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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Not reportable
Case No. CA&R 158/2025
In the matter between:
M[...] J[...] Appellant
and
THE STATE Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an appeal against conviction and sentence of the Gqeberha Regional
Court on separate charges of rape and sexual assault. The appellant was sentenced
to life and six years’ imprisonment, respectively.
Background
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[2] The complainant, JG, was born on 18 November 2004. The appellant is her
father. Their daughter, LG, was born on 17 September 2019.
[3] The complainant’s aunt testified that the complainant had fallen pregnant
while she had been staying with the appellant. Her mother had left the home by that
stage to look for work in the Western Cape. It was only after the child’s birth that the
aunt discovered from an exchange of phone messages between the complainant
and the appellant that he was LG’s father. The aunt took t he complainant to the
police, where she said that the appellant had started having sex with her since she
had been 11 or 12 years old. He had several girlfriends during that time.
[4] The complainant testified that she had shared a bed with the appellant aft er
having gone to live with him while she was still very young. She had been at primary
school, ‘around 11 years [old]’, when he had started touching her before inserting his
penis into her vagina. It had been a painful experience. The complainant stated t hat
she had never consented to it. She said that the appellant had also, on occasion,
taken her hand and placed it on his penis, against her will. Sex took place frequently.
The complainant was 14 years old when she fell pregnant. The appellant wanted her
to have an abortion, but her aunt resisted. The complainant explained to her aunt, at
the appellant’s urging, that the father of the child had disappeared. The appellant
continued to have sex with her. This finally came to an end in 2023, when she told
him that she was tired of it. She never disclosed to anyone what had been taking
place because she was afraid of how others would see her and had also been very
afraid of the appellant, who had threatened to kill her if she exposed him. He had
also threatened to withdraw his support; she was entirely dependent on him. The
appellant’s girlfriends had visited him at home during their respective relationships,
appellant’s girlfriends had visited him at home during their respective relationships,
staying with him for a time. At night, however, he would wake up the complainant and
take her to the toi let outside, where he used to touch and molest her. This went on
continuously. The complainant said that she never consented to having sex with the
appellant but later gave in because she was tired of fighting back. The experience
had changed her life; she could not trust men.
[5] Under cross -examination, the complainant described how she had lost
respect for the appellant. She refused to refer to him as her father, calling him by his
first name instead. The complainant strongly refuted the assertion that she had
wanted sex with the appellant from as young as 14 years of age. She also denied
that she had ever given her consent, that she had ever agreed to keep the details of
her pregnancy a secret, or that she had ever threatened to tell others about her
relationship with the appellant. The complainant stated, too, that she had kept the
appellant’s identity hidden from the police and social workers, in accordance with his
instructions, even after LG’s birth. If she ever attempted to object to sex with the
appellant, then he would remove the items that he had bought for her and disable
her phone.
[6] The appellant testified in his own defence. He stated that he was 42 years old
and worked as a building constructor. He had eight children, including the
complainant. The appellant said that his relationship with the complainant had been
very good when she had stayed with him, like that of a father and daughter. He
explained that he had subsequently made a considerable amount of money through
betting, which he had spent on his family and others. He also lent money to a young
woman with whom he later entered a relationship. This led to an adverse reaction on
the complainant’s part, who subsequently initiated sex with the appellant. He
admitted that it was not something nor mal, but denied having requested her to
conceal his identity as LG’s father. The appellant went on to recall a phone
conversation with the complainant wherein the latter had spoken about their
relationship, requesting that it be more romantic. He also spok e about a recent
altercation prompted by his having reprimanded her for not focusing on her
schoolwork; she had objected, pointing out that she had kept him happy for eight
years, to which he had angrily responded that she should leave his house and that
he would inform her extended family that the child was his. He knew that it had been
wrong to have had sex with his daughter. He denied that he had ever placed her
hand on his penis.
hand on his penis.
[7] During cross -examination, the appellant admitted that he had sex with the
complainant, but he insisted that it only started when she was 14 years old. He was
adamant that she had wanted sex, but said that he had only had sex with her on two
occasions. He conceded that the complainant had been financially dependent on him
for food, shelter, and clothing.
Judgment of the court a quo
[8] The court a quo noted that the state’s case rested chiefly on the testimony of
a single child witness. It found, nevertheless, that JG was trustworthy and that there
was consistency in her evidence. This was corroborated by the information apparent
from the undisputed contents of a J 88 medical report, her aunt’s testimony, as well
as (in part) the evidence of the appellant himself. Consequently, the court found that
both the complainant and her aunt were credible and reliable witnesses. In contrast,
it rejected the appellant’s version of events.
[9] Addressing the question of consent, the court found that the complainant had
been 11 years old when the appellant first committed sexual acts with her. This fact,
on its own, was enough to satisfy the court that there had been no consent. The acts
continued after the complainant fell pregnant when she was 14 years old and after
the child’s birth. In holding that the complainant had never consented to having se x
with the appellant, the court considered the parties’ respective ages and the power
that the appellant had over the complainant, including his manipulation and
intimidation of her. The court convicted the appellant on both charges.
Issues to be decided and legal framework
[10] On appeal, the primary issue for determination was whether the nature of the
sexual relationship between the parties had been consensual. The charge of rape
was framed in terms of section 3 of the Criminal Law (Sexual Offences and Rela ted
Matters) Amendment Act 32 of 2007 (‘SORMA’), read with the relevant portions
thereof; the remaining charge of sexual assault was framed in terms of section 5 (1).
The absence of consent is an element of both offences. In that regard, sections 1 (2)
and (3) are pertinent:
‘(2) For the purposes of sections 3 . . . “ consent” means voluntary or uncoerced
agreement.
(3) Circumstances in subsection (2) in respect of which a person (“B”) (the complainant)
does not voluntarily or without coercion agree to an act of sexual penetration, as
contemplated in sections 3 and 4, or an act of sexual violation as contemplated in
sections 5 (1), 6 and 7 . . . include, but are not limited to, the following:
(a) where B (the complainant) submits or is subjected to such a sexual act as a
result of —
(i) the use of force or intimidation by A (the accused person) against B, C
(a third person) or D (another person) or against the property of B, C
or D; or
(ii) a threat of harm by A against B, C or D or against the property of B, C
or D;
(b) where there is an abuse of power or authority by A to the extent that B is
inhibited from indicating his or her unwillingness or resistance to the sexual
act, or unwillingness to participate in such a sexual act;
(c) . . .
(d) where B is i ncapable in law of appreciating the nature of the sexual act,
including where B is, at the time of the commission of such sexual act —
(i) – (iii) . . .
(iv) a child below the age of 12 years; or
(v) . . .’
[11] The provisions of section 57 (1) are also pertinent:
‘Notwithstanding anything to the contrary in any law contained, a male or female person
under the age of 12 years is incapable of consenting to a sexual act.’
[12] The state did not rely on either sections 15 or 16 of SORMA which deal with
statutory rape and sexual assault. These provisions provide that a person who
commits an act of sexual penetration or violation with a child who is 12 years of age
or older but under the age of 16 years is guilty of an offence, notwithstanding the
child’s consent.1 Accordingly, for convictions under sections 3 and 5 (1), it was critical
for the state to have demonstrated the absence of consent.
[13] There is, of course, a difference between the concepts of consent and
submission. This has long been recognized in our c ase law. In R v Swiggelaar,2 the
erstwhile Appellate Division held that:
‘Submission by itself is no grant of consent, and if a man so intimidates a woman as to
induce her to abandon resistance and submit to intercourse to which she is unwilling, he
commits the crime of rape. All the circumstances must be taken into account to determine
whether passivity is proof of implied consent or whether it is merely the abandonment of
outward resistance which the woman, while persisting in her obje ction to intercourse, is
afraid to display or realises is useless.’3
[14] SORMA gave statutory effect to the distinction by means of a definition of
consent that acknowledges the potential impact of coercion, by several means, on a
person’s agreement to a sexual act. This allows an examination of not only the
complainant’s actions in the circumstances but also those of the accused. In their
commentary on the legislation in question, Smythe and Pithey observe as follows:
‘In practice, much of a rape trial will revolve around testimony as to the victim’s unwillingness
to engage in acts of sexual penetration with the accused. This focus on non -consent has
been identified as one of the most problematic aspects of rape law, focusing attention on the
conduct of the victim rather than that of the accused.4 The legislature’s definition of “consent”
in terms of coercive circumstances is designed to reorientate the enquiry towards the
conduct of the accused.’5
[15] The learned writers submit further that t he enquiry into consent should begin
by examining the conduct of the accused and the circumstances surrounding the
incident. This would determine whether consent was vitiated.6 They remark that
incident. This would determine whether consent was vitiated.6 They remark that
1 Sections 15 and 16 list two exceptions, viz where the perpetrator is 12 years of age or older but under the
age of 16 years, or where he or she is 16 or 17 years of age but the age difference between him or her and
the complainant is not more than two years.
2 1950 (1) PH H61 (A).
3 At 110–11. See, too, more recently, S v F 1990 (1) SACR 238 (A), at 249.
4 S v EN 2014 (1) SACR 198 (SCA).
5 D Smythe and B Pithey Sexual Offences Commentary: Act 32 of 2007 RS 2 (2019) ch2–p8.
6 Ibid.
South African law now acknowledges that rape is not only a s exual crime, but also a
crime involving the coercive exercise of emotional, psychological, economic, social,
and institutional power over another person.7
[16] The influence of coercive power on a person’s agreement to a sexual act was
considered in S v Egglestone,8 where the accused was twice the complainant’s age.
He was, moreover, her employer, and he had worn her out under continuous
pressure to give in to his advances. Mlambo JA found that there had been no
consent.9 Similarly, in S v Pretorius ,10 Cloete AJ found that the failure of the
employee of a cleaning agency to object to a client’s self -masturbation in front of her
did not amount to voluntary or uncoerced agreement to the sexual act in question.
She did not leave the premises because she had need ed the income to support her
children. The accused had abused his position of power or authority. 11 In S v
Mugridge,12 Erasmus AJA held that a court must have regard to the totality of facts to
determine whether acquiescence to certain sexual acts also co nstituted consent.
The learned judge stated that:
‘ . . . in the context of sexual relations involving children, any appearance of consent to such
conduct is deserving of elevated scrutiny, with particular attention to be paid to the fact that
the person g iving consent is a child. The inequalities in the relationship between the child
victim and the adult perpetrator are of great importance in understanding the construction,
nature and scope of the child’s apparent consent to any sexual relations. These ine qualities
may most likely influence the child’s propensity to consent to sexual relations, as “the
outcome of forced choices, precluded options, constrained alternatives, as well as adaptive
preferences conditioned by inequalities”, 13 the latter being part icularly relevant in the instant
matter.’14
7 Op cit, ch2–p10. South African Law Commission. Sexual offence: substantive law (Project 107)
7 Op cit, ch2–p10. South African Law Commission. Sexual offence: substantive law (Project 107)
Discussion Paper 85 (1999), para 9.4.7.3.1.4, available at http://www.doj,gov.za/salrc/dpapers.htm
(accessed 5 July 2009).
8 2009 (1) SACR 244 (SCA).
9 Paras 23–25.
10 2013 (1) SACR 261 (WCC).
11 Para 22.
12 2013 JDR 0658 (SCA).
13 S W Mills ‘Reforming the law of rape in South Africa’ in C McGlynn and V E Munro (eds) Rethinking Rape
Law: International and Comparative Perspectives (2010), at 259.
14 Mugridge, para 42.
[17] Our case law reflects an appreciation for the complex nature of a court’s
enquiry into the absence or otherwise of consent when confronted with charges
brought in terms of SORMA. There must be a recognition, f irstly, of the distinction
between submission and consent; secondly, the conduct of the accused, not only the
complainant, must play a role in the enquiry; and, thirdly, the context of the incidents
or incidents must be considered, including the coercive i nfluence of emotional,
psychological, economic, social, and institutional power structures. To this must be
added the need for heightened scrutiny, as described in Mugridge, when the
complainant is a child. All these factors must be evaluated in totality.
Ad conviction
[18] At the outset, I respectfully disagree with the finding of the court a quo that the
appellant was committing sexual acts with the complainant when she had been no
more than 11 years old. Her aunt testified that she had informed the police that she
had been ‘11 or 12, therearound’; the complainant herself said that ‘I was around 11
years.’ The appellant said that she had been 14 years of age. In terms of sections 1
(3) (d) (iv) and 57 (1) of SORMA, 12 years of age is the critical poin t at which the
statutory provision that a child is incapable in law of appreciating the nature of or
consenting to a sexual act no longer applies. From the evidence presented, there
was sufficient uncertainty about her exact age at the time to have created
reasonable doubt that the jurisdictional requirements of the relevant sections of
SORMA had been met. It cannot be said, on that basis, that there had been an
absence of consent.
[19] Consequently, the enquiry must turn to whether the complainant’s apparent
submission to the appellant’s sexual acts amounted to voluntary or uncoerced
agreement. It was undisputed that the complainant had been entirely dependent on
him for food, shelter, and clothing. She was a child. No other members of the
him for food, shelter, and clothing. She was a child. No other members of the
immediate family were present to take care of her. The complainant’s mother had left
to seek employment in the Western Cape. Her aunt had initially looked after her, but
subsequently had limited contact because she clashed with her brother, the
appellant. The appellant control led the complainant, instilling fear in her and
manipulating her dependency on him to his own advantage, as is apparent from the
record:
‘PROSECUTOR: Okay. So you were dependent on the accused for your everyday
living. Am I correct?
JG: Yes — and that is what he also used to threaten me sometimes.
PROSECUTOR: What would he say?
JG: He would say that if I do not do what he says, he is going to take
everything that he has bought for me and every cent that he has spent
on me.’
[20] The full extent to which the c omplainant was dependent on the appellant
emerges from the following exchange:
‘JG: I never ever gave consent. From the beginning, I was just doing what
he would say because if I [did] not do what he would say, the clothes
would be taken away. And there wa s a time when I had to run to the
shop barefoot because he took the flops.
MS C:15 Flip-flops?
JG: The flip-flops that he bought for me, because I did not want to do what
he said.’
[21] A similar exchange occurred later:
‘MS C: In essence, ma’am, I am going to put to you that my client will say that
he had sex with you and it was all consensual.
JG: No, it was not consensual.
MS C: And he will say that at no stage did you ever object to him having sex
with you.
15 It is unnecessary to reveal the name of the appellant’s legal representative.
JG: I did object a few times and when I did, [the appellant] would take
everything that he has bought, up to a cellphone that he bought for
me, and he put in a pin of his own on the phone so that I could not
access the phone.’
[22] There was complete and utter dominance by the appellant over the
complainant, from necessities to the smallest items of clothing. The deprivation of
access to and use of her cellphone, moreover, would have placed her under severe
pressure to have cooperated. For an adult, there would possibly have been the skills
or coping mech anisms required to have endured and adapted to the situation,
without yielding entirely to the appellant, but this would have been a bridge too far for
a child. The appellant’s control over the complainant would explain any appearance
of submission on her part. There was little, if anything, she could have done to alter
her plight. She was very afraid of the appellant. He had threatened her, saying that
he did not fear prison and that he would wait for her at the school gate to kill her if
she told anyone about what was going on.
[23] The context in which the sexual acts took place was characterised by an
extreme power imbalance. The appellant enjoyed a hierarchy established on
numerous factors: his status as a male, an adult, a parent; his position as the main, if
not sole, source of financial support for the complainant; and the emotional and
psychological leverage that he would have had over her once their child, LG, was
born. This must be viewed in the almost complete absence of a mother figure, apart
from the role played by the complainant’s aunt — to the extent that this had even
been possible, considering her estrangement from the appellant. There were,
moreover, no close siblings to whom the complainant could have turned. It was
within this context that the complainant, in the end, simply seems to have given in to
the will of the appellant. This much is evident from the record:
the will of the appellant. This much is evident from the record:
‘JG: He would touch me constantly, take me outside, touch me, molest me,
and then bring me back in. That is how the cycle continue d, going on
and on and on.
PROSECUTOR: You say you did not give him permission to have sexual intercourse
with you. Is that correct?
JG: No, I did not, but later on I just left it because I was tired of fighting
back.’16
[24] It cannot be said, in any way, tha t complainant’s submission to the appellant
was accompanied by voluntary and uncoerced agreement. The parties’ conduct, the
many and varied power structures that informed the context, and the fact that the
complainant was a child, all demonstrate conclusiv ely the absence of consent. I am
satisfied that there was no misdirection on the part of the court a quo regarding its
conviction of the appellant.
Ad sentence
[25] The appeal regarding sentence was focused almost exclusively on the charge
of rape rather than that of sexual assault. The former attracted the minimum
sentencing provisions contained in section 51 (1) of the Criminal Law Amendment
Act 105 of 1997 (‘CLAA’). The state relied, in this regard, on the age of the
complainant, the fact that she had been in a domestic relationship with the
appellant,17 and that she had been raped on two or more occasions.
[26] Counsel for the appellant referred to S v Malgas ,18 which continues to serve
as a reliable set of compass bearings in relation to how the minimum sentencing
provisions must be applied. Terblanche summarises the essence of the decision as
follows: (a) the prescribed sentences are the starting point; (b) if a departure
therefrom is called for then the court should not hesitate to depart; (c) for purposes of
determining whether a departure is called for, a court must weigh up all
considerations that are traditionally relevant to sentencing; and (d) there must be a
departure when the prescribed sentence would be unjust.19
16 Emphasis added.
17 As envisaged under section 1 of the Domestic Violence Act 116 of 1998.
18 2001 (1) SACR 469 (SCA).
19 S S Terblanche A Guide to Sentencing in South Africa 3 ed (2016), at 76-8
[27] Shortly afterwards, in S v Dodo ,20 the Constitutional Court emphasised the
concept of proportionality regarding the period of incarceration to be imposed for the
offence committed. The court held that the term, ‘offence’, consisted of all the factors
relevant to the nature of the crime its elf, as well as the personal and other
circumstances relating to the offender. To justify the deprivation of his or her
freedom, it had to be shown that the period of incarceration was reasonably
necessary to curb the offence and punish the offender. The l ength of punishment
must be proportionate to the offence. 21 In S v Vilakazi ,22 several years later, the
Supreme Court of Appeal reiterated the importance of the principle. The punishment
imposed must be proportionate to what the offender deserved, no less and no more.
The court stated that a prescribed sentence cannot be assumed, a priori , as
proportionate in a particular case, and must be determined upon consideration of the
circumstances. The essence of Malgas and Dodo was that disproportionate
sentences must not be imposed; courts were not vehicles for injustice. 23 The court
went on to hold, however, 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
“flimsy” grounds that Malgas said should be avoided.’24
[28] The decision of the Supreme Court of Appeal in S v Abrahams25 is often cited
in cases such as the present to justify the implementation of the proportionality
principle. In that regard, Cameron JA observed that some rapes were worse than
others. A life sentence should be reserved for cases devoid of substantial fact ors
others. A life sentence should be reserved for cases devoid of substantial fact ors
compelling the conclusion that such a sentence was inappropriate and unjust. 26 The
20 2001 (1) SACR 594 (CC).
21 Para 37.
22 2009 (1) SACR 552 (SCA).
23 Para 18.
24 Para 58.
25 2002 (1) SACR 116 (SCA).
26 Para 29. See, too, S v Swartz and Another 1999 (2) SACR 380 (C), at 386b–c.
decision was referred to in S v Mahomotsa ,27 mentioned by counsel for the
appellant, where Mpati JA indicated that the lack of violence in the commission of a
rape was a factor that could be considered in deciding whether substantial and
compelling circumstances were present. 28 The learned judge stated further that,
even in cases that fell within the categories stipulated under the CLAA, there were
bound to be differences in their degrees of seriousness. Rape cases were always
serious, but some would be more serious than others.29
[29] There are undoubtedly differences between one case of rape and the next.
The danger of implementing the CLAA as a blunt instrument should not be
underestimated. The prescribed sentences can be imposed without proper
recognition of the complexity of the matrix in which the accused’s personal
circumstances, the nature of the crime, and the values of the community are
situated.30 Nevertheless, the facts of the present matter are especially egregious.
Incestuous rape is located close to the extreme margin on any scale of seriousness
that can possibly be applied.
[30] In Abrahams, Cameron JA said as follows:
‘ . . . rape within the family has its own pec uliarly reprehensible features, none of which
subordinates it in the scale of abhorrence to other rapes . . . The rapist may think the home
offers him a haven for his crime, with an accessible victim, over whom he may feel . . . he
can exercise a proprieta ry entitlement . . . [A] family victim may moreover for reasons of
loyalty or necessity feel she must conceal the crime. A woman or young girl may further
internalise the guilt or blame associated with the crime, with lingeringly injurious effects. This
is particularly so when the victim is the rapist’s own daughter, and the more so when the
daughter is of tender years.’31
[31] The learned judge went on to remark that the fact that family rape also
involves incest complicates its damaging effects. Incest is sti ll a crime; deep social
involves incest complicates its damaging effects. Incest is sti ll a crime; deep social
27 2002 (2) SACR 435 (SCA).
28 Para 17.
29 Para 18.
30 See S v Kleinveld (unreported, case no. CC 16A/2025, Eastern Cape Division, Makhanda), 31 October
2025.
31 Para 23 (b).
and religious inhibitions and stigma surround it. Rape, in such circumstances,
exploits and perverts the bonds of love and trust that the family is meant to nurture. 32
In S v Marx,33 Cameron JA dealt with a similar matter and analysed the phenomenon
of domestic sexual predation. The familial predator, as it was termed, exploits the
opportunities that intimate engagement offers and the physical spaces that the home
affords to prey upon his victim. He uses the ties that bind, both emotional and
material, to secure compliance and concealment.34
[32] The Supreme Court of Appeal, in S v PB ,35 was confronted with similar facts
as those in the present matter. The appellant, a 38 -year-old man with previous
convictions, had raped his 12 -year-old daughter. A life sentence was imposed. The
court, per Bosielo JA, reiterated the correct approach to an appeal against a
sentence given under the CLAA. It was a different scenario to sentences imposed
under the ordinary sentencing regime. Quoting Malgas,36 the learned judge
confirmed that prescribed sentences could not be departed from lightly or for flimsy
reasons. A proper inquiry on appeal was whether the facts that were considered by
the sentencing court were substantial and compelling. 37 Bosielo JA found that the
incestuous nature of the rape, the respective ages of the parties, the appellant’s
commission of previous sexual acts with the complainant, and the emotional and
psychological suffering that she had endured gave rise to seriously aggravating
circumstances that had to be accorded proper weight. There was no basis upon
which to justify a departure.38
[33] More recently, in S v KTK ,39 the court considered an appeal involving
incestuous rape. The appellant had raped his 14 -year-old daughter, resulting in the
birth of a child. A life sentence was imposed. Mossop J held that the seriousness of
the rape was compounded and exacerbated by th e fact that the appellant was the
the rape was compounded and exacerbated by th e fact that the appellant was the
biological father of the complainant. The learned judge stated that his conduct was
32 Para 23 (c).
33 2005 JDR 1126 (SCA).
34 Para 203.
35 2013 (2) SACR 533 (SCA).
36 Malgas, para 9.
37 Para 20.
38 Para 24.
39 2025 JDR 2370 (KZP).
‘disgraceful and shameful and entirely deserving of the minimum sentence
prescribed by law.’40
[34] In the present matter, the court a quo ac knowledged the appellant’s age and
the fact that he had eight children. It correctly recognized, however, that he was not
the primary caregiver and that the minor children enjoyed the support of their various
mothers. The appellant’s previous convictions o n charges of rape and assault with
intent to do grievous bodily harm were properly considered. The court remarked that
the sentences imposed had clearly failed to deter him from reoffending, and that
there was little to no chance of rehabilitation. It deal t with the many aggravating
factors that were present, discussing at some length the parent-child relationship and
the damage inflicted thereon, as well as the emotional and psychological scars that
the complainant would bear for the rest of her life. There had been a severe abuse of
trust. The appellant had, moreover, demonstrated no remorse. Accordingly, the court
found that the aggravating factors were overwhelming and far outweighed the
mitigating factors, including the appellant’s personal circumstance s. There were no
substantial and compelling circumstances to justify a departure from the prescribed
sentence.
[35] A court of appeal will not interfere lightly with the trial court’s exercise of its
discretion.41 Du Toit observes that:
‘A court of appeal will not, in the absence of material misdirection by the trial court, approach
the question of sentence as if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do so would be to usurp the sentencing dis cretion of
the trial court…’ 42
[36] Case law supports the cautious approach. In S v Bogaards ,43 Khampepe J
held that:
40 Paras 14 and 21.
41 This is a well -established principle. See S v Romer 2011 (2) SACR 153 (SCA); S v Hewitt 2017 (1) SACR
309 (SCA); and S v Livanje 2020 (2) SACR 451 (SCA).
309 (SCA); and S v Livanje 2020 (2) SACR 451 (SCA).
42 E du Toit (et al) Commentary on the Criminal Procedure Act RS 66 (2021), ch30-p42A.
43 2013 (1) SACR 1 (CC).
‘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; th e 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.’44
[37] Having considered the facts of the matter and the investigation by the court a
quo into the presence or otherwise of substantial and compelling circumstances, I
am satisfied that there is no reason to interfere with the sentence imposed for
conviction on t he charge of rape. To do so would be to risk the trivialization of the
case. The appellant abused and manipulated his power over the complainant for
more than a decade, perverting the father -daughter relationship and ensuring that
succeeding generations would be tainted by the shame that accompanies incest.
[38] Counsel for the appellant made no submissions regarding the sentence
imposed for conviction on the charge of sexual assault. Similarly, having considered
the facts and the approach taken by the court a quo, I am satisfied that there was no
misdirection. There is no basis upon which to interfere.
[39] Consequently, I would make the following order:
The appeal against sentence is dismissed.
______________________________
JGA LAING
JUDGE OF THE HIGH COURT
I agree.
44 Para 41.
______________________________
R KRÜGER
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
For the appellant: Adv Geldenhuys
Instructed by: Legal Aid, South Africa
Makhanda Local Office
69 High Street
MAKHANDA
For the respondent: Adv Van Rooyen
Instructed by: Director of Public Prosecution
94 High Street
MAKHANDA
Date heard: 21 January 2026.
Date delivered: 21 April 2026.