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THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: CA & R 47/2025
In the matter between:
M[...] N[...] Appellant
and
THE STATE Respondent
Neutral citation: N[...] v The State (CA&R 47/2025) 20 March 2026.
Coram: Tlaletsi JP et Tyuthuza AJ.
Heard: 02 March 2026.
Delivered: 20 March 2026.
Summary: Criminal Law – Appeal – Against sentence of life imprisonment on rape
count and – 10 years’ imprisonment on each count of assault with intent to do
grievous bodily harm – Whether court a quo erred in its finding that substantial and
compelling circumstances do not exist – No compelling and substantial
circumstances proven – appeal on sentence dismissed.
ORDER
"'.
1. The appeal against the sentence is dismissed.
JUDGMENT
Tyuthuza AJ
Introduction:
[1] The appellant, Mr N[...], was charged in the regional division of Upington on
the following offences:
1.1. Rape, in contravention of section 3 read with sections 1, 2, 50, 55,
56(1), 56A, 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act ,1 read with sections 92(2), 94,
256, 257 and 261 of the Criminal Procedure Act ,2 and the provisions of
section 51 (1) and Schedule 2 of the Criminal Law Amendment Act ,3
further read with section 120 of the Children’s Act4 (count 1);
1.2. Assault with intent to do grievous bodily harm read with section
51(2)(b) Part 3 of Schedule 2 of the Criminal Law Amendment Act
(count 2); and
1.3. Assault with intent to do grievous bodily harm read with section
51(2)(b) Part 3 of Schedule 2 of the Criminal Law Amendment Act
(count 3).
[2] In accordance with section 51(1) of the Criminal Law Amendment Act ( “the
CLAA”), the court is obliged to sentence an offender who rapes someone
1 32 of 2007.
2 51 of 1977.
3 105 of 1997.
4 38 of 2005.
under the age of 16 to life imprisonment , unless substantial and compelling
circumstances are present to impose a lesser sentence as contemplated in
section 51(3) of the CLAA.
[3] The appellant was legally represented for the duration of the trial and at the
commencement of the trial , was informed that the minimum sentences apply
to all the charges. The appellant pleaded not guilty to all three counts levelled
against him.
[4] The complainant was 11 to 13 years old when the alleged offences were
perpetrated against her and she was 15 years old when she testified.
[5] On 29 May 2025, the appellant was found guilty in respect of all three counts
and on 3 June 2025, sentenced as follows: on count 1 he was sentenced to
life imprisonment; 10 years’ imprisonment on count 2; and 10 years’
imprisonment on count 3. The sentences on count s 2 and 3 were ordered to
run concurrently with the sentence on count 1.
[6] Accordingly, the appellant has an automatic right to appeal to this Court under
the provisions of section 309(1)(a) of the Criminal Procedure Act.
[7] The appellant appeals against all the sentences imposed in the court a quo.
[8] The grounds of appeal can be summarised as follows:
8.1. That the trial court had erred in imposing the severest form of sentence,
namely life imprisonment on count 1 , and in so doing, erred in finding
that there were no substantial and compelling circumstances warranting
deviation from the prescribed minimum sentence on count 1.
8.2. That the court a quo had erred in finding that there were also no
substantial and compelling circumstances warranting deviation from the
prescribed minimum sentence on counts 2 and 3.
8.3. That the trial court, on all counts , had erred in over-emphasising the
seriousness of the offence s, the interests of society , and the deterrent
and retributive purpose of sentencing.
Analysis:
[9] The issue of sentence on appeal, where the imposition of the sentence is
governed by the provisions of section 51 of the CLAA, was dealt with in S v
PB5 where the Supreme Court of Appeal (SCA) stated as follows:
“What then is the correct approach by a court on appeal against a sentence imposed
in terms of the Act? Can the appellate court interfere with such a sentence imposed
by the trial court’s exercising its discretion properly, simply because it is not the
sentence which it would have imposed or that it finds shocking? The approach to an
appeal on sentence imposed in terms of the Act should, in my view, be different to an
approach to other sentences imposed under the ordinary sentencing regime. This, in
my view, is so because the minimum sentences to be imposed are ordained by the
Act. They cannot be departed from lightly or for flimsy reasons. It follows th erefore
that a proper enquiry on appeal is whether the facts which were considered by the
sentencing court are substantial and compelling, or not.”
[10] The approach as cited above, was also accepted in this Court in Van Rooy v
S6 where it was stated:
“Accordingly, the correct approach in considering an appeal on a sentence imposed
under the provisions of section 51 of the CLAA as set out in S v PB, is to assess the
evidence on the record and make a determination as to whether such evidence
constitutes substantial and compelling grounds to depart from the prescribed
minimum sentence or not. After the decision in the SCA in the case of S v PB, that is
the correct point of departure.”
5 2013 (2) SACR 533 (SCA) para 20.
6 [2024] ZANCHC 50 para 6.
[11] It is trite that the appeal court does not have a general discretion to interfere
with the sentence imposed by the tri al court. It will only interfere with a
sentence on appeal if it appears that the trial court has exercised its discretion
in an improper or unreasonable manner.7 In S v Kgosimore ,8 the SCA puts it
in the following terms:
“It is trite law that sentence is a matter for the discretion of the court burdened with
the task of imposing the sentence. Various tests have been formulated as to when a
Court of appeal may interfere. These include whether the reasoning of the trial court
is vitiated by misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock or whether there is a striking
disparity between the sentence imposed and the sentence the Court of appeal would
have imposed. All these formulations, however, are aimed at determining the same
thing; viz whether there was a proper and reasonable exercise of the discretion
bestowed upon the court imposing sentence. In the ultimate analysis this is the true
inquiry. Either the discretion was properly and reasonably exercised or it was not. If it
was, a Court of appeal has no power to interfere; if it was not, it is free to do so. ”
(Footnotes omitted.)
[12] In Director of Public Prosecution, Gauteng v Tsotetsi,9 Coppin AJA said: “[a]s
held in Malgas confirmed in S v Dodo , and explained in S v Vilakazi , even
though ‘substantial and compelling’ factors need not be exceptional , they
must be truly convincing reasons, or ‘weighty justification’, for deviating from
the prescribed sentence. The minimu m sentence is not to be deviated from
lightly and should ordinarily be imposed.”
[13] On behalf of the appellant, it was argued that the following factors should
have been considered cumulatively as substantial and compelling factors to
justify a deviation from the minimum sentence: (a) the personal circumstances
justify a deviation from the minimum sentence: (a) the personal circumstances
of the appellant , (b) the absence of any serious physical violence committed
against the complainant during the rape incidents , (c) the lack of permanent
emotional injuries to the complainant, (d) remorse shown by the appellant ,
and (e) that the prospects of rehabilitation were good.
7 Gerber v S [1998] 4 All SA 315 (NC).
8 1999 (2) SACR 238 (SCA) para 10.
9 2017 (2) SACR 233 (SCA) para 27.
[14] As alluded to above, it is trite that in order for the court to deviate from the
prescribed minimum sentence, the court must consider whether the personal
circumstances of the accused are substantial enough to avoid being called
‘flimsy’.10
[15] The appellant relied on the following personal circumstances: (a) he is 42
years old, (b) he is (was) married to the mother of the complainant, (c) he has
a 15 year old son, (d) he pays maintenance for his son in the amount of
R2,000.00, (e) at the time of his arrest he was employed as a general worker
at Skytech where he earned about R 9,000.00 per month, (f) he is healthy, (g)
he attended school until grade 6, (h) he has one previous conviction for
trespassing in 2012, and (i) he has been in custody for a year and 9 months.
[16] In S v Vilakazi,11 the SCA pronounced that the personal circumstances of the
accused recede into the background in cases of serious crimes and held that:
“Once it becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is married or single, whether he
has two children or three, whether or not he is in employment, are in themselves
largely immaterial to what that period should be, and those seem to me to be the kind
of ‘flimsy’ grounds that Malgas said should be avoided.”
[17] Mr Fourie, for the appellant , correctly conceded that the appellant’s
circumstances were not compelling. The appellant’s personal circumstances
are not out of the ordinary. We are satisfied that these factors, either
individually or cumulatively, do not represent substantial and compelling
circumstances to allow this Court to deviate from the prescribed minim um
sentences.
[18] It was argued, on behalf of the appellant, that the absence of physical injuries
on the count of rape must be taken into account when determining the
proportionately of the sentence imposed. The respondent emphasised that it
10 S v Malgas 2001 (1) SACR 469 (SCA) para 25.
10 S v Malgas 2001 (1) SACR 469 (SCA) para 25.
11 2009 (1) SACR 552 (SCA); 2012 (6) SA 353 (SCA) para 58.
is trite law, as provided in section 51(3)( aA)(ii) of the CLAA, that the lack of
physical violence or injuries during rape is not compelling circumstances.
Indeed, Mr Fourie , in his written submissions, conceded that the lack of
physical injuries is but a factor to be considered and not compelling
circumstances on its own.
[19] In light of the circumstances of this case, it might as well be that the appellant
would not have to inflict serious physical injuries to bring an 11 -year-old to
succumb to his will. What cannot be ignored is the power the parental
authority gave the appellant over the complainant. The appellant was married
to the complainant’s mother and the three lived together. This was essentially
the complainant’s father, the man who took her to school sometimes, and
bought her gadgets like cell phones . Without unnecessarily casting criticism
on the complainant’s mother, the appellant was the man who was let by the
very complainant’s mother to take the complainant to the clinic for a wound he
inflicted. He was even involved in taking the complainant to the clinic for
family planning when he was, unbeknownst to the mother of the complainant
but not without suspicion, the one raping the complainant. It is so that the
appellant took advantage of an environme nt he had to some degree created ,
and which enabled his perversion. His role was to protect the complainant and
her mother , instead , he preyed upon the complainant in the sanctity of her
home.
[20] Courts must be careful not to cross the line and make the presence of
physical violence a requirement for the imposition of life imprisonment in rape
cases. In the words of Spilg J; “[o]ne should therefore not draw the conclusion
that the absence of physical injuries will mean that th e rape victim’s suffering
will be any lesser or that the offence, where the victim is under -aged, should
be treated less seriously for purposes of sentence.” 12 While relatively similar
be treated less seriously for purposes of sentence.” 12 While relatively similar
decided cases such as S v SMM13 and S v Stuurman14 may be considered for
guidance as submitted by the appellant , sentencing calls for an individualised
12 Radebe v S [2019] 3 All SA 938 (GP) para 48.
13 2013 (2) SACR 292 (SCA).
14 2017 JDR 1688 (NCK).
approach wherein each case must be dealt with in light of all its surrounding
circumstances.15
[21] In the same length, the submission about the lack of expert evidence on the
impact of the rape on the complainant does not assist the appellant in casu. It
has been held that rape impacts on the psychological and emotional well -
being of the victim with potentially life -changing consequences, even if not
immediately apparent. Thus:
“Emotional and psychological trauma and their long term sequelae comprise a self -
contained enquiry which may or may not be influenced by the presence of physical
injury but is not ipso facto diminished by the latter’s absence.”16
[22] We agree with the trial court that the fact that the State only provided the
victim statement does not mean that sentencing should be approached as
though the complainant suffered or continues to suffer no psychological harm.
Mpati JA in S v Mahomotsa17 summed it as follows:
“While it may theoretically be possible that a victim of rape . . . may not suffer any
psychological damage other than that experienced while the attack is taking place
and in its immediate aftermath, it is in the highest degree unlikely. Where as here, the
complainants were young girls, it is quite unrealistic to suppose that there will be no
psychological harm. To quantify its likely duration and degree of intensity, of course,
is not possible in the absence of appropriate evidence, but that does not mean that
one should approach the question of sentence on the footing that there was no
psychological harm.”
[23] In any event, t he victim statement in casu demonstrates that the complainant
is still traumati sed and is struggling to come to terms with what happened,
what the appellant did to her. It was conceded by the appellant in the court a
quo that the complainant had even attempted suicide . It cannot be ignored
that the complainant had to endure multiple incidents of rape over a period of
that the complainant had to endure multiple incidents of rape over a period of
15 S v Samuels 2011 (1) SACR 9 (SCA) para 9 ; S v D 1995 (1) SACR 259 (A) at 260E ; S v PB 2013
(2) SACR 533 (SCA) para 16.
16 Radebe v S (Supra fn 12) para 48.
17 2002 (2) SACR 435 (SCA) para 11.
three years. Further, on two of the five incidents of rape , the complainant was
raped while still in pain after being assaulted with a hosepipe and fists ,
respectively. The complaints’ evidence was that after b eing beaten with a
hosepipe, she could not lie on her back due to the injuries and yet , the
complainant still went on to rape her while she lay on her stomach.
[24] Further, the appellant had even threatened to kill the complainant should she
tell anyone about the rape, his conduct affected her schooling as she failed
grade 4 in 2020, not to mentioned that she was also taken out of school in
2023. Sometimes she was prohibited from engaging with other children, and
given a reputation of being a naughty, promiscuousness child who was
sleeping around with men. Ultimately, the complainant was separated from
her mother in 2023 and moved to Gauteng to live with her grandmother. The
fact that the appel lant painted such a picture about his own stepdaughter,
knowing well that he is the one raping her, is beyond understanding . The
appellant’s conduct was at all levels reprehensible. He preyed on the
vulnerability of his stepdaughter and destroyed her childhood. This was a
perverse abuse of his power over a child whose only wish was to come live
with her mother . The trial court cannot be said to have overemphasised the
fact that it is especially in cases of this nature that courts are entrusted to act
judiciously and to protect the most vulnerable members of society, such as
children, through the criminal justice system in which the public places its
confidence.
[25] It truly cannot be overstated that r ape must rank as the worst invasive and
dehumanising violation of human rights. It is an intrusion of the most private
rights of a human being, in particular a woman, and any such breach is a
violation of a person’s dignity which is one of the pillars of our Constitution.18
[26] It was submitted on behalf of the appellant that he showed remorse for his
[26] It was submitted on behalf of the appellant that he showed remorse for his
conduct after being sentenced, and that this is indicative of him being able to
be rehabilitated. The SCA has expressed the difference between remorse and
regret as follows:
18 S v Nkunkuma and Others 2014 (2) SACR 168 (SCA) para 17.
“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 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 surrounding 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 unle ss 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 t o commit the deed; what has since provoked his or her
change of heart; and whether he or she does indeed have a true appreciation of the
consequences of those actions.”19
[27] The appellant pleaded not guilty to the charges levelled against him and
continued to deny the allegations. He only apologised for his conduct after he
was sentenced to life imprisonment. Prior to the sentencing, the appellant
neither took any accountabili ty for his actions, nor demonstrated a ‘gnawing
pain of conscience’. The appellant raped and tormented his minor
stepdaughter for a period of three years and would have probably continued
doing so, had he not been caught red -handed in June 2023. The court a quo
correctly found that the appellant showed no grain of remorse. Accordingly,
contrary to Mr Fourie’s submissions before this Court, the appellant’s conduct
throughout the trial provides nothing for an inference that t here are high
prospects of rehabilitation.
prospects of rehabilitation.
[28] Turning to the sentence on counts 2 and 3 of assault with the intent to do
grievous bodily harm. Two incidents of assault on the defenceless minor
complainant were detailed. In the first one, t he complainant ’s wrists were
fastened with a rope and hung from the ceiling. As alluded to above, s he was
then continuously beaten on the back and on the thighs with a hosepipe. The
19 S v Matyityi [2010] 2 All SA 424 (SCA) para 13.
complainant’s mother testified that she had seen red marks on the
complainant’s buttocks . It was the complainant’s evidence that t he injuries
caused her so much pain that she could not lie on her back. Further, although
the medical examination was conducted about 8 months after the first in cident
of assault, the report still demonstrated faded horizontal bruises on the
complainant’s right shoulder blade area and on her upper interior thigh.
Dr Figuero testified that those injuries were probably produced by hosepipe or
a similar blunt object.
[29] During the second incident, the complainant was hit by fists and suffered a
black eye. She was also burnt on the arm , and it was the complainant’s
evidence that th e wound still hurts sometimes , despite having healed . The
complainant’s mother also testified that she had witnessed the appellant ‘boot’
the complainant- kick her with his boots on. Ultimately, t he court a quo ’s
finding, that the circumstances of this case are such that the factors relied
upon by the appellant to establish compelling circumstances warranting a
deviation from the prescribed minimum sentences fall short , cannot be
disturbed.
[30] Having applied the tests laid down and having considered all the relevant
facts, factors and circumstances, we are of the considered view that there
were no substantial and compelling circumstances justifying a departure from
the prescribed minimum sentence on all counts . Furthermore, there was no
misdirection in relation to the sentences imposed on all three counts. Finally,
the sentences imposed do not induce a sense of shock and they are not
disproportionate.
[31] In the result, the following order is made:
1. The appeal against the sentence is dismissed.
_____________________
T TYUTHUZA
ACTING JUDGE
NORTHERN CAPE DIVISION
I concur.
_____________________
LP TLALETSI
JUDGE PRESIDENT
NORTHERN CAPE DIVISION
Appearances
For the Appellant: Mr P. Fourie
On instructions of: Legal-Aid South Africa
For the Respondent: Adv T. Engelbrecht
On instructions of: The Director of Public Prosecutions