SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE CIRCUIT DIVISION, EAST LONDON)
CASE NO.: CC37/2025
In the matter between:
THE STATE
and
A[...] N[...] Accused
JUDGMENT ON SENTENCE
MOLONY AJ:
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[1] The accused in this matter has been found guilty of one count of rape (in
regard to his 74 years old aunt) and one count of robbery with aggravating
circumstances.
[2] A discretionary minimum sentence of life imprisonment is accordingly
applicable in regard to the count of rape, whilst the robbery coun t attracts a
discretionary minimum sentence of 15 years’ imprisonment, unless this court
finds that substantial and compelling circumstances exist which justify the
imposition of a lesser sentence.
[3] It is trite that when determining an appropriate sent ence the nature of the
crime, the circumstances of the offender and the interests of society must be
considered, and that relevant mitigating and aggravating factors must be
weighed in order to determine a sentence which is proportionate under the
circumstances.
[4] The accused’s personal circumstances, as placed on record by his legal
representative, are the following:
(a) He was born on 17 July 1991 and is currently 34 years old.
(b) He is single and has no children.
(c) He passed Std 8 at school but left halfway through Std 9 due to
financial constraints.
(d) After school he did odd jobs for a while (such as gardening, working in
shops or washing cars). He would earn a maximum of R500 per week,
if it was a good week.
(e) He saved his money and attended a course, which permitted him to
qualify as a security guard. He began working in this capacity in 2015
in the Western Cape.
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(f) He returned to the Eastern Cape in 2018, in order to assist his parents,
and found work as a security guard earning R 4 000 per month.
(g) At the time of his arrest he was working as a security guard for another
company, earning R 6 000 per month.
(h) Both of his parents are no longer working and receive an old-age grant.
His father is ill and is in and out of hospital. The accused believes his
father suffers from diabetes and ulcers. His mother suffers from high
blood pressure. The accused was financially supporting his parents,
as well as looking after them, prior to his arrest.
(i) He has 4 siblings, 2 of which are older than him, and 2 of which are
younger. The older siblings are not in a position to assist their parents
financially, and the accused also financially assists the younger 2
siblings, who are unemployed. His family has been suffering since he
was incarcerated, as no one else has been able to fulfill his role within
the family.
[5] The accused is a first offender and has been in custody since 30 December
2024.
[6] It was submitted on the accused’s behalf that the following aspects,
cumulatively considered, constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence:
(a) Through his legal representative he expressed his remorse and
tendered an apology to the complainant in reg ard to what he had done
to her. This was intended to be an apology for both offences.
(b) The complainant did not suffer financial loss, as the accused asked his
parents to reimburse her. He did this out of his own accord.
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(c) The fact that he had consumed some alcohol on the day in question
had a negative influence on his actions and he acte d out of character –
the fact that he is a first offender demonstrates this.
(d) His work history and the fact that he looks after his parents and siblings
speaks to him being a responsible person, who is capable of
rehabilitation.
(e) The accused has no t delayed the matter and has played ‘open cards’
with the court in regard to the robbery charge.
(f) A sentence must contain an element of mercy, and I was urged not to
‘over punish’ the accused.
[7] It was submitted that, as the offences occurred during the same sequence of
events, any sentences imposed be ordered to run concurrently.
[8] The state, in submitting that the only appropriate sentences were life
imprisonment (in regard to the rape) and 15 years’ imprisonment (in regard to
the robbery), submitted that:
(a) The accused was feeling self -pity and was not genuinely
remorseful.
(b) The complainant’s money was not immediately returned to her – the
accused waited until he had been arrested and then asked his
parents to reimburse the complainant.
(c) The accused took advantage of the complainant, who was a family
member, and raped her in her own home. There was therefore a
domestic violence element to these offences.
(d) The accused penetrated the complainant twice (vaginally and
anally).
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(e) The impact of the crime on the complainant could not be
overlooked.
(f) It was aggravating that the accused, who was 33 at the time, raped
someone who was 73 years old.
(g) Rehabilitation was unlikely in the absence of remorse.
[9] In considering whet her or not there are substantial and compelling
circumstances present which justify the imposition of a lesser sentence, I will
remain mindful of the guidance provided by the matter of S v Malgas 2001 (2)
SA 1222 (SCA), in which inter alia the following is stated in paragraph 25:
‘D. The specified sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of the policy underlying
the legislation and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E. The Legislature has however deliberately left it to the courts to decide whether the
circumstances of any particular case call for a departure from the prescribed
sentence. While the emphasis has shifted to the objective gravity of the type of crime
and the need for effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F. All factors (other than those set out in D above) traditionally taken into account in
sentencing (whether or not they diminish moral guilt) thus continue to play a role;
none is excluded at the outset from consideration in the sentencing process.
G. The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick ('substantial and compelling') and must be
such as cumulatively justify a departure from the standardized response that the
Legislature has ordained.’
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[10] In this regard the following passage from the matter of S v Dyantyi 2011 (1)
SACR 540 (E) at paras 21 – 23 is apposite:
‘[21] To conclude on this point, I believe that I should also remind myself of what was
said in S v Holder 1979 (2) SA 70 (A) at 81B, when Rumpff CJ made what I consider
to be a telling point, which is that a sentencing court should take cognisance of the
times in which sentencing takes place. Much has been said by communities in all
walks of life in this country in relation to crimes su ch as rape in particular, and abuse
of women and children in general. One can thus safely say that all right -thinking
members of the public view such crimes with revulsion. Taking this factor into
account therefore enjoins this court to view crimes such as rape in an extremely
serious light and, consequently, when it comes to punishment, courts must, after
taking due cognisance of all relevant factors, impose sentences that reflect the
revulsion of society at the commission of such crimes. This is, however, not to say
that the courts should abdicate their sentencing discretion and allow themselves to be
swayed by public opinion; it is, rather, more to say public interest dictates that the
concerns of society and society's disapproval of certain crimes should receive some
recognition in the sentences that courts impose, especially those offences that strike
at the very heart of the values and ethos of our Constitution.’
[11] In the matter of Director of Public Prosecutions Eastern Cape v Coko 2024 (2)
SACR 113 (SCA) at paragraph 6, it was stated that:
‘Regrettably, 26 years since the decision of this court in Chapman, the scourge of
rape has shown no signs of abating. On the contrary, rape is not only rife, bu t has
also reached pandemic proportions. And, sadly, it is women and children, being the
most vulnerable in society, who bear the brunt of this scourge.’
[12] Part I of Schedule 2 of Act 105 of 1997 specifically includes the rape of an
[12] Part I of Schedule 2 of Act 105 of 1997 specifically includes the rape of an
older person, as defined in section 1 of the Older Persons Act 13 of 2006, as
one of the offences in terms of which a discretionary minimum sentence of life
imprisonment is applicable. An ‘older person’ is defined in the Older Persons
Act as someone who is 65 years or older, in the case of a male, and 60 years,
or older, in the case of a female.
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[13] The co mplainant in this matter is elderly and she was, and is, particularly
vulnerable. The accused utilized physical force in order to ensure that she
could not scream and remained compliant. To add insult to injury, the
accused is the complainant’s nephew, a nd so was a family member that she
loved and trusted. The incident in question occurred in the sanctity of the
complainant’s own home, which is meant to be a safe space.
[14] In regard to the aspect of remorse, the matter of S v Matyityi 2011 (1) SACR
40 (SCA) at paragraph 13 provides the following guidance:
‘There is, moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct, but that d oes 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 since rely 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 unless 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 to 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.’
[15] Having said the above, it would be inappropriate to over -emphasize the
interests of the community and to ignore the cumulative effect of all of the
relevant factors which must be considered.
relevant factors which must be considered.
[16] It cannot be overlooked that the accused, at the age of 34, is a first offender
who attempted to better himself in order to gain employment as a security
guard, in the Western Cape. He then moved back to the Eastern Cape to
take care of his family. He wa s, until the night in question, to be considered
as being a responsible and productive member of society. Given the
aforementioned, I accept as mitigating that having imbibed a certain amount
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of alcohol on the day in question, the accused’s conduct was ou t of character,
and that, what occurred was ultimately more opportunistic than planned.
[17] Whilst he pleaded not guilty in regard to the offence of rape I accept that,
given the obvious issues this has caused within his family, the self -evident
shame which follows such a conviction (both to the offender and their family),
to some extent motivated his apology. The fact that the accused’s mother
had to be admonished to remain silent whilst the complainant testified
evidences the fractured family dynamic r eferred to by the accused’s legal
representative. Given these considerations, I accept that the accused is in
fact remorseful for what he has done, and is capable of rehabilitation.
[18] I am therefore persuaded that substantial and compelling circumstances exist,
which would render the imposition of the relevant minimum sentences
disproportionate.
[19] The offences in question nonetheless call for lengthy terms of imprisonment. I
am satisfied, given that the offences in question occurred consecutively during
the course of one incident, that it would be appropriate for the sentences to
run concurrently.
[20] I accordingly impose the following sentences:
(a) In regard to the RAPE conviction, the accused is sentenced to 20
years’ imprisonment.
(b) In regard to the conviction of ROBBERY WITH AGGRAVATING
CIRCUMSTANCES, the accused is sentenced to 13 years’
imprisonment.
(c) The above-mentioned sentences are to run concurrently.
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___________________
N MOLONY
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the State : Mr Mgenge
Instructed by : Director of Public Prosecutions
Makhanda
For the Defence : Mr Nomlala
Instructed by : Legal Aid South Africa
East London
Heard: 09, 10, 11 & 12 March 2026
Delivered: 13 March 2026