SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRJCA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO LOCAL DIVISION, THOHOYANDOU
CASE NO: A04/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 17.02.2026
SIGNATURE:
In the matter between:
BALOYI GEZANI MATIMBA APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
Heard on: 30 January 2026
Delivered: this judgment was handed down e lectronically by circulation to the
parties' legal representatives by email and release on SAFLII. The date and
time for hand-down is deemed to be at 14:00 on 17 February 2026.
SEMENYA DJP
[1] The appellant was convicted in the Regional Court, Limpopo s itting at
Waterval, pursuant to his plea of guilty on one count of rape in contravention of
section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act1. The conviction on a charge of robbery with aggravating circumstances followed
after a full trial as he had pleaded not guilty. He was subsequently sentenced to life
imprisonment as contemplated in section 51(1) of the Criminal Law Amendment Act 2
on a charge of rape and fifteen (15) years imprisonment in terms of section 51(2) of
the s ame Act on a charge of robbery with aggravating circumstances. The two
sentences were ordered to run concurrently. The appellant enjoys automatic appeal
in view of the life imprisonment sentence.
[2] The appellant was legally represented by an attorney fr om the Legal Aid
South Africa during his trial. In line with section 112(2) of the Criminal Procedure Act3,
the attorney read the contents of a statement prepared in support of the appellant's
guilty plea into the court record. The appellant later confirmed that what was read by
his attorney was in accordance with his instructions.
[3] It is apposite to quote parts of the contents of the section 112(2) statement
and the questions raised by the regional magistrate before he convicted the
appellant. The statement, in relevant part, is as follows:
" ... 5.1. I admit that on the 29th day of January 2018 at Nwamatatani Village in
the Regional Division of Limpopo I did unlawfully and intentionally commit acts
of sexual penetration with a female person, to wit, M[...] E[...] who was at the
time 16 years old by inserting my penis into her vagina without her consent.
5.2. On the above-mentioned date I was with Bornwise coming from Majosi
village goin g to my aunt's homestead. While walking I noticed complainant
and a boy. I quickly approached both complainant and a boy. Upon reaching
complainant and a boy I took out a knife and the boy ran away. I grabbed
complainant and a boy I took out a knife and the boy ran away. I grabbed
complainant and forcefully dragged her to a nea rby bush. While inside the
1 32 of 2007
2 105 of 1997
3 51 of 1977
bush I forcefully undressed complainant's clothes, to wit, her T -shirt, trousers
and panty. I ordered her to lay on the ground which she did obey my
instructions. I also undressed my trousers and underwear. I did climb on top
of her where I unlawfully and intentionally inserted my penis into her vagina
without her consent and have sex with her. I then make up and down
movement until I ejaculated inside the complainant's vagina.
5.3. After some time, I again unlawfully and inten tionally inserted my penis
on the complainant vagina without her consent where I had sex with her. After
having sex with complainant for the second time without her consent, I then
pulled out my penis, got dressed and left complainant in the bushes..."
[4] It is stated in the charge that the provisions of section 51 (1) of the Criminal
Law Amendment Act are applicable on the basis that the complainant was 16 years
old when she was raped by the appellant. Part I of Schedule 2 of the Criminal Law
Amendment Act prescribes a minimum sentence of imprisonment for life in
circumstances where, among others, the victim is under the age of 16 years. The
complainant in this case was above that age when she was raped.
[5] After confirmation of the statement by the a ppellant, the trial court enquired
from the prosecutor and the attorney as to which of the jurisdictional facts, as
contemplated in Part I of Schedule 2 of the Criminal Law Amendment Act, attracts
the invocation of the provisions of section 51(1). The pros ecutor and the accused's
legal representative stated that the provisions of section 51(1) are applicable since
the appellant admitted that he raped the complainant twice.
[6] The appeal court's powers to interfere with the sentence imposed by the trial
court is set out to be as follows:4
"Ordinarily, sentencing is within the discretion of the trial court. An appellate
court's power to interfere with sentences imposed by courts below is
court's power to interfere with sentences imposed by courts below is
circumscribed. It can only do so where there has been an irregularit y that
4 Bogaards v S 2013 (1) SACR 1 (CC)
results in a 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.
A court of appeal can also impose a different sentence when it sets aside a
conviction in relation to one charge and convicts the accused of another."
[7] The facts of this case are comparable to those in Ndlovu v S 5 In that case,
the prosecutor charged the accused with rape read with section 51(2). The evidence
proved that the victim sustained grievous bodily injuries, which in terms of Part I of
Schedule 2, attracts a minimum sentence of life imprisonment, which is a sentence
that the court may impose in terms of section 51(1). The trial court convicted the
accused as charged. However, she proceeded to impose a sentence in terms of
section 51(1). The Constitutional Court overturned the sentence on the basis that the
court had no jurisdiction to impose the sentence in that it convicted the accused as
charged, namely with rape read with section 51(2).
[8] In the present case, the trial court had jurisdiction to sentence in terms of
section 51(1) in that this is the offence he was charged with. By admitting that he
sexually penetrated the complainant more than once, the appellant admitted that the
jurisdictional facts on which the sentence of life imprisonment may be imposed do
exist. There can be no prejudice on the part of the appellant in this matter. He was
fully aware of the sentence that may be imposed on him.
[9] The grounds of appeal, in s hort, are that the court below misdirected itself by
finding that there are no substantial and compelling circumstances that justified a
sentence which was lesser than that of life imprisonment, as contemplated in section
51(3) of the Criminal Law Amendment Act. The factors which were placed before the
court are, first, that he pleaded guilty to the charge and offered an apology to the
court are, first, that he pleaded guilty to the charge and offered an apology to the
victim before the trial could commence. The appellant argues that this is a sign of
remorse. Second, he was a first offender at the age of 23. Third, he was not married.
Fourth, he went to school up to grade 3. Lastly, that the appellant exhibited qualities
of someone who could be rehabilitated.
5 2017 (2) SACR 305
[10] Counsel for the appellant contends that the trial court misdirected itse lf by
overemphasizing the seriousness of the offence the appellant was convicted of. He
submitted that the sentence of imprisonment for life is shockingly disproportionate to
the offence committed by the appellant, the appellant as a person and the interes ts
of the community.6
[11] In S v Chapman7 the court held that:
"...Rape is a very serious offence, constitution 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 ant defensible civilization. Women in this
country are entitled to the protection of these rights. They have a legitimate
claim to walk p eacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy the peace and
tranquility of their homes without the fear, the apprehension and the insecurity
which constantly diminishes the quality and enjoyment of their lives"
[12] The victim in the robbery count is also a female person. The facts in that
count are similar to those in the rape count. The victim was walking in the street at
about 15:00 when she came across the appellant. The appellant produced two
knives and stopped her. He stabbed her with one of the two knives on her left
shoulder and left forearm. He tore her T -shirt and bit her on the right forearm. The
victim sustained injurie s as a result of the attack. In the process of injuring her, the
appellant robbed her of a plastic bag carrying two loaves of bread, a pack of danone
yoghurt and a packet of simba chips. He also took her R300.00 which she held in
cash.
[13] Chapman was decided in 1997. Regrettably, the plight of women remains the
same, if not worse than it was then. The complainant in the rape charge was walking
6 S v Zinn 1969 (2) SA 537 (A)
7 1997 (3) SA 341 (SCA)
with a male person when she was accosted by the appellant. It seems to me that the
appellant believed that the s aid male person, and not the complainant, deserves to
enjoy the freedom of walking in the street, without any apprehension of rape. The
facts of this case, in both charges, depicts the appellant as a person who has very
little respect for women. The tri al court was enjoined to view this fact in a serious
way, as it did. The argument raised by counsel for the appellant with regard to the
appropriateness of the sentence is found to be without merit.
[14] The submission made by counsel for the appellant th at the trial court
misdirected itself in failing consider the appellant's remorse as a factor that should
have compelled it to impose a lesser sentence, is equally without merit. This fact
should be weighed together with the views expressed by the probatio n officer in the
pre-sentence report. According to the probation officer, both victims are traumatized
by the incidents. They both suffered physical and psychological harm. The incident
of rape affected the academic progress of the rape complainant as she had to repeat
a grade. Counsel for the appellant seems to erroneously believe that this suffering
could be erased by a mere expression of regret.
[15] Ponnan JA stated as follows on the issue of remorse:
"There is, moreover, a chasm between regret and re morse. Many accused
persons might well regret their conduct, but that does not without more
translate to genuine remorse. Remorse is a gnawing pain of conscience for
the plight of another. Thus genuine contrition can only come from an
appreciation and a cknowledgement of the extent of one's error. Whether the
offender is sincerely remorseful, and not simply feeling sorry for himself or
herself at having been caught, is a factual question. It is to the surroundi1i'g
actions of the accused, rather than what he says in court, that one should
actions of the accused, rather than what he says in court, that one should
rather look. In order for the remorse to be a valid consideration, the penitence
must be sincere and the accused must take the court fully into his or her
confidence. Until and unless that happens, the genuineness of the contrition
alleged to exist cannot be determined. After all, before a court can find that an
accused person is genuinely remorseful, it needs to have a proper
appreciation of, inter alia: what motivated the accused to commit the deed;
what has since provok ed his or her change of heart; whether he or she does
indeed have a true appreciation of the consequences of those actions."8
[16] The trial court correctly rejected other factors which counsel for the appellant
contend justified departure from imposition of minimum prescribed sentence. There
is no evidence that the appellant was motivated by his limited standard of education,
his age or the unmarried status. These factors are much outweighed by aggravating
factors.
[17] It cannot be said that the sentence imposed by the trial court in both counts is
vitiated by irregulariti es that warrant interference with by this court of appeal. The
trial court correctly found that there are no substantial and compelling circumstances
which justify imposition of a lesser sentence than the sentences prescribed in section
51(1), in count 1 a nd 51 (2) in count 2. The sentences imposed by the trial court are
correct and stand to be confirmed.
[18] In the result I make the following order:
i. The appeal against the effective sentence of life imprisonment is
dismissed.
ii. The sentence of life imprisonment in count 1 is confirmed.
iii. The sentence of fifteen years imprisonment is count 2 is confirmed.
iii. The order in terms of which the two sentences are to run concurrently is
confirmed.
MV SEMENYA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION, THOHOYANDOU
I agree.
8 Matyityi v S 2011(1) SACR 40 (SCA) at par [13]
AML PHATUDI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, THOHOYANDOU.
APPEARANCES
For the Appellant: NR Rasivhaga
Instructed by: Legal Aid South Africa, Thohoyandou
For the Respondent: Adv A Madzhuta
Instructed by: Director of Public Prosecutions, Thohoyandou