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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: CA 12/2024
REGIONAL COURT CASE NO: RC H220/13
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
A[...] B[...] P[...] APPELLANT
And
THE STATE RESPONDENT
CORAM: SCHOLTZ AJ et FOURIE AJ:
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e -mail. The date that the judgment is deemed to be handed
down is 16 March 2026
ORDER
The following order is made:
i. The Appeal is dismissed.
ii. The conviction and sentence of the Trial Court are confirmed.
JUDGMENT
FOURIE AJ
INTRODUCTION
[1] This is a criminal appeal against sentence only. The A ppellant was
convicted by the Regional Court in GA Rankuwa, North West Province,
on 29 January 2014, subsequent to a guilty plea tendered in terms of
Section 112 (2) of the Criminal Procedure Act 51 of 1977, on a charge of
rape on a 15-year-old girl.
[2] The charge preferred against the Accused was formulated as follows:
That the Appellant is charged with contravention of section 3 read with
Section 1, 56 (1), 57, 58, 59 and 60 and 61 of Act 32 of 2007 the Sexual
and Related Amendment Act, and read further with Section 256 and 261
of the Criminal Procedure A ct 51 of 1977 and further read with section
51 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as
amended, in that upon or about 20 May 2013 at or near Rabokala in the
Regional Division of Audi, the said Appellant did wrongfully,
unlawfully and intentionally commit an a ct of sexual penetration to wit
L[...] T[...] by penetrating her vagina with his penis without her consent.
Provisions of Section 51 (1) of the A ct 105 of 1997 apply in that the
complainant, who was allegedly raped, was 15 years old at the time of
the incident.
[3] The Appellant was legally represented for the duration of his Trial and
tendered a plea of guilty to the charge by submitting a statement in terms
of Section 112 (2) of the Criminal Procedure Act 51 of 1997.
[4] Pursuant to the Plea of guilty contained in the statement in terms of
Section 112(2) of the Criminal Procedure Act 51 of 19 77, the Court a
quo, having been satisfied that the Appellant is guilty of the offence to
which he has pleaded guilty, convicted Appellant on a charge of rape and
imposed a sentence of Life imprisonment;
[5] The matter comes before us in terms of the provisions of section 309 (1)
(a) of the Criminal procedure Act 51 of 1977 , as amended by the
provisions of the Judicial Matters Am endment Act 42 of 2023 entitling
the Appellant to an automatic right of appeal on both his conviction and
sentencing once the court a quo has imposed a sentence of life
imprisonment, Appellant, having pleaded guilty on the preferred charge
noted an Appeal against sentencing only.
THE GROUNDS OF APPEAL
[6] The Appellant notes his appeal against sentencing on the following
aspects:
(a) The sentence imposed is shockingly severe and inappropriate;
(b) The Learned Magistrate erred by not imposing a shorter term of
imprisonment, taking into consideration the following factors:
(i) The period that the appellant spent in custody awaiting the
finalisation of the matter;
(ii) That the Appellant pleaded guilty to the charge against him.
(c) The Court erred in overemphasizing the following factors:
(i) The seriousness of the offence;
(ii) The deterrent effect of the sentence;
(iii) The interest of the society.
(d) The sentence imposed is strikingly inappropriate in that it is out of
proportion to the totality of the accepted facts in mitigation.
(e) The Court overemphasized the seriousness of the offence at the
expense of the personal circumstances of the Appellant.
THE RELEV ANT EVIDENCE BEFORE THE COURT A QUO IN RESPECT
OF THE CONVICTION
[7] The Appellant's plea of guilty, as tendered in a Statement in terms of
Section 112(2) of the Criminal Procedure Act 51 of 1977, renders the
facts of the matter simple and undisputed. On 10 May 2013, the Appellant
was at Rabokala in the Regional Division of Audi . He went to the toilet
and found the complainant inside. He pinned her down to the floor , came
on top of her , and penetrated her vagina with his penis. He admitted that
his actions w ere unlawful, that he had the intention of committing the
said offense , and that he was never given permission by the said
complainant to have sexual intercourse with her . At all material times, he
knew that his actions were unlawful and punishable by law . Appellant
also confirmed that he did not dispute the complainant’s age of 15.
DISCUSSION IN RE SENTENCING
[8] The Court a quo when finding the Appellant guilty on a charge of rape
invoked the provisions of section 51 (1) of The Criminal Law
Amendment Act, Act 105 of 1997: “ Notwithstanding any other law, but subject
to subsections (3) and (6), a regional court or a High Court shall sentence a person it
has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for
life” The specific reference under Part 1 Schedule 2 reads as follows:
“Rape as contemplated in Section 3 of the Criminal Law (Sexual offences and Related
Matters) Amendment Act, 2007 (b)where the victim (i) is a person under the age of 16
years;”
[9] Section 51 (3) (a) of this Act provides a judicial discretion and states: “If
any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exists which justifies the imposition of a lesser sentence
than the sentence prescribed in those subsections , it shall enter those circumstances
on the record of the proceedings and must thereupon impose such lesser sentence….”
[10] As per S V Rabie 1974 (4) 855 AD at 862 G , “punishment should fit the
criminal as well as the crime, be fair to the society and be blended with a measure of
mercy according to the circumstances”.
[11] In S v Bogaards 2013 (1) SACR 1 (CC) at para [41], Khampepe J in the
Constitutional Court held the following:
“It can only do so [i.e. interfere with the sentence imposed] where there has been an
irregularity that results in the 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.”
[12] If a Trial Court exercises its judicial discretion in terms of Section 51 (3)
(a) Under the Criminal Law Amendment Act, to justify imposing a lesser
sentence than prescribed, the Court must be satisfied that substantial and
compelling circumstances exist.
[13] In the matter of S v Malgas 2001 (1) SACR 469 (SCA) at
paragraphs [7] to [9], the following was stated by Marais JA in the
SCA regarding sentencing and the implementation of the
provisions of section 51 of the Criminal Law Amendment Act and
the concomitant imposing of prescribed minimum sentences:
“…The very fact that this amending legislation has been enacted
indicates that Parliament was not content with that and that it w as no
longer to be “business as usual” when sentencing for the commission of
the specified crimes.
In what respects was it no longer business as usual? First, a court was
not to be given a clean slate on which to inscribe whatever sentence it
thought fit. Instead, it was required to approach that question conscious
of the fact that the legislature has ordained life imprison ment or the
particular prescribed period of imprisonment as the sentence which
should ordinarily be imposed for the commission of the listed crimes in
the specified circumstances. In short, the legislature aimed at ensuring a
severe, standardised, and con sistent response from the courts to the
commission of such crimes unless there were, and could be seen to be,
truly convincing reasons for a different response. When considering
sentence, the emphasis was to be shifted to the objective gravity of the
type of crime and the public’s need for effective sanctions against it. But
that did not mean that all other considerations were to be ignored. The
residual discretion to decline to pass the sentence which the commission
of such an offence would ordinarily attract plainly was given to the courts
in recognition of the easily foreseeable injustices which could result from
obliging them to pass the specified sentences come what may.
Secondly, a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to impose the
specified sentence. As was observed in Flannery v Halifax Estate
Agencies Ltd by the Court of Appeal, ‘a requirement to give reasons
concentrates the mind, if it is fulfilled the resulting decision is much more
likely to be soundly based - than if it is not’. Moreover, those
circumstances had to be substantial and compelling. Whatever nuances
of meaning may lurk in those words, their central thrust seems obvious.
The specified sentences were no t to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of the
policy implicit in the amending legislation, and like considerations were
equally obviously not intended to qualify as substantial and compelling
circumstances. Nor were marginal differences in the personal
circumstances or degrees of participation of co -offenders which, but for
the provisions, might have justified differentiating between them. But for
the rest I can see no warrant for deducing that the legislature intended a
court to exclude from consideration, ante omnia as it were, any or all of
the many factors tra ditionally and rightly taken into account by courts
when sentencing offenders…”
[14] The court a quo , in sentencing , had to give regard to the aggravating
circumstances that were argued prior to sentencing. Of importance w ere
the factors raised in the pre-sentencing report as follows:
“The offender raped his niece, a child who looked up to him for parental love and
protection, but instead the offender violated her safety . The child does not feel safe
as she was raped in the comfort of her own home by the one man who was supposed
to protect her. He plead guilty thus take responsibility for the crime he committed .
His choice to rape the victim when he knew he had a chronic illness which is
sexually transmitted putting the child`s life in danger makes the offender`s element
of remorse questionable”
[15] Having regard to the fact that the court a quo followed and implemented
the provisions of section 51(1) of the Criminal Law Amendment Act and
sentenced the appellant as aforesaid, this Court of appeal has to
determine whether the court a quo was correct in its finding that there
were no substantial and compelling circumstances to justify imposing
the minimum legislative sentence of life imprisonment.
[16] The following factors were placed before the court a quo to substantiate
substantive and compelling circumstances for the court a quo to
deviate
from the legislatively prescribed minimum sentences:
(a) The Appellant was 47 years old;
(b) He has four children, two of whom were minors;
(c) Appellant was employed as a security official , where he
earned R2 500.00 per month;
(d) The Appellant was in custody for a period of 9 months before
the finalisation of the matter;
(e) The Applicant pleaded guilty to the charge against him, which
is indicative of remorse on his part.
[17] Having regard to the applicable legal principles as set out above, these
factors cannot be considered as substantive and compelling to the effect
that it would justify a deviation from the legislatively prescribed
minimum sentence. In fact, the mere fact that a minor is raped is an
aggravating circumstance , and it was held in Director of Public
Prosecutions v Thabethe 2011 (2) SACR 567 (SCA) at 5 77 G -I that a
rape ordeal of children is “a crime which threatens the very foundation of
our nascent democracy.”
[18] I, therefore, cannot find that the Court a quo is shown to have misdirected
itself in some respect or that the sentence imposed was disturbingly
inappropriate that no reasonable court would have imposed it. The Court
a quo clearly exercised its discretion properly.
[19] I, therefore , find that the Appeal against sentencing stands to be
dismissed.
Order
[20] In the result, the following order is made
i. The Appeal is dismissed;
ii. The conviction and sentence of the Trial Court are confirmed.
_______________________
CM FOURIE
ACTING JUDGE OF THE HIGH COURT, NORTH WEST DIVISION,
MAHIKENG
I Agree
_____________________
HJ SCHOLTZ
ACTING JUDGE OF THE HIGH COURT, NORTH WEST DIVISION,
MAHIKENG
APPEARANCES
DATE OF HEARING : 13 JUNE 2025
JUDGEMENT HANDED DOWN : 16 MARCH 2026
FOR THE APPELLANT : Mr. T.R. SEMINO
FOR THE RESPONDENT : Adv B.T. CHULU