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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case no: CA 22/2023
Regional Magistrates Case No: SOR 74/2022
In the matter between:
T[...] D[...] B[...] APPELLANT
and
THE STATE RESPONDENT
Coram: Hendricks JP and Petersen ADJP
Heard: 19 March 2026 (on the papers)
Delivered: This judgment was handed down electronically, circulated to the parties’
representatives via email, uploaded to CaseLines, and released to SAFLII. The date
and time for the handing down of the judgment are deemed to be 10h00 on 2 4 March
2026.
Summary: Criminal appeal – sentence – rape of child under 16 years by uncle in
position of trust – prescribed minimum sentence of life imprisonment – whether
substantial and compelling circumstances justify lesser sentence – guilty plea,
remorse and rehabilitation urged – appeal dismissed.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from: The Regional Court for the Regional Division of North We st, held
at Tlhabane (Bafokeng) (Moeng RM, sitting as court of first instance):
1 The appeal is dismissed.
2 The sentence of life imprisonment imposed by the Regional Court on 13
February 2023, together with the ancillary orders made in terms of s 103(1) of
the Firearms Control Act 60 of 2000, s 50 of the Criminal Law Amendment Act
(Sexual Offences and Related Matters) 32 of 2007, and s 120 of the Children’s
Act 38 of 2005, are confirmed.
____________________________________________________________________
JUDGMENT
____________________________________________________________________
PETERSEN ADJP (HENDRICKS JP concurring):
Introduction
[1] The appellant, T[...] D[...] B[...], was convicted in the Regional Court for the
Regional Division of North West, held at Tlhabane (Bafokeng), on one count of rape
in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (the Sexual Offences Act), read with s 51(1) of the
Criminal Law Amendment Act 105 of 1997 (t he Minimum Sentences Act). His
conviction followed upon a plea of guilty tendered on 7 February 2023 and accepted
by the regional magistrate, Mr Moeng, in terms of s 112(2) of the Criminal Procedure
Act 51 of 1977 (the CPA). On 13 February 2023 the magistr ate sentenced the
appellant to life imprisonment. Ancillary orders were made in terms of s 103(1) of the
Firearms Control Act 60 of 2000 (declaring him unfit to possess a firearm); s 50 of
the Sexual Offences Act (directing inclusion of his name in the Nat ional Register of
Sexual Offenders); and s 120 of the Children’s Act 38 of 2005 (declaring him
undesirable to work with children).
[2] The appellant appeals against sentence only, with the leave of the magistrate. He
contends that the magistrate erred in failing to find that substantial and compelling
circumstances existed justifying a lesser sentence than life imprisonment, and that the
sentence is so severe as to induce a sense of shock.
The facts
[3] The facts appear from the appellant’s statement in t erms of s 112(2) of the CPA
and the record of the proceedings. On 02 February 2022 at Lethabong in the Regional
Division of North West, the appellant, then 26 years of age, raped his niece, M[...]
B[...], aged nine years.
[4] The appellant was lying in bed w hen M[...], who was accustomed to visiting and
playing at the family home, entered his bedroom and asked him for R5 to buy snacks.
He told her he had no money. She sat next to him on the bed and took his cellphone
to play with. Whilst she played with the pho ne, the appellant undressed her,
undressed himself to the knee, and inserted his penis into her vagina. During the
commission of the act he says he came to his senses, realised what he was doing was
wrong, and stopped.
[5] M[...] was examined at a hospital the same day. The medico -legal report (J88
form, admitted at sentencing as Exhibit C) recorded that the hymen was red but
without fresh tears; the clinical findings were suspicious of penetration, pending
forensic results; possible semen and blood staining was present on the complainant’s
undergarments; and the complainant was neither intoxicated nor drugged. Her height
was 137 cm and weight 35 kg.
[6] The appellant has one previous conviction of theft for which he paid an
admission of guilt fine of R500 i n 2015. He was unemployed, relying on occasional
gardening work at approximately R150 per occasion, approximately twice monthly.
He has no dependants, resides with his mother and siblings, and attained Grade 9 as
his highest level of education.
The proceedings in the regional court
[7] The matter was first enrolled in the Magistrates’ Court for the District of
Rustenburg on 01 June 2022 and transferred to the Regional Court at Tlhabane on 05
July 2022. After several postponements to enable consultation and preparation, a
formal pre-trial conference was conducted on 27 September 2022. Item 14 of the pre -
trial conference minutes recorded the appellant’s intended plea as ‘not guilty’. The
matter was set down for trial on 10 November 2022. The complainant and o ther state
witnesses were absent on that date . They were writing examinations , and the matter
was remanded to 18 January 2023 for trial.
[8] It was only on 18 January 2023, when M[...] appeared at court for the first time,
that the appellant’s legal represe ntative indicated an intention to plead guilty. The
matter was remanded to 07 February 2023 for that purpose. On that date the appellant
pleaded guilty, his representative read the s 112(2) statement into the record, and both
counsel addressed the court in mitigation and aggravation of sentence respectively.
The matter was remanded to 13 February 2023 for sentence.
[9] In mitigation, counsel submitted from the bar that the appellant was 26 years of
age, had no dependants, was unemployed, had one previous c onviction of theft
unrelated to the present offence, and should be treated as a first offender for present
purposes. Three factors were urged as substantial and compelling. The guilty plea; an
apology tendered to the complainant’s mother; a confession to a priest; and prospects
of rehabilitation.
[10] The state, in aggravation, relied on the J88 report. Counsel submitted that the
complainant was the appellant’s nine -year-old niece; that the offence was committed
complainant was the appellant’s nine -year-old niece; that the offence was committed
at the family home where she had every reaso n to feel safe; that the appellant, as her
uncle, occupied in our culture a father -figure position of trust which he grossly
abused; that he was in his sound and sober senses throughout; and that the prevalence
of sexual offences against children in this c ourt’s jurisdiction demanded firm
sentencing.
The magistrate’s reasoning
[11] The magistrate delivered a thorough and careful sentencing judgment. He
correctly identified the applicable framework under s 51(1) of the Minimum
Sentences Act and the triad of considerations in S v Zinn1: the interests of society, the
personal circumstances of the accused, and the nature of the offence. He referred to
the salutary caution in S v Rabie 2 that a judicial officer should approach sentencing
neither in a spirit of anger nor of misplaced pity, but with humane understanding of
human frailties, while never flinching from firmness where firmness is called for.
[12] On the appellant’s age of 26 years, the magistrate held, with reference to S v
Matyityi3, that age was at best a neutral factor. By 2 6, the appellant could not be
described as immature, and no evidence had been placed before the court of any
relevant immaturity or external influence upon his conduct.
[13] On remorse, the magistrate examined the appellant’s conduct throughout the
proceedings. He noted that at the September 2022 pre -trial conference the intended
plea was recorded as not guilty and the defence had identified a witness to be called.
The guilty plea was tendered only on 18 January 2023, when the complainant first
appeared at court. The magistrate found, correctly, that the plea did not bespeak
genuine remorse.
[14] On the apology to the complainant’s mother and confession to a priest, the
magistrate found these to be bare, unsubstantiated assertions. No particulars of the
circumstances were furnished; the identity of the priest was undisclosed; and whether
the mother accepted the apology was unknown. The magistrate also noted a
significant lacuna: the prosecution had placed no victim impact statement before the
1S v Zinn 1969 (2) SA 537 (A).
2S v Rabie 1975 (4) SA 855 (A).
1S v Zinn 1969 (2) SA 537 (A).
2S v Rabie 1975 (4) SA 855 (A).
3S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA).
court, leaving the court without information about the effect of the offence on the
complainant and her family.
[15] The magistrate identified the following aggravating circumstances: the
complainant’s age of nine years; her relationship with the appellant as his niece; the
domestic setting in which the offence occurred, where she came regularly and had
every reason to feel safe; the appellant’s position of trust as her uncle; the fact that he
was in his sound and sober senses and acted deliberately; and the absence of any
provocation or intoxication. He referred extensively to Maila v S 4, in which the
Supreme Court of Appeal dealt with materially identical facts, an uncle raped his nine
year old niece within the family home , and confirmed that life imprisonment was
neither disproportionate nor unjust in such circumstances.
[16] Having weighed all mitigating factor s against the aggravating ones, the
magistrate found that no substantial and compelling circumstances existed justifying
a departure from the prescribed minimum sentence. He imposed life imprisonment
and made the ancillary orders referred to above.
The grounds of appeal
[17] The notice of appeal dated 10 March 2023 advances these grounds: (a) the
sentence induces a sense of shock and is inappropriate; (b) insufficient weight was
given to the guilty plea; (c) the rehabilitation element was not properly cons idered;
(d) the mitigating factors inherent in the facts were not adequately weighed; (e) the
apology to the complainant’s mother was not adequately considered; and (f) the
magistrate overemphasised the seriousness of the offence, the interests of society, the
prevalence of the offence, and the retributive element of sentencing.
The applicable legal framework
[18] Section 51(1) of the Minimum Sentences Act provides that a Regional Court or
High Court shall sentence a person convicted of an offence listed i n Part 1 of
Schedule 2 to imprisonment for life. Section 51(3) permits a lesser sentence where
Schedule 2 to imprisonment for life. Section 51(3) permits a lesser sentence where
4Maila v S (429/2022) [2023] ZASCA 3 (23 January 2023).
the court is satisfied that substantial and compelling circumstances exist; in that
event, the court must enter those circumstances on the record.
[19] The rape of a child below the age of 16 years falls within Part 1 of Schedule 2.
M[...] was nine years old. The prescribed minimum sentence of life imprisonment
accordingly applied, and the magistrate was obliged to impose it unless satisfied that
substantial and compelling circumstances existed.
[20] The proper approach to substantial and compelling circumstances is settled. A
court must consider all relevant mitigating and aggravating factors and ask whether,
on a balanced assessment, the cumulative mitigating fac tors are such as to render the
prescribed sentence unjust in the particular circumstances.5
[21] The mere presence of mitigating factors does not constitute substantial and
compelling circumstances. Those factors must be truly substantial in the sense of
rendering the prescribed sentence unjust .6 Courts must not lightly deviate from the
minimum sentence .7. Parliament has spoken; courts are obliged to impose the
minimum sentence unless there are truly convincing reasons for departure, and
predictable, principled outcomes are foundational to the rule of law.8
Analysis
The guilty plea
[22] A plea of guilty carries mitigatory weight. It spares the complainant the ordeal
of testifying and confronting her abuser in court, and it reflects co -operation with the
criminal justice system. In cases involving young and vulnerable complainants these
considerations are of particular significance.
[23] The weight to be accorded to a plea of guilty must, however, be assessed in its
particular context. At the September 2022 pre -trial conference the intended plea was
5S v Malgas [2001] ZASCA 13; 2001 (2) SA 1222 (SCA); S v Vilakazi [2008] ZASCA 87; 2012 (6) SA 353 (SCA).
6Matyityi fn 3 above para 23.
7Malgas fn 5 above para 25.
8Matyityi fn 3 above para 23.
not guilty; the defence had identified a witness to be called. On 10 November 2022,
when the matter was set down for trial, there was no intimation of an intention to
plead guilty. The complainant was absent that day. On 18 January 2023, when M[...]
appeared at court, the appellant, for the first time, indicated through his representative
an intention to plead guilty. The magistrate found, correctly, that this change of plea
was prompted by the realisation that the witnesses were present and would testify.
[24] In Matyityi9 para 13 the Supreme Court of Appeal said:
‘There is moreover a chasm between regret and remorse. 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 acknowledgement of the extent of one’s error. Whether an 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 surrounding actions of the accused rather than what he
says in court that one should rather look. In order for remorse to be a valid consideration the
penitence must be sincere and the accused must take the court fully into his or her
confidence.’
[25] The appellant’s s 112(2) statement was sparse. Beyond admitting the elements
of the offence, he provided no account of what caused or motivated him to commit
the act, no explanation of what M[...] did or said while being undressed, and no
account of ho w he came to stop. He said nothing about the effect of the offence on
the complainant or her family. Assessed against the standard in Matyityi10, he did not
take the court fully into his confidence. The guilty plea carries minimal mitigatory
weight. The magistrate was correct so to find.
Remorse, the apology and the confession to a priest
[26] The assertion that the appellant had apologised to the complainant’s mother and
[26] The assertion that the appellant had apologised to the complainant’s mother and
had confessed to a priest was advanced from the bar without any corroboration. The
identity of the priest was not disclosed. The circumstances of the apology were
unexplained. Whether the mother accepted or rejected the apology was unstated. No
9Matyityi fn 3 above para 13.
10Ibid.
victim impact statement was tendered. Bare, unsubstantiated assertions of remorse,
apology and confession cannot constitute substantial and compelling circumstances.
The magistrate was correct so to hold.
Prospects of rehabilitation
[27] Rehabilitation is a recognised objective of sentencing. Its weight is inextricably
linked to the moral blameworthiness of the offender and the evidence before the
court. No positive evidence of any rehabilitative capacity was placed before the court
beyond the submission from the bar. The appellant has a prior conviction. His
conduct throughout the proceedings , maintaining a not guilty plea, identifying a
fictitious defence witness, and changing his plea only when the witnesses arrived, did
not attest to a person who had engaged meaningfully with the gravity of what he had
done.
[28] Where the crime is as grave as the deliberate rape of a nine -year-old child by a
person in a position of familial trust, the o bjectives of deterrence and retribution
assume particular prominence. They do not extinguish rehabilitation as a
consideration, but they cannot be subordinated to it in the absence of any cogent
evidence of genuine rehabilitative capacity.
The nature of the offence, the interests of society and the Minimum Sentences Act
[29] The appellant contends that the magistrate overemphasised the seriousness of
the offence and the interests of society. This contention cannot be sustained. The
magistrate’s assessment of these factors was both appropriate and legally sound.
[30] M[...] was nine years old. The appellant was her uncle. In our cultural context,
an uncle stands in the position of a father figure. M[...] had no reason to fear visiting
the family home or enterin g the appellant’s bedroom – it was part of her regular
childhood experience. She came to ask for money for snacks. Whilst she sat next to
him playing with his phone, he deliberately undressed her and penetrated her. He was
him playing with his phone, he deliberately undressed her and penetrated her. He was
sober and in full possession of his faculties. There was no provocation.
[31] In Maila v S11 para 60, decided three weeks before the sentencing in this matter,
Mocumie JA said:
‘For an uncle who is in the position of trust just as a father to rape his own niece is
unquestionable and dese rves no other censure than that imposed by the trial court – life
imprisonment. The sentence is not disproportionate to the serious offence that the appellant
committed on a nine -year-old child, his niece, and the sentence is thus justified in the
circumstances.’
[32] The facts in Maila were materially identical to those before us: an uncle had
raped his nine -year-old niece within the family home. That judgment is binding and
directly applicable.
[33] The magistrate’s references to S v MM 12, S v Abrahams13, Bailey v S 14, and the
judgment of this court in Diniso v S 15 which dealt with an uncle who raped his nine -
year-old niece in this very division, demonstrate a correct and thorough application of
binding and persuasive authority. Together with Matyityi16 these authorities make
plain that Parliament has ordained life imprisonment for this category of offence and
that courts must not deviate from it except for truly compelling reasons. None exist
here.
[34] The magistrate was also alert to the caut ion in Maila17 and Matyityi18 that the
interests of society do not mean the gratification of a demand for revenge, but the
perspective of the informed, reasonable member of the community who seeks a just
sentence. His weighing of these interests was dispassionate and correct.
Conclusion
11Maila fn 4 above para 60.
12S v MM [2012] ZASCA 155; 2013 (2) SACR 292 (SCA).
13S v Abrahams 2002 (1) SACR 116 (SCA).
14Bailey v S (454/11) [2012] ZASCA 154 (1 October 2012).
15 Diniso v S (CA 14/2022) (North West Division of the High Court, 7 February 2023, Petersen J and Reddy AJ).
16Matyityi fn 3 above.
17Maila fn 4 above.
18Matyityi fn 3 above.
[35] Having considered the full record, the magistrate’s sentencing judgment, and
the grounds of appeal, I am satisfied that the magistrate approached sentencing with
the care and circumspection commensurate with the gravit y of the offence. He
correctly identified and applied the applicable legal framework. He considered each
mitigating factor advanced on behalf of the appellant and gave cogent, adequate
reasons for rejecting them as substantial and compelling circumstances. His
assessment of the aggravating factors is unassailable.
[36] I am not persuaded that the sentence of life imprisonment induces a sense of
shock in the facts and circumstances of this case. A 26 -year-old man who, in his
sound and sober senses, deliberately undresses his nine -year-old niece and rapes her
in the supposed sanctuary of her own family home, in gross breach of the trust that an
uncle occupies in our cultural context, and who maintained a not guilty plea until the
complainant appeared at court, is – as the magistrate correctly found – a dangerous
person. Life imprisonment is the sentence Parliament has prescribed for his offence.
The mitigating factors advanced fall far short of constituting substantial and
compelling circumstances. The appeal falls to be dismissed.
Order
[37] In the result, the following order is made:
1 The appeal is dismissed.
2 The sentence of life imprisonment imposed by the Regional Court on 13
February 2023, together with the ancillary orders made in terms of s
103(1) of the Firearms Control Act 60 of 2000, s 50 of the Criminal La w
Amendment Act (Sexual Offences and Related Matters) 32 of 2007, and
s 120 of the Children’s Act 38 of 2005, are confirmed.
_______________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH
AFRICA NORTH WEST DIVISION, MAHIKENG
I agree.
_______________________
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA NORTH
WEST DIVISION, MAHIKENG
Appearances
For the appellant: Adv C Britz
Instructed by: Legal Aid South Africa,
Mahikeng
For the respondent: No appearance