SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case no: CA66/2024
Regional Court Case no:RC228/2020
In the matter between:
D[...] M[...] M[...] 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 24 March 2026.
Summary: Criminal appeal — conviction and sentence — kidnapping and rape
— child complainant aged nine years — formal admissions in terms of s 220 of
the Criminal Procedure Act 51 of 1977 — whether admissions freely and
voluntarily made — held, no basis to impugn admissions — trial court’s finding
of guilt unassailable — sentence — prescribed minimum sentences — rape of
child under 16 years — accused bearing previous conviction for rape,
committed present offences whilst on parole — whether systemic delay in
finalising trial constitutes substantial and compelling circumstances — held,
undue delay does not in itself constitute substantial and compelling
circumstances where offences are of the utmost gravity and accused has prior
conviction for a similar offence — appeal against conviction dismissed —
appeal against sentence dismissed.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Regional Court, Potchefstroom (Regional Magistrate L Mabille
presiding).
1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.
3. The co nviction and sentence imposed by the Regional Court,
Potchefstroom, are confirmed.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP (HENDRICKS JP CONCURRING):
Introduction
[1] The appellant was convicted in the Regional Court, Potchefstroom, of one
count of kidnapping (Count 1) and two counts of rape (Counts 2 and 3). He was
sentenced to five years’ imprisonment on Count 1 and life imp risonment on
Counts 2 and 3 (taken together for sentencing purposes), with the sentences
ordered to run concurrently, resulting in an effective term of life imprisonment.
[2] He appeals against both his conviction and sentence with the leave of the
court a quo. The appeal comes before the present panel of judges since the
previous panel assigned by the Judge President failed to attend to and deliver
judgment in the matter.
Background facts
[3] The charges arose from events that occurred on 27 July 2020. T he
complainant was the appellant’s nine -year-old niece, K[...] K[...]. The appellant
initially pleaded not guilty to all three counts.
[4] The State led the evidence of the complainant, who testified via closed -
circuit television with the assistance of an intermediary. She described how the
appellant called her from her home, carried her on his back to bushes and a
dam, undressed her, and raped her vaginally and anally on three separate
occasions. He threatened to kill her and her family if she disclosed the abuse.
[5] The complainant was cross -examined by the defence and remained
consistent in her evidence. After her testimony, the matter was postponed
several times. During this period the appellant terminated the mandate of his
initial attorney, Ms van der Linde. Further delays arose from the collapse of the
Potchefstroom court building, which caused difficulties in obtaining the
transcribed record of the proceedings.
[6] On 03 June 2024, the appellant’s new legal representative, Ms Erwee,
placed on record formal admissions in terms of s 220 of the Criminal Procedure
Act 51 of 1977. The appellant admitted in writing that: (a) he knew the
complainant as a family member; (b) the complainant was nine years old at the
time of the incident; (c) he unlawfully a nd intentionally deprived the
complainant of her freedom by taking her from her home to the bush on 27 July
2020; (d) he unlawfully and intentionally committed an act of sexual
penetration by inserting his penis into the complainant’s vagina without her
consent; and (e) he unlawfully and intentionally committed a further act of
sexual penetration by inserting his penis into the complainant’s anus without her
consent. The appellant further admitted that the DNA results linking him to the
offence were correct.
[7] On the basis of the complainant’s testimony and the formal admissions,
the trial court found the appellant guilty on all three counts. The court then
admitted evidence of a previous conviction: on 15 April 2019 the appellant had
been released on parole after being convicted of rape and attempted murder, for
which he had received a sentence of 15 years’ imprisonment with five years
suspended. He was on parole when he committed the present offences.
[8] In sentencing, the trial court considered the vict im impact statement, the
social worker’s report, the J88 medical report, and the correctional supervision
report. It found no substantial and compelling circumstances to deviate from the
prescribed minimum sentences and accordingly imposed life imprisonmen t on
the two rape counts, with five years on the kidnapping count to run
concurrently.
The appeal against conviction
[9] The appellant challenges his conviction on the ground that the trial court
erred in accepting the formal admissions in circumstances wh ere the
proceedings had been protracted and the child had already testified. He contends
that the admissions were made under duress arising from the lengthy pre -trial
detention.
[10] The appeal against conviction is devoid of merit. The admissions were
made in terms of s 220 of the Criminal Procedure Act, which provides that any
fact admitted in writing and signed by the accused is conclusive proof of that
fact. The appellant confirmed the admissions in open court and appended his
signature to the document. There is not a shred of evidence on the record to
suggest that the admissions were not freely and voluntarily made. The fact that
the complainant had already testified does not affect the validity or the
evidentiary weight of the admissions.
[11] Moreover, the admissions were entirely consistent with the complainant’s
detailed and credible testimony. That testimony alone, without the admissions,
would have amply sustained the convictions. The trial court’s finding of guilt is
unassailable.
The appeal against sentence
[12] The principles governing appeals against sentence are settled. An appeal
court may only interfere where the trial court misdirected itself in a material
respect or where the sentence is so disproportionate or shocking that no
reasonable court would have imposed it.
[13] The prescribed minimum sentences applicable are: five years’
imprisonment for kidnapping (Schedule 2, Act 105 of 1997) and life
imprisonment for rape where the victim is a child under the age of 16 years and
the accused has a previous conviction for rape (Schedule 2, Act 105 of 1997,
read with s 51(1)). The trial court correctly identified these minimum sentences.
[14] In determining whether substantial and compelling circumstances exist to
depart from the prescr ibed sentence, the court must consider the cumulative
effect of all relevant factors.
[15] The appellant’s main submission on appeal is that the trial court
misdirected itself by not giving sufficient weight to the delay in finalising the
trial. The appellant points to the period of more than four years that he spent in
custody awaiting the conclusion of the trial. He contends that a significant part
of that delay was not his fault, citing the collapse of the Potchefstroom court
building and the protracted time taken to obtain the trial transcripts.
[16] The trial court, when dealing with the delay, remarked that the delay was
‘your own fault because you kept on changing lawyers’. The appellant argues
that this remark was a material misdirection. It is neces sary to examine the
chronology. The appellant was arrested on 19 December 2020. The trial
commenced on 25 April 2022, when the complainant testified. Thereafter the
matter was postponed on several occasions. On 13 December 2022 the appellant
terminated his first attorney’s mandate. On 19 January 2023 he indicated that he
wished to re-apply for legal aid. A new attorney was appointed and appeared on
04 April 2023. From that point until 29 April 2024 the matter was delayed
because the transcribed record of th e proceedings, which was necessary for the
new legal representative to prepare, was not available. The delay in obtaining
the transcripts resulted from the collapse of the Potchefstroom court building
and the consequent loss of or damage to digital recordings.
[17] While it is true that the appellant contributed to the delay by terminating
his first attorney’s mandate and requiring new legal representation, the greater
part of the delay after April 2023 was systemic and not of his making. The trial
court’s statement that the delay was entirely the appellant’s fault was therefore
an over-simplification.
[18] However, a misdirection of that nature does not automatically vitiate the
sentence. The question is whether, when all the relevant factors are properly
evaluated, the sentence of life imprisonment is nonetheless justified. We are
persuaded that it is.
[19] In Maila v S 1, the Supreme Court of Appeal considered the impact of
systemic delay on a sentence for a serious sexual offence. The court held that
while undue delay is a factor to be taken into account, it does not in itself
constitute a substantial and compelling circumstance where the offences are of
the utmost gravity and where the accused has a previous conviction for a similar
offence. The court emp hasised that the primary purpose of sentencing remains
the protection of society and the vindication of the rights of victims, especially
vulnerable children. The court stated:
‘The delay in finalising the trial, much of which was not the appellant’s fault ,
is regrettable. But the nature of the offences and the appellant’s previous
conviction for rape render the prescribed sentence of life imprisonment not
disproportionate. The courts must guard against elevating systemic delay to a
factor that automaticall y trumps the legislative imperative of prescribed
minimum sentences.’
[20] The facts of the present case are strikingly similar to those in Maila. The
appellant was on parole for a previous rape conviction when he committed the
present offences. He raped h is own nine -year-old niece on three separate
occasions during a single abduction. The victim impact statement reveals the
devastating and enduring psychological harm suffered by the child: she suffers
from insomnia, nightmares, abdominal pains, difficulty concentrating, and a
pervasive fear of men. The victim’s mother reported that the child continues to
experience physical symptoms, including vaginal and anal bleeding.
[21] The mitigating factors advanced by the appellant , his ‘youth’ (27 years at
the time of the offence), the alleged presence of a child he claims not to have
met before, and his late admissions pale in comparison to the aggravating
features. The appellant’s previous conviction for rape demonstrates a persistent
pattern of predatory sexual offending. The fact that he was on parole at the time
pattern of predatory sexual offending. The fact that he was on parole at the time
1 Maile v S (429/2022) [2023] ZASCA 3 (23 January 2023)
shows a complete disregard for the law and for the opportunity for rehabilitation
that had been extended to him.
[22] The admissions, while welcomed by the court, came only after the child
had already endured the trauma of testifying in detail about the abuse. They did
not spare her the ordeal of giving evidence. In these circumstances, the weight
to be attached to the admissions is limited.
[23] The appellant’s pre -trial detention of more than four years , while
substantial, is not so disproportionate as to render a life sentence unjust. A
lengthy period of pre -sentence detention, even where not attributable to the
accused, does not necessarily constitute a substantial and compelling
circumstance when balanced against the gravity of the offence and the interests
of society. The purpose of the minimum sentencing legislation is to ensure that
serious crimes are met with severe sentences, and the fact that an accused has
been in custody for a long period await ing trial does not automatically
undermine that purpose. In Loyiso Ludidi and Others v S 2 this very question
engaged the Supreme Court of Appeal which identified the question and answer
thereto, succinctly as follows:
‘[1] Does the time an accused person has spent as an ‘awaiting trial prisoner’
constitute substantial and compelling circumstances when a statutorily ordained
sentence of life imprisonment has been imposed? That is the question to be answered
in this appeal. Th e Western Cape Division of the High Court (the high court) found
that it did not, but granted leave to appeal to this Court.
…
[7] When sentencing finally took place, the accused had been in custody for a period
of five years and eight months…
…
[11] Courts have considered whether the length of time spent in custody as an
‘awaiting trial’ prisoner is a substantial and compelling circumstance warranting the
imposition of a lesser sentence. In 2007 the full court of the Gauteng Division of the
imposition of a lesser sentence. In 2007 the full court of the Gauteng Division of the
High Court, Johannesburg in S v Brophy and Another , reduced finite sentences on the
basis that the time spent in custody while awaiting trial was a substantial and
2 Loyiso Ludidi and Others v S (983/2022; 056/2024) [2024] ZASCA 162; 2025 (1) SACR 225 ( SCA) (29
November 2024); S v Brophy and Another 2007 (2) SACR 56 (W) paras 16 -19.Radebe and Another v S [2013]
ZASCA 31; 2013 (2) SACR 165 (SCA) paras 13 -14; Director of Public Prosecutions North Gauteng: Pretoria
v Gcwala and Others [2014] ZASCA 44; 2014 (2) SACR 337 (SCA) paras 26-30.
compelling circumstance. Following a Canadian decision of Gravino (70/71) 13 Crim
LQ 434 (Quebec Court of Appeal), the full court held that the period spent in custody
pre-sentencing was equivalent to a sentence twice that length. This was because of the
harsh conditions that awaiting trial prisoners were subjected to, in comparison to
convicted prisoners. The court then reduced the sentences by subtracting the time
spent in prison awaiting trial by each appellant and multiplying it by two.
[12] This ap proach was rejected by this Court in Radebe and Another v S which
criticised the application of any mechanical formula. Rather, the time spent in custody
awaiting trial is one of the factors to consider when determining whether there is
justification for a lesser sentence than the prescribed minimum sentence. The
circumstances of each case should be assessed on its own merits. Similarly
in Director of Public Prosecutions North Gauteng: Pretoria v Gcwala and
Others, this Court held that the trial court misdi rected itself by applying the formulas
and increased the sentences of imprisonment accordingly.
[13] It is now trite law that in respect of finite sentences there is no hard and fast rule
as to the weight to be afforded to pre -sentencing incarceration. It is but one of the
factors to take into consideration when determining the existence of substantial and
compelling circumstances. In addition, a sentencing court should take into account the
reasons for the prolonged period of detention prior to sentencing.
[14] In S v Solomon and Others ,3 commenting on the effect of lengthy pre -
sentencing incarcerations on life imprisonment, Rogers J endorsed the view of
Goosen J, as he was then, in S v Kammies.4 The conceptual difficulty with a sentence
that has no determinate maximum period was acknowledged. A court cannot approach
a life sentence as anything other than a sentence which is imposed for the rest of that
a life sentence as anything other than a sentence which is imposed for the rest of that
person’s life. It cannot be ‘reduced’ by the period spent in custody awaiting trial and it
would b e improper for a court to take into the account the possibility of
parole. Goosen J
suggested that the most appropriate course of conduct would be to antedate the
sentence. In Solomon, the court held that life imprisonment means a sentence which
extends for as long as that person is alive. Absent the prospect of parole, a person
‘would not have been released sooner on the hypothesis of no interval between arrest
and sentencing’.
[15] This Court, in dealing with a sentence of life imprisonment i n Ncgobo v
S5, confirmed that the period spent in custody before conviction and sentencing is not,
on its own, a substantial and compelling circumstance. It is merely a factor in
determining whether the sentence imposed is disproportionate and unjust. It was held
3 S v Solomon and Others [2020] ZAWCHC 118; 2021 (1) SACR 533 (WCC) para 24.
4 S v Kammies 2019 JDR 2600 (ECP) para 38.
5 Ncgobo v S [2018] ZASCA 6; 2018 (1) SACR 479 (SCA) para 7.
that the two years spent in custody would make a minimal impact on a sentence of life
imprisonment and did not render the sentence shockingly disproportionate.
[16] Here, the period spent in custody of five years and eight months was indeed a
long one. There were inordinate delays. The high court requested the parties to
address the reason for the delay at the commencement of the sentencing procedures.
The high court concluded that the delays were largely attributable to the appellants
and thei r legal representatives. Initially the appellants launched a protracted and
unsuccessful bail appeal with a result that the first pre -trial conference in the high
court was more than two years after their arrest. The pre-trial procedures were unduly
delayed due to ‘serial non -attendances’ by the legal representative who represented
Mr Ludidi and Mr Chwayi. When the matter had been in pre -trial management for
two years in the high court, the judge case -managing the trial refused to certify it
ready for trial until the legal representative made an appearance at court. It was then
set down for trial six months later on 3 August 2021. Thereafter, it seemed that apart
from the disruptions due to COVID, the trial ran relatively smoothly until completion
on 22 February 2022. A lengthy and comprehensive judgment was delivered on 18 -19
May 2022. It appears that had they wished to do so, the appellants and their legal
representatives could have considerably shortened the period they spent awaiting trial.
[17] If one turns to the offences for which the appellants were convicted, these were
heinous. They were hired assassins willing to murder whoever was identified if they
were paid for the deed. There is nothing disproportionate about their sentences of life
imprisonment. Regarding the period in custody as awaiting trial prisoners, unless this
is an exceptionally long period of time to which the conduct of the accused persons
is an exceptionally long period of time to which the conduct of the accused persons
has not materially contributed, this in my view, can never in and of itself, be a
substantial and compelling circumstance where life imprisonment is imposed. The
role of courts is to ensure that any sentence passed is a fair one having regard to the
crime committed and the individual circumstances of the accused.
[18] The high court did not misdirect itself when it found that the lengthy pre -
sentencing incarceration period did not amount to substantial and compelling
circumstances justifying a deviation from the prescribed minimum sentence of life
imprisonment.’
[24] We have considered the trial court’s evaluation of the facts and its
reasons for imposing life imprisonment. The trial court was acutely aware of the
appellant’s personal circumstances and of the delays, but concluded that there
were no substantial and com pelling circumstances to deviate from the
prescribed sentence. That conclusion is, in our view, correct. The sentence is not
shockingly inappropriate; it is eminently proportionate to the offences, the
appellant’s history, and the interests of society.
[25] The period of pre -sentence detention should not be disregarded. On the
contrary, it is a factor that must be taken into account in the administration of
the sentence. The Department of Correctional Services has administrative
mechanisms to ensure that time spent in custody awaiting trial is considered in
the computation of sentences and in determining parole eligibility. Form J24 is
the prescribed instrument for bringing such periods to the attention of the
Department. It is appropriate that this court direct that the appellant’s lengthy
period of pre -sentence detention be brought to the attention of the Department
of Correctional Services through the completion and submission of Form J24,
so that it may be given due consideration in accordance with the applicable
policies and regulations.
[26] This court has previously endorsed the use of Form J24 to ensure that
periods of pre -sentence detention are properly recorded and considered by the
correctional authorities. It is a mechanism that gives practical effect to the
principle that time spent in custody awaiting trial is relevant to the overall
period of incarceration that an offender will serve. While it does not affect the
lawfulness or appropriateness of the sentence imposed, it ensures that the
administrative authorities are fully informed of all relevant facts when making
decisions regarding the implementation of the sentence.
Conclusion
[27] The appeal against conviction is without merit and must fail. The appeal
against sentence is also without meri t. The trial court’s imposition of life
imprisonment, having properly weighed the relevant factors, falls within the
range of sentences that a reasonable court could impose on these facts. There is
no misdirection warranting interference.
Order
[28] In the result the following order is made:
Order
[28] In the result the following order is made:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.
3. The conviction and sentence imposed by the Regional Court,
Potchefstroom, 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: Mr T R Semino
Instructed by: Legal Aid South Africa, Mahikeng.
For the respondent: Adv J J van Niekerk
Instructed by: Director of Public Prosecutions, Mahikeng.