About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2026
>>
[2026] ZAGPPHC 339
|
|
Themba v S (Criminal Appeal) (A312/2024) [2026] ZAGPPHC 339 (16 April 2026)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case
No: A312/2024
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHERS JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
DATE
16 April 2026
SIGNATURE
In
the matter between:
MARRAKUNA
JOSEPH THEMBA
APPELLANT
and
THE
STATE
RESPONDENT
CRIMINAL APPEAL JUDGMENT
FRANCIS-SUBBIAH
J:
[1]
This is an appeal against sentence on a charge of rape read with the
provisions of
Section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
. The appellant pleaded guilty to the charges of rape and was
convicted. He was sentenced on 1
st
October 2019 to
Life Imprisonment. The appellant has an automatic right of appeal in
terms of
section 309
of the
Criminal Procedure Act 51 of 1977
read
with section 10 and 43(2) of the Judicial Matters Amendment Act 42 of
2013. The appellant was legally represented in the court
a quo
.
[2]
The crime in question occurred on 24
th
September 2018 at
Mamelodi when the appellant unlawfully and intentionally inserted his
penis into the anus of the complainant,
a five-year-old girl-child.
The child’s mother and the appellant were involved in a
romantic relationship at the time of
the incident.
[3]
The offence of rape falls within the ambit of Section 51(1) read with
Part 1 of Schedule 2 of
the Criminal Law Sentencing Amendment Act 105
of 1997 as a result of the grievous bodily harm inflicted on the
complainant. The
prescribed minimum sentence of life imprisonment is
ordained, unless substantial and compelling circumstances were
present justifying
a deviation from the prescribed minimum sentence.
[4]
The appellant’s complaint is that the trial court misdirected
itself in failing to afford
appropriate weight to the appellant’s
guilty plea, finding that such was a neutral factor. The court failed
to consider the
submission that the appellant consumed liquor at the
time of the commission of the offence. That he was a first offender
at age
44, is remorseful, spent a year in custody awaiting trial and
that the victim suffered no injuries. The prospects of rehabilitation
were not considered and the reference to DNA by the Magistrate in his
sentencing is a misdirection where no DNA report was submitted
to the
Magistrate.
[5]
The complaint of the appellant is that the Magistrate found that the
appellant failed to prove
the existence of substantial and compelling
circumstances required for the imposition of a lesser sentence than
the prescribed
term of life imprisonment.
The Appropriate
Sentence
[6]
The power of the Court of Appeal to interfere with a sentence is
constrained. In
S
v Rabie
1975 (4) SA 855
(A)
the
court held that the imposition of a sentence is solely within the
discretion of the trial court and that a court of appeal will
not
interfere with that discretion unless it is satisfied that the trial
court exercised its discretion unreasonably. In an evaluation
of
judicial discretion an appeal court may not interfere with a sentence
merely because it would have imposed a different sentence
than the
one imposed by the trial court
in
S
v Skenjana
1985 (3) SA 51
(A) at 55.
Nevertheless, a striking disparity
between the sentence and that which the appeal court would have
imposed had it been the trial
court remains an element for
interfering with the trial court’s sentencing discretion as it
was held in
Director of Public
Prosecution KZN v P
2006 (1) SACR 243
SCA.
Additionally, the power
of the appeal court to interfere with
a sentence extends to a
finding of irregularity and misdirection of sentencing powers.
[7]
In
S v Pillay
1977 (4) SA 531
(A) at 535E-F,
the
court held that:
“…
mere
misdirection is not by itself sufficient to entitle the Appeal Court
to interfere with the sentence; it must be of such a nature,
degree
or seriousness that it shows, directly or inferentially, that the
court did not exercise its discretion at all or exercised
it
improperly or unreasonably….”
[8]
In determining an appropriate sentence the ideal outcome is to
achieve a proper balance between
this triad as it was entrenched in
S
v Zinn
1969 (2) SA 537
(A), namely: the nature of the crime,
the personal circumstances of the appellant and the interests of
society. The court a quo
did consider all relevant factors properly.
It was incumbent upon the appellant to satisfy the court that there
are compelling
and substantial circumstances to deviate from the
prescribed minimum sentence.
[9]
It remains a question in this matter whether to deviate from the
minimum sentences prescribed
by the legislator for crimes against
children who remain vulnerable members of society. Parliament has
made it clear that minimum
sentences for specific offences such as
rape are to be imposed. Courts are therefore obliged to impose these
sentences unless there
are truly convincing reasons for departing
from them.
[10]
The offence is serious as the legislature prescribes that life
sentence be ordinarily imposed for the commission
of rape of a child.
In
S v Malgas
2001 (1) SACR 469
(SCA)
at para 8,
the Supreme Court of Appeal
held:
“…
In
short, the Legislature aimed at ensuring a severe, standardised, and
consistent 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 are 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.”
[11]
The appellant was 44 years old when he committed the offence and is a
first offender. He did grade
6 at school and is self employed as a
mechanic. He came to South Africa from Mozambique with his father. He
has two children aged
9 and 4 years who reside in Mozambique. The
appellant was under the influence of alcohol when he committed the
offence. However,
no submissions were made relating to the
correlation and impact of alcohol on the commission of the offence.
[12] In
S v Vilakazi
2009 (1) SACR 552
(SCA),
it was held that in cases of serious crime, the personal
circumstances of the offender, by themselves would necessarily recede
into
the background. Once it becomes clear that the crime is
deserving of a substantial period of imprisonment, the questions
whether
the accused is married or single, whether he has two children
or three, whether or not he is in employment, are in themselves
largely
immaterial to what that period should be, and those seem to
be kind of flimsy grounds that
Malgas
said should be avoided.
[13]
Even at this stage, the appellant advances his guilty plea as a
mitigating factor to sway this appeal court
to deviate from the
prescribed sentence. Accordingly, he pleaded guilty as a sign of
remorse and did not waste the court’s
time. He acknowledged his
acts and requested the court for mercy. In the matter of
Malgas
the court cautioned that a plea of guilty does not automatically
result in a deviation from the prescribed minimum sentence. A
sentencing court is not to “deviate from a prescribed sentence
lightly and for flimsy reason which could not withstand scrutiny.”
A sentencing court must look to the ultimate cumulative impact of all
these factors in order to determine whether a departure from
the
prescribed minimum sentence is justified.
[14]
Further, it was contended that the Magistrate took into account DNA
evidence despite the fact that no such
evidence had formally been
submitted before the court. On that basis, it was argued that the
Magistrate committed a material misdirection.
However, counsel for
the appellant conceded that, although no DNA report had been formally
admitted as evidence before the Magistrate,
the appellant had, in his
statement in terms of
section 112(2)
of the
Criminal Procedure Act 51
of 1977
, admitted the contents of the DNA report in paragraph 5
thereof. In the circumstances, and when the matter is considered in
its
proper context, it cannot be said that the Magistrate misdirected
himself on this aspect.
[15]
The appellant occupied a position of trust in relation
to the child by virtue of his romantic relationship with her mother.
In terms
of section 28 of the Constitution of the Republic of South
Africa, 1996, the rights of children must be protected, including
their
right to be safeguarded from abuse, maltreatment, and
degradation. As an adult and a father to two children of his own, the
appellant
bore a responsibility to act in a manner that protected and
promoted the well-being of this child.
[16]
Instead of fulfilling this responsibility, the appellant abused the
position of trust afforded to him. He
committed an opportunistic
offence against the child, taking advantage of his close proximity to
her, which arose from his relationship
with her mother. In doing so,
he not only violated the child’s dignity and security but also
betrayed both the child’s
trust and the trust that her mother
had placed in him.
[16] It
is submitted that a life sentence imposed will not aid the
appellant’s rehabilitation. It was argued
that the Magistrate
failed to take cognizance of the effect which long term imprisonment
would have on the appellant. On the contrary,
correctional
supervision during imprisonment is designed to support the appellant
in his rehabilitation, irrespective of the period
of sentence being
one of life or a lesser one. It is within the appellant’s power
to choose to rehabilitate if he desires.
Education and skills
development are available to the appellant during his incarceration.
The imprisonment of the appellant should
sufficiently rehabilitate
him if he chooses to participate in the rehabilitation programs.
[17] It
follows that the Magistrate in exercising his sentencing discretion
took into account the factors necessary
to impose an appropriate
sentence and there was no misdirection in his sentencing powers. Life
imprisonment is appropriate. In
the circumstances the statutory
minimum sentence imposed by the Magistrate is confirmed. This
sentence would restore the community’s
faith in the Courts to
deal harshly with people who commit offences like this. It
effectively serves the purpose of the punishment
and has the
necessary rehabilitative, redistributive, deterrent and preventative
objectives.
[18]
In the result:
18.1
The appeal is dismissed.
18.2 The
sentence of life imprisonment imposed by the court
a quo
on
the appellant is hereby confirmed.
R
FRANCIS-SUBBIAH
JUDGE OF THE HIGH
COURT,
PRETORIA
I agree,
L M MOLOPA-SETHOSA, J
JUDGE
OF THE HIGH COURT,
PRETORIA
APPEARANCES:
COUNSEL FOR THE
APPELLANT:
ADV. JL KGOKANE
INSTRUCTED
BY
:
LEGAL AID SOUTH
AFRICA, PRETORIA
COUNSEL FOR THE
RESPONDENT:
ADV. K T RANCHO
INSTRUCTED
BY
:
DPP, PRETORIA
HEARD
ON
:
10 MARCH 2026
JUDGMENT DELIVERED
ON :
16 APRIL 2026
This
judgment has been delivered by uploading it to the court online
digital data base of the Gauteng Division, Pretoria and by
e-mail to
the attorneys of record of the parties. The deemed date and time for
the delivery is 16h00 on 16 April 2026.