IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION: MAKHANDA
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES
DATE: 10 APRIL 2026___
SIGNATURE: ___________
Case no: CA &R 141/2024
In the matter between:
YONWABA MARADE Appellant
and
THE STATE Respondent
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Summary: Appeal – rape-conviction - sentence-shocking - Sexual Offences and Related
Matters Amendment Act 51 -2007, Criminal Law Amendment Act 105 of 1997, Criminal
Procedure Act 51 of 1977, consent, non-consensual sexual intercourse. Appeal dismissed.
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JUDGMENT
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NTLAMA-MAKHANYA AJ (Jolwana J concurring)
[1] The appellant was convicted and sentenced to life imprisonment by the Regional
Magistrate Court in Humansdorp on 16 November 2022. H e was found guilty of
contravening section 3 of the Criminal Law (Sexual Offences Criminal Law) Amendment
Act of 2007 (SORMA) read with section 51(1) Part 1 of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997. Thereafter, he was sentenced to underg oing life
imprisonment on 28 June 2023. There was no order made in terms of section 103(1) of
the Firearms Control Act 60 of 2022.
[2] The appeal is against both conviction and sentence.
BACKGROUND
[3] The appellant was sentenced to life imprisonment f ollowing his conviction for the
crime of rape. He was charged for the rape of a 14 -year-old girl child. At the time of the
commission of the offence, he was 24 years old and he was 26 years old at the time of
sentencing. They met on the street on the eveni ng of the 16 th of December 2020 at
around 10pm. The complainant left her home with the approval of her mother under the
pretext of going to look for her friends. Instead, she went to the tavern without her
mother’s knowledge. At the tavern, she drank alcoh ol (Savanah and tots of brandy) with
her friends. Thus, the tavern closed at about 10pm and whilst she was on her way home
and feeling dizzy and staggering, she met the appellant and told him he was looking for
her friends. He offered to accompany her home but said that they must go to his place
of residence to fetch his jersey. She did not resist and on arrival at the appellant’s place,
she sat on the bed and fell asleep for about 30 minutes. She woke up with her pants
and underwear on her knees and had bl ood on her thighs. The appellant was sitting
next to her, and she asked him what he did to her and he responded that he would not
tell her because her mother would lay a charge against him. After that, the appellant
accompanied her home and was still drunk . On her arrival home, her mother was
waiting for her and asked her where she was from and wanted to beat her up with a
belt. She voluntarily told her mother that she was raped by Percy (appellant) and her
mother then called the police. Thereafter, she was taken to Humansdorp Hospital for
examination.
ISSUES
[4] The primary issue in this case is broadly to determine whether:
(i) The appeal is merited in both the conviction and sentence.
(ii) Mitigating factors were properly considered by the Court a quo; and
(iii) It misdirected itself in finding the appellant guilty and sentencing him
to life imprisonment.
ANALYSIS
[5] The appellant was warned by the Court a quo of the seriousness and
implications of the crime of rape which could attract a sentence of life
imprisonment in terms of section 51(1) of Criminal Amendment Act 105 of 1997 if
found guilty. Following an application by the state, the proceedings were held in
camera because of the age of the complainant. The appellant pleaded not guilty
and provided a plea explanation in terms of section 115 of the Criminal
Procedure Act 51 of 1977 (the CPA) the essence of which was that he did have
sexual intercourse with t he complainant with her consent. He also made an
admission in terms of section 220 that the complainant was 14 years of age at
the time of commission of the offence.
[6] The primary issue and the gist of this appeal in respect of conviction is the
interpretation of the principle of consent.
[7] There is a golden thread of judicial precedent that provides clear and
unambiguous insights relating to the interpretation of non -consensual sexual
intercourse and its horrible impact in society. Courts go throug h the legal
exercise of assessing the impact of rape before dealing with the merits of the
principle of consent itself to highlight this societal albatross. Mathopo AJ in
Tshabalala v S; Ntuli v S 1 dismissed any “tiptoeing” approach around the
commission of the crime of rape as a “mere offence” and held that:
‘Th[e] scourge [of rape] has reached alarming proportions in our country. Joint
efforts by the courts, society and law enforcement agencies are required to
curb this pandemic. This Court would be failing in its duty if it does not send
out a clear and unequivocal pronouncement that the South African Judiciary is
committed to developing and implementing sound and robust legal principles
that advance the fight against gender-based violence in order to safeguard the
constitutional values of equality, human dignity and safety and security. One
such way in which we can do this is to dispose of the misguided and
misinformed view that rape is a crime purely about sex. Continuing this
misguided trajectory would implicate this Court and courts around this country
in the perpetuation of patriarchy and rape culture.’2
[8] Similarly, Petse DP in Director of Public Prosecutions, Eastern Cape, Makhanda
v Coko 3 overturned and dismissed the judgment in Coko v S 4 and echoed the
same sentiments about the impact of rape and held that:
1Tshabalala v S; Ntuli v S 2020 (3) BCLR 307 (CC).
2 Ibid para 63.
3 Director of Public Prosecutions, Eastern Cape v Coko [2024] 3 All SA 674 SCA.
4 Coko v S [2021] 4 All SA 768 (ECG).
‘Rape is an utterly despicable, selfish and horrendous crime. It gains nothing
for the perpetrator, save for fleeting gratification, and yet inflicts lasting
emotional trauma and, often, physical scars on the victim … [and] … it brooks
no argument to the contrary that rape gratuitously violates the fundamental
value of human dignity and related rights.’5
[9] Goldstein J in S v Ncheche6 which was decided earlier held that:
‘Rape … in our country … occurs far too frequently and is currently aggravated
by the grave risk of the transmission of Aids. A woman’s body is sacrosanct and
anyone who violates it does so at his peril and our Legislature, and the
community at large, correctly expect our courts to punish rapists very severely.’7
[10] These cases demonstrate an uncompromising approach by the judicial branch of
the state to ensure a deep -rooted understanding of the impact of the crime rape
in the moral fibre of society. Th ey are also of significance to demonstrate that
rape goes far beyond and touch on the core content of the elements of upholding
human dignity of women. O’Regan J in S v Makwanyane 8 contextualised the
significance of human dignity when she held “… the reco gnition of dignity is an
acknowledgment of the intrinsic worth human beings [and] without [it], human life
is diminished.’9
[11] In this case, the appellant submitted that the complainant’s age was obviously not
the age of 16 years at the time of the com mission of the offence. He was unaware
that she might have been under the said years and he also did not apply his mind
5 DPP v Coko (note 3 above) paras 2 and 7.
6 S v Ncheche 2005 (2) SACR 386 (W).
7 Ibid para 35.
8 S v Makwanyane 1995 (6) BCLR 665 (CC).
9 Ibid paras 326-328.
to it. This exchange during trial may assist in understanding the essence of his
defence in this regard:
‘Mr Humphries: On that day, did you know how old the complainant is?
Accused: No, I didn’t know how old she was.
…
Accused: I tried to explain to the police I do not know how old she was. And
then they did not listen to me, and they said they must go, I will tell my story in
court.
Mr Humphries: How old did you think she was?
Accused: At that time, I did not think about the age of her.’
On appeal reliance was placed on State v Lucas Rudman10 in which Lowe J held
that:
‘The subjective element of the test is that the accused must have believed that
a young person was already at least 16 years of age, however, to be effective
that belief must be viewed objectively in the sense that a reasonable person in
the circumstances would in fact have believed that the child was already at
least 16 years of age. This is insufficient, however, as a defence, unless the
child acted or behaved in such a way that the accused was deceived into
believing that the child was 16 years or older at the time,’11 (emphasis mine).
[12] This case was not of assistance in support of the appellant’s case to justify
consensual sexual intercourse with the complainant. The appellant’s submission
that the complainant’s body did not show that she was underage and he also did
not apply his mind t o it failed the threshold of a reasonable belief in consensual
10 State v Lucas Rudman (ECMk) Case no. CC58.2022.
11 Ibid para 28.
sexual intercourse. Lowe J qualified the reasonable belief by holding that “it
would be insufficient if there was no proof of deception that the complainant was
of mature age”. 12 In this case, the appellant did not prove any deception by the
complainant into believing that she was of mature age. The appellant’s Counsel
relied on the complainant’s physique having possibly played a role in the
circumstances including complainant having been at a t avern. The complainant’s
going to the tavern while demonstrative of the unacceptable societal ill of young
people and children consuming alcohol at a very young age does not, however,
constitute any act of deception that the appellant could have reasonably believed
that she was of mature age without more. The fact of the matter is that the
appellant’s actions objectified the complainant and showed an opportunistic and
his exploitative mindset which cannot be countenanced by our courts.
[13] The subjective approach to consent entails the interpretation of consent through
lens of an implied belief to non -consensual sexual intercourse. This approach
was equally criticized by Wille J in Cola v S 13 who held that “it is problematic
because it unfairly constitute s a shift to the conduct of the survivor who must
prove that she did not consent rather than the other way around”.14 The approach
further views survivors as untrustworthy and that they need intense scrutiny to
establish whether they consented to sexual in tercourse. This Court shares the
same sentiments and refuses to adopt a victim -centred approach in establishing
non-consensual sexual intercourse.
[14] Furthermore, the fact that the complainant was drunk must surely mean that the
act of deceit could not have been drawn from a drunk underage child. The
appellant admitted that he did not apply his mind to the complainant’s age. He
then argued that the Cour t a quo adopted a subjective criterion in evaluating the
then argued that the Cour t a quo adopted a subjective criterion in evaluating the
facts instead of the objective question “ whether the complainant could be seen
as being older than 16 years”. Lowe J in Rudman above, placed great emphasis
12 State v Lucas Rudman (note 12 above).
13 Cola v S [2025] ZAWCHC 514.
14 Ibid para 26.
on the requirement of “consent” and rejecte d the appellant’s reliance on
“reasonable” belief and held that:
‘If the accused commits an act of sexual penetration with a child below the
age of 12 and 16 this is criminalised because such a child is not yet mature
enough to properly appreciate the implications and consequences of sexual
acts, especially sexual penetration. The basis of section 56(2)(a) is to
especially protect such children. Consent by the child to the commission of the
offence is no defence. If the act takes place wi thout any consent by the child
the more serious offence of rape is committed. The defence available in
section 56(2)(a) of the CLAA relates to the child deceiving the accused into
believing that he or she was 16 years or older at the time and that the accused
“reasonably believed” that the child was 16 years or older,’15 (emphasis mine).
[15] In this case, consent could not have been obtained from an underage child who
was asleep and woke up with her pants and underwear on her knees with blood
from her thi ghs downwards. The appellant also conceded that he also saw the
blood in the morning and that the complainant was staggering when they met on
the street. The appellant’s concession nullified what could have been the act of
deceit.
[16] The subjective cri teria reinforce the misconception of non -consensual sexual
intercourse and ignores its impact as a form of violence that is degrading to the
dignity of the human person and an expression of power. The legitimacy of the
fundamental rights of the survivors o f rape is deeply hemorrhaged by what is
perceived as a reasonable belief in consent to sexual intercourse. Khampepe J in
Tshabalala expressed this view in no uncertain terms and held that:
15 Rudman (note 12 above) para 27.
‘For many victims and survivors of rape, they “do not experience r ape as a
sexual encounter but as a frightening, life -threatening attack” and “as a
moment of immense powerlessness and degradation.’16
[17] Khampepe J highlights the impact of rape as the country is reeling from high levels
of violence against women and c hildren that traumatizes the nation at large. A
misguided focus on the conduct of the survivor undermines all fundamental
freedoms, which include the right to be free from all forms of violence and the right
not to be treated in a cruel, inhumane or degrading way.17
[18] This Court takes note of the developments relating to the application of the
subjective test in proving non -consensual sexual intercourse in a judgment
delivered by Baqwa J in Embrace Project NPC v Minister Justice and Correctional
Services.18 In that case , Baqwa J had declared sections 3,4,5,6,7,8,9 and 11A
read with section 1(2) of the Criminal Law (Sexual Offences and Related Matter)
Amendment Act of 2007 as invalid and unconstitutional. He held that these
provisions justify:
‘The absence of consent… to the extent that the Act does not criminalise
sexual violence where the perpetrator wrongly and unreasonably believed that
the complainant consented to the conduct in question, therefore enabling the
accused to successfully avoid conviction on t he grounds of subjective belief
that consent was given.’19
[19] This Court is inclined not to comment on this case because it is still awaiting
confirmation of the declaration of invalidity of those sections by the Constitutional
Court. On the other hand , I must express that it serves as groundbreaking in the
development of the law as envisaged in section 39(2) of the Constitution and its
affirmation of explicit consent in sexual rights violations. I believe Baqwa J’s
16 Tshabalala (note 3 above) para 70.
17 Section 12(1) of the Constitution.
18 Embrace Project NPC v Minister Justice and Correctional Services 2025 (1) SACR 36 (GP).
18 Embrace Project NPC v Minister Justice and Correctional Services 2025 (1) SACR 36 (GP).
19 Ibid para 1.
paving the way for explicit consent a nd endorsed a legal stance which is drawn
from Nkabinde J in Masiya v Director of Public Prosecutions Pretoria 20 who held
that:
‘The prevalence of sexual violence in our society is deeply troubling. The
extension of the definition of rape to include anal penetration will not only yield
advantages to the survivor but will also express the abhorrence with which our
society regards these pervasive but outrageous acts. This Court, while not
unmindful of the fact that the 2003 Bill is before Parlia ment, cannot delay, defer
or refuse to deal with an extension of the definition when the facts before it
demands such an extension and when it is clearly in public interest to do so. Any
further delay in or suspension of the extension of the current defini tion will
constitute an injustice upon survivors of non-consensual anal penetration such as
the nine-year-old complainant in this case. That result cannot and should not be
countenanced. The fact that the [judgment is before the Constitutional Court for
confirmation of invalidity, should not thwart the [“objective criterion” from the
current subjective criterion of rape in the interpretation of the principle of consent]
… in these exceptional circumstances and when the interests of justice so
demand. … [The objection towards the use of subjective criteria to determine
consensual sexual intercourse] will [not] be in the interests of justice’21 (emphasis
mine).
[20] The appellant contended that the evidence of the complainant was unfounded
because she was a single witness and that the Court a quo misdirected itself in
accepting the reliability of her evidence. He submitted that the complainant was
not just a single witness but a child of 14 years of age and that the Court a quo
could have exercised caution in admitting her evidence as credible. The
established facts which were not denied by the appellant proved sexual
intercourse with the complainant. Further, it was also his evidence that he
intercourse with the complainant. Further, it was also his evidence that he
noticed the blood on the bed in the morning. Despite the complainant being a
single witness, the appellant confirmed that he was the only one who was in the
20 Masiya v Director of Public Prosecutions Pretoria 2007 (2) SACR 435 (CC) para 44.
21 Ibid para 44.
room with her. Her evidence was corroborated by her mother, particularly with
reference to her arriving home, noting the blood in her jeans, asking her to take a
bath and then stopping her from taking it so that the matter was reported to the
police.
[21] Dr Forbia who examined the complainant after the incident corroborated the
complainant’s non -consensual sexual intercourse evidence. This case was not
one of a mista ken identity. It also did not challenge the credibility of medical
evidence regarding the injuries suffered by the complainant. Dr Forbia’s medical
opinion established that there was no condom used and the complainant did not
urinate after the sexual assau lt had occurred. On the other hand, the appellant
contradicted Dr Forbia’s examination about condom use. He submitted that they
agreed on condom use because the complainant did not want to fall pregnant. Dr
Forbia further established that the complainant d id “not have previous sexual
history and her external injuries signify the trauma that supports that the
occurrence and circumstances were surrounding that sexual act, which was
traumatic and forcible in nature”.
[22] I am puzzled by the appellant’s dism issal of Dr Forbia’s medical evidence
following the complainant’s examination. He justified his dismissal on the fact that
the injuries sustained by the complainant were not indicative of forced
penetration and the complainant could have had anxiety about what her mother
would say for going to the tavern. Dr Forbia even addressed the impact of
alcohol relating to the complainant’s drunken status. In her examination in chief,
she pointed out that “if a person is intoxicated to an extent of being unaware of
her surroundings and may not be fully conscious, she would not be aware to
protect herself by means of moving away … to avoid the assault from happening
… [and] she added that the use of alcohol significantly dulls [the] perception of
pain … in a person who has consumed alcohol … it may be less, … as the time
pain … in a person who has consumed alcohol … it may be less, … as the time
goes by and alcohol leaves the system”.
[23] This Court does not doubt the credibility of the complainant’s version which was
corroborated by medical evidence. The main issue was “consent” and the
circumstances relating to the way in which it was acquired. The medical evidence
indicated a forceful penetration with the consequent result of external bruises
which were sore to touch, a point which was also not disputed by the appellant.
[24] Despite the c omplainant being a single witness, it is my view that her evidence
was credible. Dr Forbia’s was explicit, and her opinion was based on her clinical
examination, and the totality of her findings directly link to the injuries that are in
keeping with non -consensual or forcible sexual assault. Even in cross -
examination in the Court a quo she was not shaken about her clinical findings
that “the injuries [were] quite extensive ... [with] bruising, swelling, tearing …”.
[25] It is therefore my further view that the appellant did not show any element of
remorse. The appellant misconstrued his reasonable belief because he engaged
in a proscribed conduct of having sexual intercourse with an underage child. The
appellant did not e ven regret his non -consensual sexual intercourse with the
complainant. The issue of remorse was well -crafted by Ponnan JA in S v
Matyityi22 who held that:
‘There is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not without more
translate to genuine remorse. Remorse is a gnawing pain of conscience for
the plight of another. … After all, before a court can find that an accused
person is genuinely remorseful, it needs to have a pr oper 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.’23
22 S v Matyityi 2011 (1) SACR 40 (SCA).
23 Ibid para 13.
[26] Remorse has a dire ct effect on the sentence to be imposed with a potential to
establish whether there is existence of substantial and compelling circumstances
that could justify the imposition of a lesser sentence.
[27] The appellant raised the following issues as mitigat ing factors regarding the
imposition of the sentence that could have been considered by the Court a quo:
(i) the facts and version presented on the sequence of events leading to and
after the commission of the alleged crime;
(ii) the imposed sentence of life term imprisonment is shocking; and
(iii) put more emphasis on the impact of crime in society without balancing
with his personal circumstances.
[28] In this instance, Marais JA in S v Malgas 24 “wielded a legal axe” in the
development of the well-known principles that serve as a guide to sentencing and
started with a preamble and held that:
‘Judicial hostility to legislative prescriptions which strip courts of their
sentencing discretion is hardly surprising. Given the infinite variety of
circumstances which attend the commission of crimes, who are better placed
than the courts, which experience daily the complexities of imposing
sentences which are as just as human fallibility can make them understand
the arbitrariness and potential unjustness of such edicts? Sentencing has
rightly been described as “a lonely and onerous task”. For those who must
shoulder that responsibility in society’s name, to have to impose a statutorily
decreed sentence which is manifestly unjust in the circumstances of the case
is a monstrous thing,’25 (emphasis mine.)
24 S v Malgas 2001 (1) SACR 469 (SCA).
25 Ibid para 1.
[29] Marais JA’s tone was set by Langa J in S v Williams 26 with an endorsement of
the transformative changes that have been brought by the Constitution relating to
sentencing and held that:
‘…[T]he Constitution ensures that the sentencing of offenders must conform to
standards of decency recognised throughout the civilised word … . In the
process, it sets the State up as a model for society as it endeavours to ensure
that they are available to all. It is therefore reasonable to expect that the
[judiciary] must be foremost in upholding those values which are the guiding
light of civilised societies. Respect for human dignity is one such value ;
acknowledging it includes an acceptance by society that … even the vilest
criminal remains a human being possessed of common human dignity,’ 27
(emphasis mine).
[30] Van Veenendaal AJ in S v Bodibe28 operationalized the imposition of a sentence
and held that:
‘ … [I]t is necessary to examine the circumstances of the offence intensively
and attempt to determine the exact degree of seriousness of the particular act
in respect of which the accused has been found guilty, as well as the personal
circumstances of the accused and the interests of the community.’29
[31] Willis J in S v Loggenberg 30 identified substantial factors that are foundational to
sentence and held that it must:
(i) deter other members of the community from committing such acts or
thinking that the price of wrongdoing is worthwhile;
(ii) deter this individual from being tempted to act in such a manner ever
again;
26 S v Williams 1995 (7) BCLR 861 (CC).
27 Ibid para 77.
28 S v Bodibe [2021] ZAGPPHC 715.
29 Ibid para 3.
30 S v Loggenberg 2012 (1) SACR 462 (GSJ).
(iii) enable the possibility of correction, unless this is very cl early not
likely;
(iv) be protective of society, from those who do it harm and
(v) serve society's desire for retribution, … [which] must be placated.31
[32] These factors seek to ensure the striking of a balance between the crime and
sentence which sh ould consider the mitigating factors and the circumstances of
the offender. As expressed by Govindjee J in S v Yali32 that “the sentencing court
… must not attempt to set an example or satisfy public opinion but to serve public
interests ….” 33 Sentencing is to ensure the interest of the public and not its
opinion. The question of public opinion on the functional role of judiciary was
settled in S v Makwanyane.34 The Constitutional Court held that:
‘… This Court cannot allow itself to be diverted from its duty to act as an
independent arbiter of the Constitution by making choices on the basis that
they will find favour with the public.’35
[33] I need not express any further view in this regard. The public outrage over the
crime of rape has also been repeatedly expressed by the judiciary as a judicial
voice for the public.
[34] I am mindful of the fact that the appellant was 23 years of age when he
committed this offence. However, in the circumstances of this case, what should
be considered as the “interests of society” is also with reference to the survivor of
rape. How far shou ld access to justice be of direct effect to the interest of the
survivor? To what extent should the personal circumstances of the appellant take
precedence over the interest of the complainant? Does it mean the continuation
of the misconception relating to the distinction between those alleged to have
committed crimes and those who survived the said crimes. These questions
31 Ibid at para 6.
32 S v Yali [2025] ZAECMKHC.
33 Ibid para 4.
34 Makwanyane (note 10 above).
35 Ibid at paras 88-89.
which are of direct relevance to sentencing and deterrence of those who
committed serious crimes such as rape find expression by Nugent JA in S v
Vilakazi36 who held that:
‘In cases of serious crime the personal circumstances of the offender, by
themselves, will 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 me to be the kind of ‘flims y’ grounds that Malgas said
should be avoided,’’37 (emphasis mine).
Simply put, the approach to sentencing should be such that it takes into serious
account the vulnerability of the survivors of crime such as the 14 -year-old child in
this matter.
[35] This Court, as the Appellate Court subscribes to non -interference in the exercise
of the discretion by the sentencing court in the position of the sentence unless
justified by the circumstances of a particular matter and the way such sentencing
discretion was exercised. Such interference will only be permitted when there is
clear evidence of misdirection in its findings.
[36] The Court a quo, having considered the established facts in totality, was satisfied
that the State proved the guilt of the appellant beyond reasonable doubt that he
had sexual intercourse with the complainant without her consent. Therefore, this
Court is of the view that the Court -a quo was justified in finding the appellant
guilty of the rape of the complainant. The appellant was also correctly sentenced
to imprisonment for life as he failed in establishing any substantial and
compelling circumstances that would have justified a departure from that
36 S v Vilakazi 2012 (6) SA 353 (SCA).
37 Ibid para 58 (footnotes omitted).
prescribed sentence. The appellant’s circumstances were immaterial and did not
stand any justification for departing from life imprisonment.
[37] In the result, the following order is made:
[37.1] The appeal against both conviction and sentence are dismissed.
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N NTLAMA-MAKHANYA
ACTING JUDGE OF THE HIGH COURT
MAKHANDA
I agree
___________________________
M JOLWANA
JUDGE OF THE HIGH COURT
MAKHANDA
Delivery: This judgment is issued by the Judge whose name appears herein and its
date of delivery is deemed 10 April 2026.
Date Heard: 25 February 2026
Date Delivered: 10 April 2026
Appearances:
Appellant: Advocate JC McConnachie SC
Instructing Attorneys: Legal Aid South Africa
Respondent: Advocate NP Phikiso
Instructing Attorneys: Director of Public Prosecution’s Office
Makhanda