal.
36. Lastly, in Williams v S [2015) ZAWCHC 179 (27 November 2015)
the Appellant was convicted of two counts of rape of a 14-year-old
complainant. The Appellant was the complainant's grandmother's
brother. He was sentenced to life imprisonment , which sentence
was confirmed on appeal."
55. In respect of sentencing in general, in the matter of Ndou v S56 Shongwe JA
stated that: "Sentencing is the most difficult stage of a criminal trial, in my
view. Courts should take care to elicit the necessary information to put them
in a position to exercise their sentencing discretion properly . In rape cases,
for instance, where a minor is a victim, more information on the mental effect
of the rape on the victim should be required, perhaps in the form of calling for
a report from a social worker. This is especially so in cases where it is clear
that life imprisonment is being considered to be an appropriate sentence. Life
imprisonment is the ultimate and most severe sentence that our courts may
impose; therefore a sentencing court should be seen to have sufficient
information before it to justify that sentence·.
56 [2012] JOL 29522 (SCA) at para (14].
Page 64 of 72

56. The imposition of life imprisonment is, however, the most severe sanction
available to the court. It is imperative, therefore, that this Court must be
satisfied that the sentence of life imprisonment is indeed proportionate. In S v
Dodo57 Ackermann J dealt with the "concept of proportionality" and stated the
following:
57
" ... The concept of proportionality goes to the heart of the inquiry as to whether
punishment is cruel, inhuman or degrading, particularly where, as here, it is
al most exclusively the length of time for which an offender is sentenced that
Is in issue. This was recognized in S v Makwanyane. Section 12(1 )(a) [of the
Constitution] guarantees, amongst others, the right "not to be deprived of
freedom ... without just cause." The "cause" justifying penal incarceration and
thus the deprivation of the offender's freedom, is the offence committed.
"Offence", as used throughout in the present context, consists of 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 a bearing on the seriousness of the offence and the culpability of the
offender. In order to justify the deprivation of an offender's freedom it must be
shown that it is reasonably necessary to curb the offence and punish the
offender. Thus the length of punishment must be proportionate to the offence .
. . . To attempt lo justify any period of penal incarceration, let alone
imprisonment for fife as in the present case, without inquiring into the
proportionality between the offence and the period of imprisonment, is to
2001 (5) BCLR 423 (CC) at paras [37] and [38].
Page 65 of 72

ignore, if not to deny, that which lies at the very heart of human dignity. Human
beings are not commodities to which a price can be attached; they are
creatures with inherent and infinite worth; they ought to be treated as ends in
themselves, never merely as means to an end. Where the length of a
sentence, which has been imposed because of its general deterrent effect on
others, bears no relation to the gravity of the offence (in the sense defined in
paragraph 37 above) the offender is being used essentially as a means to
another end and the offender's dignity assailed. So too where the reformative
effect of the punishment is predominant and the offender sentenced to lengthy
imprisonment, principally because he cannot be reformed in a shorter period,
but the length of imprisonment bears no relationship to what the committed
offence merits. Even in the absence of such features, mere disproportionality
between the offence and the period of imprisonment would also tend to treat
the offender as a means to an end, thereby denying the offender's
humanity. "56
57. The principle of proportionality was also addressed in Vilakazi v S,59 where
Nugent JA observed that a prescribed sentence cannot be assumed, a priori,
to be proportionate in a particular case. This was an issue to be determined
upon consideration of all the circumstances in the matter by the trial court. It
goes without saying that this Court is thus also compelled to consider if this
was done by the trial court in this appeal.
58
59
At paragraphs [37] and [38).
(2008] 4 All SA 396 (SCA).
Page 66 of 72

THE PERTINENT ISSUES IN THIS APPEAL IN RESPECT OF CONVICTION AND
SENTENCE
58. A careful scrutiny of the evidence adduced by the Respondent during the trial
as evident from the record indicates that the trial court was correct in finding
that GKM has sustained severe injuries during the rape, but the trial court, in
the view of this Court, erred in finding that GKM was raped more than once.
59. The evidence was that the Appellant pushed her into a bed in a room in the
house {not her bedroom) and proceeded to rape her by being on top of her,
he then dismounted her, turned her around and raped her again from behind
and then ejaculated.
60. The authorities in this regard are clear. The court in S v Blaauw6° stated that:
60
"Mere and repeated acts of penetration cannot without more, in my mind, be
equated with repeated and separate acts of rape. A rapist who in the course
of raping his victim withdraw his penis, positions the victim's body differently
and then again penetrates her, will not, in my view, have committed rape twice.
This is what I believe occurred when the accused became dissatisfied with the
position he had adopted when he stood the complainant against a tree. By
causing her to lie on the ground and penetrating her again after she had done
so, the accused was completing the act of rape he had commenced when they
both stood against the tree. He was not committing another separate act of
rape. Each case must be determined on its own facts. As a general rule the
1999 (2) SACR 295 (W) at 300A.
Page 67 of72

more closely connected the separate acts of penetration are in terms of time
O.e. the intervals between them) and place. the less likely a court will be to
find that a series of separate rapes has occurred. But where the accused has
ejaculated and withdrawn his penis from the victim, if he again penetrates her
thereafter, it should, in my view, be inferred that he has formed the intent to
rape her again, even if the second rape takes place soon after the first and at
the same place."
61 . The above referred to quote from the matter of Blaauw was referred to with
approval by the Supreme Court of Appeal in the matter of Tladi v S.61
62. The fact that the trial court was incorrect in respect of the question of whether
GKM was raped more than once is academic because what the trial court
correctly found and stated was that GKM has sustained severe injuries during
the rape and as such the provisions of Schedule 2, Part 1, Rape as per section
(c) apply in that the rape of GKM involved " ... the infliction of grievous bodily
harm .... ".
63. The position is different in the instance of the rape of HKS and RS. The
relevant evidence is set out above and shows that: the rape of HKS was
stopped, RS was then raped by the Appellant, who thereafter returned to
raped HKS again. RS was raped both vaginally and anally. The rapes
perpetrated upon HKS and RS are clear instances of rape being committed
61 2013 (2) SACR 287 (SCA) at para 12
Page 68 of72

more than once if one has regard to the broad guidelines as described in S v
Blaauw.
64. In S y WiUemse62 Griffiths J stated the following regarding rape which is
committed vaginally and anally upon the same victim by the same perpetrator:
"By doing so, in my view, the appellant formed a completely separate intent to
rape the complainant in a manner which was different to that in which he had
initially raped her and is a strong indication that this was a separate form of
rape, even though it may have occurred reasonably close in time to the initial
act. "63
65. Having regard to the above referred to authorities, the trial court correctly
found that HKS and RS were, on the proven facts, raped more than once and
as such the invoking of in section 51 (1) read with Part 1 of Schedule 2 ("rape"
as per paragraph (aXi) of Part 1) of the Criminal Law Amendment Act was
justified, but not in respect of each of the separate and duplicated counts of
rapes as per the indictment as imposed by the trial court.
66. In as far as HKS is concerned, the provisions of Schedule 2, Part 1, Rape as
per section (b)(iA) also applied in that HKS is " ... an older person as defined in
section 1 of the Older Persons Act, 2006 (Act No. 13 of 2006)".
62
63
2011 (2) SACR 531 (ECG) at para 18.
Also see, S v Mavundla 2012 (1 ) SACR 548 (GNP) and S v Maxabaniso 2015 (2) SACR 55 (ECP).
Page 69 of72

67. This Court has already stated that the Appellant was wrongly convicted on the
duplicated rape charges which comprise counts two, six, seven and ten and
as such the concomitant sentences in respect of these charges equally stands
to be overturned on appeal. It largely becomes academic as the sentence of
life imprisonment in respect of counts one, five and nine remains intact.
68. Accordingly , this Court of appeal is compelled to partially intervene in the
conviction of and sentences as imposed by the trial court to the extent as set
out in the order of this Court recorded herein below.
69. As to imposition of life imprisonment because there were no substantial and
compelling circumstances to have justified the imposition of a lesser sentence,
this Court of appeal is satisfied that the trial court's approach and finding in
respect of the redeeming provision was correct and there exists no reason for
this Court to interfere with this finding made by the trial court. This conclusion
is bolstered by a consideration of recent case law that deals with incidents of
rape.64
ORDER
The following orders are hereby made:
(i) the Appellant's appeal against his conviction in respect of counts two, six,
seven and ten is upheld and replaced with the following order: "The Appellant
See, for example S v FM 2016 JDR 1564 (GP), S v Mgandela 2016 JDR 1748 (ECM) ,
S v Redebe 2019 JDR 1257 {GP) and s y Dane 2021 JDR 1879 (GP) and Director of
Public Prosecutions, Grahamstown v Mantashe supra at para [11) and [12].
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is acquitted of the charges contained in counts two, six, seven and ten of
the indictment as these counts constitutes a duplication of charges against the
Appellant, if read with the contents of counts one, five and nine in respect of
which counts the Appellant 's conviction remain";
(ii) the Appellant's appeal against his conviction in respect of counts one, three,
five, eight and nine are dismissed;
(iii) the Appellant's appeal against his sentence in respect of counts one and two
of the indictment against him, is upheld and replaced with the following
sentence and order: "On count one of the indictment the Appellant is
sentenced to life imprisonmenr;
(iv) the Appellant's appeal against his sentence in respect of counts five, six and
seven of the indictment against him, is upheld and replaced with the following
sentence and order: "On count five the Appellant is sentenced to life
imprisonmenf ';
(v) the Appellant's appeal against his sentence in respect of count nine and
count ten of the indictment against him, is upheld and replaced with the
following sentence and order: "On count nine of the indictment the Appellant
is sentenced to life imprisonment";
(vi) the Appellant's appeal against his sentence in respect of counts three and
count eight of the indictment is dismissed and the sentences on these counts
as imposed by the trial court are confirmed and shall remain as ordered by the
trial court;
(vii) In terms of section 280 of the Criminal Procedure Act, Act 51 of 1977, it is
directed that the sentences imposed in respect of counts one, three, five,
eight and nine shall all run concurrently, the cumulative effect of the said
Page 71 of 72

sentences being that tha AppeHant Is effec;tiveiv sentenced to life
ACTING JUDGE OF THE HIGH COURT
NORTH-WEST DIVISION, MAHIKENG
BMO
ACTING JUDGE OF THE HIGH COURT
NORTH-WEST DMSION, MAHIKENG
DATE OF APPEAL: 18 JUNE 2024
DATE OF JUDGMENT: 19 FEBRUARY 2026
For the Appellant: Adv Nyoka
For the Respondent: Adv Phetlhu
Page 72 of72