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IN THE NORTH WEST HIGH COURT, MAHIKENG
In the matter between:
CLIFFORD STEFORD ABRAHAMS
AND
THE STATE
DATE OF HEARING
DATE OF JUDGMENT
FOR THE APPELLANT
FOR THE RESPONDENT
CASE NO: CA 53/2025
COURT A QUO: RC 194/2017
Appellant
Respondent
06 February 2026
25 March 2026
Adv. Gissing
Adv. Tlatsana
Corum: HENDRICKS JP & MATLHAPE AJ
JUDGEMENT
NO
NO
NO
NO
Delivered: This judgment was handed down electronically by circulation
to the parties' legal representatives via email. The date and
time for hand-down is deemed to be 1 0h00 on 25 March
2026.
ORDER
--.-
Resultantly, the following order is made:
(i) The appeal against sentence is dismissed.
JUDGEMENT
Summary
Appeal against sentence - trial court imposed a sentence of 12 years
imprisonment of which 4 years is suspended on certain conditions -
powers of a court of appeal to interfere with a sentence imposed are very
limited - principles restated.
HENDRICKS JP
[1] Mr. Clifford Steford Abrahams (appellant) was arraigned before the
Regional Court for the Regional Division of the North West, sitting
at Potchefstroom and charged with two counts of rape and one
count of sexual assault committed on 01 April 2017. He was
convicted of two counts of attempted rape and one count of sexual
assault. On 03 September 2019, the three counts were taken
together for the purpose of sentence and he was sentenced to
twelve ( 12) years imprisonment, of which four ( 4) years is
suspended for a period of five (5) years, on condition that he is not
again convicted of contravening section 55 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007,
committed during the period of suspension. An application for leave
to appeal both the conviction and sentence were made, with leave
to appeal been granted only against the sentence imposed. This
appeal against sentence is therefore with leave of the trial court.
[2] With much of the evidence been either common cause or not
seriously contested, a brief expose of the relevant material facts of
this matter is as follows. The appellant and the complainant were
both in a nightclub in Potchefstroom on the night in question.
Although they did not went there together, at some stage they
danced together. The complainant, who was accompanied by
friends, were to leave the club to make her way back to her student
residence, when the friends first wanted to visit the ladies' room. The
complainant waited for them.
[3] While so waiting, she was approached by the appellant who offered
to take her to her place of residence with his motor vehicle. She
obliged. Instead of taking her to her residential place, he drove to
his place of abode. She was not only surprised but also terrified. He
stopped his motor vehicle at his place and at first forced himself onto
her against her will and consent. He then performed fellatio upon
her inside the motor vehicle after undressing her of her panty. He
attempted to penetrate her vaginally but could not because he could
not get an erection. He then ordered her to alight and he took her
into his house. She pretended to play with his dog whilst buying time
in order to send text messages stating that she was about to be
raped. One of the messages was sent to Mr. Ahmed Naceh, the
bouncer of the night club that they attended.
[4] The appellant ordered her into the bedroom where he undressed
her as well as himself. He once more attempted to penetrate her
vaginally but again without success, as he once again failed to get
an erection. He then forced her to perform fellatio on him. Being
afraid of him, she obliged, although it was against her will and
without her consent. Mr. Ahmed Naceh, the bouncer, reacted on the
text message sent by the complainant and went to the house of the
appellant. He found the complainant and took her into his motor
vehicle. She then reported the ordeal that befell her to him. A
criminal charge was laid against the appellant.
[5] The sentence of an effective term of eight (8) years imprisonment is
assailed on the basis that it is grossly excessive and induces a
sense of shock. Furthermore, that the trial court failed to consider
an alternative form of punishment instead of a direct term of
imprisonment. Further alternative that a sentence in terms of the
provisions of either section 276 ( 1) (h) or section 276 ( 1) (i) of the
Criminal Procedure Act (CPA)1 will be a more appropriate sentence
1 Criminal Procedure Act 51 of 1977.
under the circumstances of this case. No issue is taken with the
ancillary order declaring the appellant unfit to possess a firearm2.
[6] Sentence is pre-eminently within the exercise of a discretion by the
trial court, which must be exercised judicially and not arbitrary or
capriciously3. A court of appeal will not lightly interfere with the
exercise of this discretion by the trial court. It will only interfere if
there is a serious misdirection(s) committed; or where an irregularity
is committed by the trial court that vitiates the proceedings; or where
the sentence imposed is shockingly severe and excessive and
therefore disturbingly inappropriate to such an extent that no
reasonable court would have imposed it. The disparity between the
sentence imposed by the trial court and the sentence that the court
of appeal would have imposed had it been the trial court, must be
significantly different to such an extent that the sentence imposed is
rendered grossly unfair. If it is not, a court of appeal will not interfere
with the sentencing discretion exercised by the trial court4.
[7] The personal circumstances of the appellant are as follows. He was
55 years of age in 2019 when he was sentenced. [He is now 62
years of age.] He was treated as a first offender by the trial court.
He is the father of six children of whom three were still minors as at
2019 and were dependent upon him for their support. He was
gainfully employed earning a salary of approximately R52 000.00
2 S 105 of t he Firearm Control Act 60 of 2000.
3 S v Rabie 1975 (4) SA 855 (A). 4 S v Petkar [1988J 2 All SA 550 (A).
per month. He is divorced. As aggravating circumstances are the
fact that the complainant was 21 years of age at the time of this
ordeal. The appellant could easily have been her father, and as such
she trusted him when he offered her a lift to her student residence.
He is convicted of two counts of attempted rape and one count of
sexual assault, which offences are not only serious but also very
prevalent in the area of jurisdiction of the trial court. The complainant
was severely traumatized as a result of what happened to her at the
hands of the appellant. She was still undergoing counselling in 2019,
two years after the ordeal.
[8] Advocate Gissing, acting on behalf of the appellant, laid much
emphasis on the fact that the complainant sustained no physical
injuries, as she had not been assaulted. The absence of injuries as
a result of the absence of physical assault does not trivialize the
crimes perpetrated, although it may be taken into account in
imposing a suitable sentence. This sentiment was expressed by
Advocate Tlatsana acting on behalf of the respondent. He submitted
that that is the very reason why four ( 4) years imprisonment was
suspended by the trial court. He furthermore contended that a non
custodial sentence will not only trivialize the seriousness of the
offences committed, but will send a wrong message to society and
under-emphasize and undermine the interest of society. All factors
considered, he contended that no misdirection was committed by
the trial court.
[9] To reiterate, the powers of a court of appeal to interfere with the
sentencing discretion exercised by a trial court are extremely
limited. This is trite. Advocate Grissing made a valiant attempt in
order to persuade this Court to interfere with the sentence imposed
and he passionately canvassed for a non-custodial sentence or a
sentence of correctional suspension. Section 276 ( 1 )(h) alternatively
section 276 (1 )(i) were advocated for. This, Advocate Tlatsana
stated will made the offenses appear to be trivial. It is trite that a
court of appeal will not merely substitute a sentence because it is
different from the sentence imposed. Additionally, the Supreme
Court of Appeal held in Kekana v The State5 that the court will not
interfere with the sentence imposed by the court a quo unless it is
satisfied that the sentence has been vitiated by a material
misdirection or is disturbingly inappropriate.
[1 O] Reliance was placed by Adv. Gissing on the matter of S v Truyens6
for the proposition that the sentence imposed is shockingly
excessive and severe and should be replaced with an appropriate
sentence in terms of section 276 ( 1 )(i). The facts in the Truyens
matter are quite distinguishable from the facts of this case. Truyens
concern theft of cattle which was sold in order to acquire money to
pay for the medical needs of his children.
[11] In the case at hand, there were two unsuccessful attempts to rape
the complainant, that is why the appellant was convicted of two
5 2013 (1) SACR 101 (SCA}
6 2012 (1) SACR 79 (SCA).
counts of attempted rape, as well as one count of sexual assault,
with regard to the fellatio . These offences are not only more serious
but are also very prevalent. The complainant's privacy was invaded.
Furthermore, the aggravating features of this case by far outweigh
the personal circumstances of the appellant and the mitigating
features, although mindful of the appellant's advanced age.
[12] Having regard to all the facts and circumstances of this case, I am
unpersuaded that the learned Regional Magistrate committed any
irregularity or that the sentence imposed is shockingly severe and
excessive. I am inclined to agree with contentions of Adv. Tlatsana
that a sentence either in terms of section 276 (1) (h) or 276 (1) (i)
will send out a wrong message to society and will erode public
confidence in the criminal justice system. It will also appear that the
offences are trivialized.
[13] In the absence of any misdirection by the trial court, this Court sitting
as a court of appeal is not at liberty to interfere with the sentencing
discretion exercised by the trial court. Consequently, the appeal
against the sentence imposed should fail.
Order
[14] Resultantly, the following order is made:
(i) The appeal against sentence is dismissed.
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
I agree
B MATLHAPE
ACTING JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG