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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A120/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
Date 09/02/26
Signature
In the matter between: -
OSCAR VELAPI HLATSWAYO APPELLANT
And
THE STATE RESPONDENT
___________________________________________________________________
JUDGMENT
___________________________________________________________________
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CORAM BAQWA et VAN NIEKERK JJ
BAQWA J
Introduction
1. This matter comes before us as an appeal in terms of Section 309 of the
Criminal Law Amendment Act1 51 of 1977 as amended by section 10 of Act 42
of 2013 (the Act) against the sentence of life imprisonment imposed by the
Acting Regional Magistrate, Mrs. K Pillay in respect of count one (1) of rape
on 8 March 2024.
The facts
2. The background to this matter is succinctly summarized in the report of the
Social Worker, Nicole Rashid, which except for minor discrepancies almost
totally corroborate s the evidence tendered by the complainant herein, T[...]
Chauke at her home, 1[...] N[...], Klipgat on 14 November 2023.
3. I do not propose to traverse the evidence tendered at the trial as this is an
appeal against sentence only and the evidence with regard to the conviction
for rape is not contested in this appeal.
4. The report tendered before the court a quo forms part of the record of
evidence. MS Rashid stated as follows: ’The victim indicated that she does
not know the accused person, she stated on the day of the crime she went
alone to Making Tavern in Soshanguve, Block NN. She mentioned that she
was sitting and drinking beer with a person named T[...] who she met at the
1 The Criminal Procedure Act 51 of 1977
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tavern whilst waiting for her friend and her boyfriend to join them. She further
said that when her friend and boyfriend arrived, she left T[...] and went to sit
with them, they continued to consume alcohol and socialize until her friends
asked her if she knew any B&B around, as the victim was familiar with the
area. She stated her friend informed her that her boyfriend needed a place to
sleep as it was late and he could not drive back to Johannesburg, the victim
continued to explain that her friend requested her to accompany them and
promised to take her home, she mentioned that she left the tavern around
2am. She said they found the accused sitting at the back of her friend’s
boyfriend’s bakkie and he started to conversate (sic) with her friend’s
boyfriend, she stated that they got into the car and they drove off and the
accused was still sitting at the back of the bakkie, she further mentioned that
the accused started banging the rooftop of the bakkie and her friend’s
boyfriend stopped. The accused jumped off the bakkie and open ed the door
where she was sitting and said she must get out of the car. The victim
indicated that the accused insulted her, pulling her out of the car and hit her
with a beer bottle on the head. She stated that she started screaming and her
friend and her boyfriend drove off to make a U-turn and put the headlights on
them, she continued to explain that the accused continued to beat her whilst
she and her boyfriend were watching and did nothing. They drove off leaving
her alone with the accused. She stated t hat a few people from the
neighborhood came out to see what was happening and the accused told
them that he bought alcohol for the victim and she was refusing to go with him
to his house. The victim said that the people then told her to go with the
accused. The victim stated that the accused pulled her forcefully as they were
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walking, they came across an open pit toilet that was isolated from the other
houses. She stated that the accused asked her to take off her jersey and
throw it in the pit toilet because it had bloodstains from being hit by a beer
bottle. She said she was left in her underwear, a bra and a tight. The accused
then took off his pants and instructed her to suck his penis. She said the
accused threatened to kill her or rape her if she does not co -operate, she
further mentioned that when she was done sucking his penis they went to the
accused’s place and he opened the shack door whilst threatening her with a
knife. According to the victim, the accused instructed her to undress, and he
put a condom on his penis and opened her legs and started penetrating her
vagina. She stated that when the accused was do ne penetrating her, she told
the accused that she had to go to work the following day and she requested
him to wake her up around 6am. She further indicated that the accused went
to tell his mother to wake him up at 6 in the morning. The accused said that at
6 am the accused’s mother shouted his name and he woke up. She indicated
that she did not sleep the whole night because she was scared. She further
mentioned that the following morning the accused asked her to get dressed
and he gave her a soccer jersey to wear. They walked together for a short
distance and the accused turned around at the corner of the street, leaving
the victim without saying anything. The victim stated that she continued to
walk and she came ac ross two male acquaintances and they asked her what
happened to her because of the blood on her forehead. She stated that she
told the acquaintances that the accused raped her and they encouraged her
to go to the police station to open a case of rape against the accused.’’
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5. The above account narrates the entire episode of the complainant’s abduction
from the vehicle she was travelling in, her assault physically and with a beer
bottle and her violent rape at knifepoint.
6. The inhumane treatment, the humiliation, and absolutely horrible experience
she was subjected to by the appellant can be described as the pinnacle of any
degradation any human being can be subjected by another.
7. The evidence demonstrates thar she was raped more than once, firstly by the
insertion of his penis into her mouth and subsequently into her vagina without
her consent.
The law
8. The appellant was legally represented throughout the proceedings. He was
accordingly alerted to the provisions of the Minimum Sentences Act section
51(1) of the Criminal Law Amendment Act 105 of 1997 in terms of which the
court a quo in the event of the appellant being convicted of rape (count 1), in
the absence of substantial and compelling circumstances could be sentenced
to life imprisonment.
The sentence
9. As alluded to above, the court requested a presentencing report which has
already been referred to above.
The grounds of appeal
10. The appellant herein brings this appeal on the following bases:
10.1. The court a quo erred in finding no substantial and compelling
circumstances in favor of the appellant justifying deviation from the
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prescribed minimum sentence despite the appellant being a first -time
offender for violent crimes, having spent 38 months in custody awaiting
finalization of the matter, suffers from chronic illness and no life
threatening injuries inflicted on the victim during the commission of the
offence.
10.2. The court a quo erred in imposing a sentence that is shockingly severe
and inappropriate considering that the rape the appellant was
convicted of is not the worst kind of rape.
10.3. The court a quo erred in not considering time the appellant spent in
custody awaiting finalization of this matter.
10.4. The court a quo erred in over -emphasizing the seriousness of the
offence and/or the interest of society without proper weight being
attached to the personal circumstances of the accused person taken
cumulatively.
11. I deal with the grounds of appeal seriatim:
11.1. I have already dealt with the inhumane treatment to which complainant
was subjected to earlier in this judgment. It is now established law as
per numerous decisions of our courts that being a first offender does
not exonerate an individual from receiving a life sentence in
appropriate circumstances.
In my view such circumstances are present in this case. Neither do the
absence of life-threatening injuries on the complainant excuse the
accused. The assault with a beer bottle was inter alia to serve d as an
aggravation of the appellant’s conduct.
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11.2. The sentence handed down is not shocking. It is precisely what was
contemplated by the legislature when the Minimum Sentences Act was
enacted, being one of the most prevalent heinous crimes to be
committed in South Africa . The sentence was appropriate for the two
rapes committed by the appellant.
11.3. The rather lengthy waiting period which appellant had to endure was
necessary in order to properly investigate the circumstances of the
appellant. The court a quo considered the report presented by the
probation officer and there was therefore no misdirection on its part in
that regard.
12. In S v Malgas2 the following was said:
‘’ The courts are required to approach the imposition of sentence conscious
that the legislature has ordained life imprisonment as the sentence that should
ordinarily in the absence of weighty justification be imposed for the listed
crimes in the specified circumstances, unless there are, and can be seen to
be, truly convincing reasons for a different response, the crimes in question
are therefore requested to elicit a severe standardized and consistent
approach from the courts. These sentences are not to be departed from lightly
and for flimsy reasons.”
13. The Supreme Court of Appeal re -affirmed the above sentiments in S v
Matyityi3.
14. In light of the above I propose that the following order be made:
2 S v Malgas 2011 (1) SACR469 (SCA).
3 S v Matyityi 2011 (1) SACR 40 SCA at 41 G
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14.1 That the appeal against sentence be dismissed.
__________________________
SELBY BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
__________________________
P VAN NIEKERK
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 27 November 2025
Date of judgment: 06 February 2026
Appearance
behalf of the Appellant Adv Moeng
Instructed by Legal Aid South Africa,
317 Francis Baard Street
Pretoria,0001
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On behalf of the Respondents Adv Masilo
Instructed by Office of the Director of Public
Prosecutions, Gauteng,
Pretoria,0001