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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case No.: CA&R 102/2025
In the matter between:
W[...] N[...] Appellant
and
THE STATE Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
RUSI J
[1] The appellant was convicted and sentenced to life imprisonment on 11
June 2021 by the Bizana Regional Court. His conviction and sentence followed
his plea of guilty upon a charge of rape. The plea proceedings, during which the
appellant was legally represe nted, were in terms of section 112 of the Criminal
Procedure Act 51 of 1977 (the CPA).
[2] The sentence of life imprisonment is the minimum sentence prescribed by
section 51(1) of the Criminal Law Amendment Act 105 of 1997 (the CLAA)
where the victim of rape is below the age of 16 years. The victim in the present
matter was 7 years of age when the rape took place. The prescribed minimum
sentence for the offence could, in terms of section 51(3) of the same Act, be
departed from where the court was satisfied that there existed compelling and
substantial circumstances justifying the imposition of a lesser sentence.
[3] The court a quo found that no compelling and substantial circumstances
existed in the appellant’s case. Hence, the sentenced of life imprisonm ent. This
appeal, for which the appellant did not require leave of the court a quo, is
against that sentence.1 In this Court, the appellant was legally represented by Mr
Madywede, and Ms Bodlo appeared for the respondent.
The factual background
[4] In the court a quo, the prosecution had alleged that on or about 11 May
2017, the appellant raped [A.N.] then a 7-year-old girl, per vaginum. It became
a common cause fact that the complai nant is the appellant’s niece. After the
rape, the complainant was forced to relocate to Durban, KwaZulu -Natal
Province to live with her mother. For reasons that will become clearer later in
this judgment, it is necessary to reproduce the material portion of the appellant’s
plea explanation statement where he stated as follows:
“I wish to state as follows; on the 11 th day of May 2017, I enjoyed myself with my friends in
a local tavern. Late I went home (sic). On arrival I went to watch television at the lou nge. I
then undressed [A], her thighs (sic). She was sleeping on the mattress with other children at
the lounge. I also lowered my trouser to the knees. I then inserted my penis into her vagina. I
admit that [A] at that time was 7 years old. I admit that m y conduct on this day was against
the law. I am also remorseful for what I did.”
the law. I am also remorseful for what I did.”
1 Section 309(1) of the CPA provides for the automatic right of appeal to a person who has been sentenced by a
Regional Court to life imprisonment in terms of section 51(1) of the CLAA.
[5] It is on the strength of these facts that the appellant was convicted of rape.
Evidence of the complaint’s examination by Dr Sokoya was presented in the
form of the medic o-legal report (the J88). The complainant’s examination took
place on 13 May 2017, two days after the rape incident. Dr Sokoya’s clinical
findings were that the complainant had ‘purulent vaginal discharge with a
wound in the vagina’ . He concluded that thes e findings were in keeping with
‘pediatric sexual assault’.
[6] Following his conviction, the appellant contented himself with
submissions that his legal representative made from the bar in mitigation of
sentence. It was submitted on his behalf that he was 25 years of age. His highest
standard of education was Grade 10. He had no children and worked as a
builder and both his parents were deceased. He pleaded guilty to the offence
without wasting the court’s time and this was a sign of remorse notwithstandi ng
the fact that the available evidence overwhelmingly established his guilt. His
remorse became evident when he broke down during consultation in preparation
for the trial of his case. He had consumed liquor which impaired his faculties.
[7] The appellan t’s legal representative acknowledged, however, that being
under the influence of intoxicating alcohol when he committed the offence was
no excuse and would not exonerate the appellant from being punished in
keeping with the seriousness of the offence that he committed. The court a quo
was asked to consider as compelling and substantial circumstances warranting a
deviation from the prescribed sentence of life imprisonment the fact that the
appellant was a first offender and pleaded guilty to the charge.
[8] Apart from this, it was submitted that since the appellant was a first
offender there were prospects that he may be rehabilitated. According to the
defence, it would not be in the interests of justice to impose a lengthy term of
imprisonment which would ‘seriously damage the appellant.’
[9] In aggravation of sentence, the prosecution highlighted the seriousness
and prevalence of the offence in society, and the fact that in committing the
rape, the appellant breached the trust that the young complainant reposed in him
as his uncle and he breached the moral duty to protect her as a young child. The
prosecution submitted, further, that since the complainant was raped, her
performance at school dropped and she is suffering from urinary incontinence.
This was according to the information that was placed before the prosecutor
concerning the victim. The information went on to suggest that the victim was
isolating herself and that the traumatic effects of the rape were visible when she
cried during consultation wi th the prosecutor in preparation for the trial of the
matter. It was the prosecution’s submission that the complainant would continue
to suffer from the psychological effects of the rape. He invited the court to
decline the invitation to deviate from the p rescribed sentence of life
imprisonment. In this regard, the prosecution submitted that the appellant’s
submissions in mitigation of sentence were bereft of compelling and substantial
circumstances that would justify that deviation.
The findings of the court a quo on sentence
[10] In imposing life imprisonment on the appellant, the learned Regional
Magistrate found that the blood relations between the appellant and the
complainant aggravate the offence in that as the complainant’s uncle, he was her
in loco parentis with a duty to protect her from harm. In rejecting the contention
that the appellant’s conduct was influenced by his intake of alcohol, the court a
quo reasoned that from the appellant’s ability to recount the events that led to
the rape incident it must be inferred that his consumption of alcohol did not
impair his mental faculties as submitted by her legal representative.
[11] The learned Regional Magistrate further found that the appellant’s plea of
[11] The learned Regional Magistrate further found that the appellant’s plea of
guilty is not in and by itself, indicative of remorse and of the fact that he has
potential to be rehabilitated. In this regard he found that the fact that the
appellant considered a 7 -year-old child as a person he could have sexual
intercourse with, put paid to the contention that he was a candidate for
rehabilitation.
[12] The court a quo found that none of the factors stated on the appellant’s
behalf in mitigation of sentence sto od out as compelling and substantial
circumstances that would justify the imposition of a lesser sentence.
Furthermore, the court a quo found that the appellant’s youthful age, when
considered in conjunction with the facts of the case, was no sufficient gr ound
for deviation from the prescribed sentence.
The grounds of appeal
[13] In appealing against his sentence, the appellant contends that:
(i) The sentence is so severe that it induces a sense of shock.
(ii) The court a quo erred in finding that the pers onal circumstances of the
applicant do not constitute compelling and substantial circumstances.
(iii) The court overlooked the fact that the appellant was a first offender and
therefore capable of being rehabilitated; it overlooked the fact that he
pleaded guilty, which a sign of remorse; and
(iv) It further erred ‘in overemphasizing the ‘triad’ of sentencing.’
Counsel’ s submission in this appeal
[14] Even though in the appellant’ s heads of argument it was submitted that
the plaintiff’s personal circumstances cumulatively considered constituted
compelling and substantial circumstances, Mr Madywede was constrained to
concede that there is nothing compelling and substantial about them.
[15] While he acknowledged the seriousness of the offence of which the
appellant was convicted, Mr Madywede submitted that the court a quo ought to
have considered the proportionality of the sentence of life imprisonment to the
offence committed. He took the view that the sentence of life imprisonment was
disproportionate to the offence committed by the appellant.
[16] I interpose to mention that disproportionality as ground of appeal was not
pertinently set forth in the notice of appeal but only in th e appellant’s heads of
argument. As a general rule, an appellant is confined to the grounds of appeal
that he or she set forth in the notice of appeal.2 However, newly raised questions
of law may, as an exception, be allowed. The disproportionality contention is a
question of law, and there was no objection by the respondent to the issue being
raised. For these reasons, we exercised our discretion in favour of hearing the
argument newly raised.3
[17] Mr Madywede further submitted that the court a quo ought to have
considered the appellant’ s young age and the fact that he had room for
rehabilitation. He went on to submit that the prospects of the appellant’s
rehabilitation were discernible from the fact that this was his first conviction
and he pleaded guilty promptly. Mr Madywede was at pai ns to explain the
paucity of the facts that the appellant presented in his plea explanation as to the
circumstances in which he committed the rape, a matter I will deal with when it
is opportune to do so in this judgment.
[18] In persisting with the respon dent’s opposition of the appeal, Ms Bodlo
submitted that the appellant had an opportunity to take the court into confidence
in his guilty plea by presenting more facts which would aid the understanding of
what motivated the offence and his plea of guilty. Such extrinsic facts, she said,
would assist in the court’s determination whether life imprisonment was just
despite the absence of compelling and substantial circumstances. Ms Bodlo
emphasized as aggravating factors the blood relations that exist between the
emphasized as aggravating factors the blood relations that exist between the
2 Du Toit’s Commentary of the Criminal Procedure Act [Service 69, 2022] at 30-28.
3 S v Nel 1987(4) SA 276 (O) 279F-I.
appellant and the complainant, and fact that the offence left the complainant
with an injury. She further submitted that in the absence of any facts regarding
the quantity of alcohol that the appellant had consumed in relation to the time he
committed the rape, no weight should be attached to his alleged intoxication as
being what influenced his conduct.
The legal principles
[19] It is by now trite that an appellate court cannot, in the absence of material
misdirection by the trial court, approach the q uestion of sentence as if it were
the trial court and then substitute the sentence arrived at by it simply because it
prefers it. But even where there is no material misdirection an appellate court
may be justified to interfere with the sentence imposed by the trial court where
the disparity between the sentence of the trial court and the sentence which the
appellate court would have imposed had it been the trial court is so marked that
it can properly be described as “shocking” and “startling” or “disturbi ngly
inappropriate”.4
[20] Explaining this principle in the context of sentences which are imposed
under the CLAA, the Court in S v Bailey5 said the following:
‘What then is the correct approach by an appellate 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 after exercising its discretion properly simply because it is not the sentence
which it would have imposed or that it finds it shocking? The appr oach 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 therefore, that a proper enquiry on appeal is whether
4 S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR
469 (SCA) (19 March 2001) (Malgas), para 12.
5 2013 (2) SACR 533 (SCA), para 20.
the facts which were considered by the sentencing court are substantial and compelling or
not.”
[21] The absence of substan tial and compelling circumstances from the
personal circumstances of the appellant is not in and of itself the end of the
inquiry. As held in Vilakazi,6 a prescribed sentence cannot automatically be
assumed to be proportionate in a particular case. The court is enjoined in every
case, before it imposes a prescribed sentence, to assess, upon a consideration of
all the circumstances of a particular case, whether the prescribed sentence is
indeed proportionate to the offence in question.
Discussion
[22] The right to human dignity is a right without which the rest of the rights
and freedoms espoused in the Constitution are rendered illusory. Rape is one of
the devastating violations that a person can e ndure. It strips the victim of his or
her dignity, and sense of self. Apart from being an act of cruelty and violence, it
constitutes profound betrayal of trust and humanity.7
[23] The prevalence of the offence of rape in society is a fact beyond
controversy. Its damaging effect on the lives of the victims, coupled to the need
to curb the insidious thirst of the perpetrators for control, power and
humiliation, their sense of entitlem ent, and the need to protect its victims, must
have been among the considerations that gave rise to the offence of rape being
singled out as one of the offences that are punishable by harsh sentences which
the CLAA prescribes.
6 S v Vilakazi 2009 (1) SACR 552 (SCA) (Vilakazi), para18.
7 See also, S v Chapman 1997 (3) SA 341 (SCA), paras 3-4; Vilakazi, para 1.
[24] Since the absence of co mpelling and substantial circumstances from the
appellant’s personal circumstances was conceded by his legal representative, I
will limit this Court’s inquiry to whether the sentence that the court a quo is
disproportionate to the offence committed by the appellant. In this regard,
factors relevant to the nature and seriousness of the criminal act itself, as well as
all relevant personal and other circumstances relating to the offender; and the
culpability of the offender must be considered. 8 This accords with the principle
that the traditional factors that are to be considered in passing sentence remain
relevant in the consideration of sentence under the minimum sentence regime.9
[25] There is a fundamental point to be made regarding the facts that the
appellant presented in the court a quo in pleading guilty to the rape charge. I
have quoted those facts above. By any standard of cogency, the facts that wer e
placed before the court a quo leave one in the dark regarding what motivated the
offence. In as much as in his plea explanation the appellant merely mentioned
that ‘he had earlier on the day of the rape enjoyed himself with his friends at the
local tavern,’ no details were given regarding what this entailed. That he was
intoxicated emerged in vague terms when submissions were made on his behalf
in mitigation of sentence. Mr Madywede readily acknowledged these difficulties
and in his words ‘they stood as weaknesses in the case of the appellant’.
[26] The use of the phrase that ‘a sentence induces a sense of shock’, without
more, amounts to no more than an expression of unfounded disapproval of how
the court’s sentencing discretion was exercis ed. More is entailed in saying that
the sentence induces a sense of shock – there must be a consideration of what
society requires or expects of the law in punishing crime. The interests of
society are never well served by too harsh or too lenient a senten ce.
society are never well served by too harsh or too lenient a senten ce.
Circumstances vary and punishment must ultimately fit the true seriousness of
8 S v Dodo 2001 (3) SA 382 (CC) para 37; Vilakazi, footnote 6 supra, at para 15.
9 Malgas para 9-10.
the crime – a balance has to be struck.’ 10 Thring J once cautioned in S v Sonday
& another,11 that ‘a sentence which is shockingly or strikingly or disturbingly
too light is as much a miscarriage of justice as one which is shockingly or
strikingly or disturbingly too heavy.’ 12 In this regard, the learned Judge
emphasized the Court’s duty on appeal to ensure that proper and adequate
sentences are imposed, so that society can be appropriately protected against
criminal activities, inter alia, by the deterrent effects of those sentences.
[27] Is this case the kind for which life imprisonment is proportionate to the
offence committed? The starting point is that rape is a serious offence. The
Supreme Court of Appeal, has recently re -iterated in Director of Public
Prosecutions, Easter n Cape, Makhanda v Coko, 13 that rape has become a
scourge or c ancer that threatens to destroy both the moral and social fabric of
our society.14
[28] From the scant facts that the appellant presented in his plea explanation, it
is difficult to fathom how it came about that in his eyes, a 7-year-old child could
have been an appropriate person to perform a sexual act on. In the same way
that this question was mind-boggling to the trial court, it continues to trouble
our minds in this Court. Apart from this fact, the complainant must have trusted
the appellant as her uncle and considered him a figure of authority. The
appellant misused this trust and took advantage of her.
[29] It is by now trite that the sentence of life imprisonment in the context of
rape cases ought to be reserved for the most gruesome cases of rape. The dictum
of the Court in Mudau v S15 is instructive, where it said:
10 2011 (1) SACR 9 (SCA), para 9.
11 S v Sonday & another 1994 (2) SACR 810 (C).
12 Id, at 820d-e.
13 Director of Public Prosecutions, Eastern Cape, Makhanda v Coko (main and supplementary judgment)
(248/2022) [2024] ZASCA 59; 2024 (2) SACR 113 (SCA); [2024] 3 All SA 674 (SCA) (24 April 2024).
14 Id, paras 4 and 5.
14 Id, paras 4 and 5.
15 Mudau v S (764/12) [2012] ZASCA 56 (9 May 2013).
‘[17] It is necessary to reiterate a few self -evident realities. First, rape is undeniably a
degrading, humiliating and brutal invasion of a person’s most intimate, private space. The
very act itself, even absent any accompa nying violent assault inflicted by the perpetrator, is a
violent and traumatic infringement of a person’s fundamental right to be free from all forms
of violence and not to be treated in a cruel, inhumane or degrading way. In S v Vilakazi,
Nugent JA referr ed to the study done by Rachel Jewkes and Naeema Abrahams on the
epidemiology of rape which concluded on the available evidence that ‘women’s right to give
or withhold consent to sexual intercourse is one of the most commonly violated of all, human
rights in South Africa’.
[18] The second self-evident truth (albeit somewhat contentious) is that there are categories of
severity of rape. This observation does not in any way whatsoever detract from the important
remarks in the preceding paragraph. This court held in S v Abrahams that ‘some rapes are
worse than others, and the life sentence ordained by the Legislature should be reserved for
cases devoid of substantial factors compelling the conclusion that such a sentence is
inappropriate and unjust’. The adven t of minimum sentence legislation has not changed the
centrality of proportionality in sentencing.”16
[30] The complainant was left with an injury that must have caused her
embarrassment over and above discomfort. She had a wound in the vagina with
‘purulent vaginal discharge’. The purulence of the vaginal discharge suggests
the presence of pus in the young com plainant’s private part. There was,
furthermore, no contestation of the fact stated by the prosecutor that the rape left
her suffering from urinary incontinence. The injury sustained by the young
complainant and the sequelae of the rape are by no means slight.
[31] It is furthermore not apparent from the plea explanation when the
[31] It is furthermore not apparent from the plea explanation when the
appellant accepted responsibility for his actions. On the face of the record, the
rape took place on 11 May 2017. The proceedings commenced in the Bizana
Regional Court on 03 Marc h 2021, with the plea of guilty tendered on 11 June
2021. There is no indication on record why it took the appellant 4 years to plead
guilty to the offence. While this lacuna cannot solely be blamed on the
16 See also S v Brahams 2002 (1) SACR 116 (SCA), para 29.
appellant, it militates against him that he did not give any evidence in mitigation
of sentence in circumstances where not even his plea explains with any degree
of clarity what motivated his actions and what had since led to his plea of guilty.
He did not take the court a quo into confidence. This is no t indicative of a
person who has prospects of rehabilitation and who understands the
reprehensibility of his actions.
[32] Even if we were to find that the appellant has prospects of being
rehabilitated, in S v Swart ,17 the Court pointed out that each of the elements of
the purpose of punishment need not be given the same weight, but rather that
proper weight must be accorded to each according to the circumstances of the
case. It further held that ‘serious crimes will u sually require that retribution and
deterrence should come to the fore and that the rehabilitation of the offender
will consequently play a relatively smaller role.’
[33] Lastly, and in any event, that the applicant’s faculties were impaired by
the alcohol he consumed earlier on that day is unavailing to him. There is good
reason why legal authority on the effect of intoxication is to the effect that it
will not be a mitigating factor in every case. It is instructive to examine some of
those authorities. Learned author Terblanche18 states that the intake of alcohol or
drugs is not necessarily a mitigating factor; the circumstances of the case will
determine wh ether it is. It has to be shown that the intoxication actually
impaired the mental faculties of the offender; only then can his blameworthiness
be regarded as diminished. These views found expression in Director of Public
Prosecutions, Grahamstown v Mzukisi Peli19 where it was said:
‘It is trite that for intoxication to be considered as a substantial and compelling circumstance
in mitigation, it must be shown that the consumption of alcohol had impaired or affected the
17 2004 (2) SACR 370 (SCA) at para 12.
17 2004 (2) SACR 370 (SCA) at para 12.
18 SS Terblanche (Guide to Sentencing in South Africa, 3rd Ed, (Lexis Nexis) at page 227 para 7.3.9.
19 Director of Public Prosecutions, Grahamstown v Mzukisi Peli (533/2017) [2018] ZASCA 40 (28 March
2018).
respondent’s mental faculties or judgment and thereby diminished th e respondent’s moral
blameworthiness.’20
[34] In the matter before us, there is no explanation regarding the type of
alcohol he had consumed, its quantity and how it affected him; as well as when
he had consumed that alcohol in relation to h is arrival at his home where he
raped the complainant. The court a quo correctly rejected the contention that his
faculties were impaired by his intake of alcohol. Floodgates would be opened if
offenders were to be allowed, without more, to justify their r eprehensible
conduct by stating that it was influenced by intoxication of alcohol. In fact, in
the context of the appellant’s assertion of intoxication, it is nothing more than
his convenient way of avoiding severe punishment.
Conclusion
[35] In the presen t case the learned Regional Magistrate articulated the legal
principles applicable in sentencing under CLAA with commendable clarity.
Even though he did not specifically mention the proportionality element of
sentencing, the record itself indicates that he carefully weighed the
circumstances of the case, the seriousness of the offence and the appellant’s
culpability. He was alive to the court’s duty to consider the interests of society
by not imposing an inadequate sentence. There is no basis to fault the c ourt a
quo’s decision on sentence. The appeal must accordingly fail.
Order
[36] In the result, I would make the following order:
20 Id para 9.
1. The sentence of life imprisonment imposed by the Regional Magistrate,
Bizana, is confirmed.
2. The appeal is dismissed.
____________________
L. RUSI
JUDGE OF THE HIGH COURT
CENGANI-MBAKAZA AJ:
I agree.
__________________
N. CENGANI-MBAKAZA
JUDGE OF THE HIGH COURT
(ACTING)
Appearances:
For the appellant : A Madywede
Legal Aid South Africa
Mthatha Justice Centre
For the respondent : N Bodlo
Office of the Director of Public Prosecutions
Mthatha
Date heard: 04 February 2026
Date delivered: 10 March 2026