Reportable: ¥-ES/NO
Circulate to Judges: ¥-ES/NO
Circulate to Magistrates: ¥ES/NO
Circulate to Regional Magistrates: ¥-ES/NO
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH-WEST DIVISION, MAHIKENG)
IN THE APPEAL OF:
DESTA ESHETHU DEFERE
and
THE STATE
CASE NO.: CA 58/2023
REGIONAL COURT CASE NO.:RCS0/2021
APPELLANT
RESPONDENT
ORDER
It is ordered that: The Appellant's appeal against both conviction and sentence are
dismissed and the judgement and order ad sentence of the court a qua is confirmed.
JUDGMENT
CORAM : REID J et LAUBSCHER AJ:
Page 1 of49
LAUBSCHER AJ:
BACKGROUND FACTS RELEVANT TO THIS APPEAL:
[1] This is an appeal against both the conviction and the sentence imposed upon
the Appellant on a charge of rape in the Lichtenburg Regional Court in the
North-West Province on 20 April 2023.
[2] According to the record availed to this Court the Appellant was charged with
the offence of rape in that Appellant is guilty of the contravention of the
provisions of section 3 read with sections 1, 55, 56(1 ), 57, 58, 59, 60 and 61
of the Criminal Law Amendment Act (Sexual Offence and Related
Matters), Act 32 of 2007 (hereafter "the SORM Criminal Law Amendment
Act") read with sections 256, 257 and 261 of the Criminal Procedure Act,
Act 51 of 1977 (hereafter "the Criminal Procedure Act") and the provisions of
section 51(1) and Schedule 2 of the Criminal Law Amendment Act, Act 105
of 1997 (hereafter "the Criminal Law Amendment Act") as amended, in that
on or about 6 July 2021 and at or near Coligny in the Regional Division of
Ditsobotla the Appellant did unlawfully and intentionally commit an act of a
sexual penetration with a female person to wit KP, 12 years of age by inserting
his penis into the vagina of KP without her consent. Section 51(1) and
Schedule 2 of the Criminal Law Amendment Act being applicable as KP is
younger than 16 years of age.
Page 2 of49
[3] The Appellant pleaded not guilty to the charges levied against him and the
matter proceeded to trial. The Respondent adduced the evidence of the: (i)
mother of KP, Kidebone Miriam Phogojane, the victim KP (who testified
though the intermediary Tsatsinyane Bentle) and the forensic nurse Darius
Motsumi Motsepe. After the close of the Respondent's case, the Appellant
testified in his own defence.
[4] During the trial proceedings a number of exhibits were entered into evidence
including the a statement made by KP's mother to the SAPS, the birth
certificate of KP indicating that she was born on 20 September 2009, the J88
medical examination form completed by the forensic nurse, Mr Motsepe and
a statement made by KP, as well as sketch plan of the shop and shack were
the incident occurred.
[5] On the evidence before the court a quo the court a quo found the Appellant
guilty on the charge levied against him, the details of which shall be set in
more detail below.
[6] The Appellant was sentenced to:
(a) life imprisonment in terms of section 51 (1) of the Criminal Law
Amendment Act;
(b) it was ordered that the Appellant's name must be included in the
National Register for Sex Offenders; and
Page 3 of 49
(c) the Appellant was declared unfit to possess a firearm in terms of
section 103 of the Firearms Control Act, Act 60 of 2000.
[7] In terms of the provisions of section 309(1 )(a) of the Criminal Procedure Act
as amended by the provisions of section 10 of the Judicial Matters
Amendment Act, Act 42 of 2023 the Appellant is entitled to an automatic
right of appeal once the court a quo has imposed a sentence of life
imprisonment. In the record before this Court there is also an application
launched by the Appellant to apply for condonation for the failure to prosecute
this appeal within the timeframes as stipulated. This application was not
opposed by the Respondent. In as far as this appeal was prosecute outside
of the prescribed time periods, the necessary condonation is granted.
(8] The Appellant's appeal to this Court is predominantly premised on the
following grounds:
(a) That the court a quo misinterpreted the evidence before it, e.g the
court a quo focussed on immaterial inconsistencies and failed to
have regard to the facts in the matter.
(b) The court a quo erred in finding that the Respondent proved the
case against the Appellant beyond reasonable doubt and that there
was no evidence before the court proving the Appellant's guilt
beyond reasonable doubts.
Page 4 of 49
(c) There were no DNA evidence placed before the court a quo. The
court a quo incorrectly found that the victim was penetrated and
raped as there is no evidence to that effect.
(d) The court a quo overemphasised the fact that certain averments
made by the Appellant were not put the Respondent's witnesses.
(e) The medical examination of the victim shows no injuries to the
victim and shows that the victim's hymen was intact.
[9] The State, the Respondent in this appeal opposed the Appellant's appeal.
[1 O] The Appellant in this appeal was represented by Mr G A Mokaa of G A Mokaa
Attorneys and the Respondent was represented by counsel G R Zaza of the
office of the Director of Public Prosecutions. Written heads of argument were
submitted to this Court on behalf of both the Appellant and the Respondent,
the contents of which assisted this Court in the adjudication of this appeal.
THE GENERAL PRINCIPLES APPLICAPLE TO AN APPEAL ON CONVICTION:
[11] This Court has in the past in numerous judgments stated the general principles
applicable to an appeal on conviction and sentence. These principles remain
germane to each criminal appeal which is presented to this Court for
adjudication. It is therefore of importance in each appeal judgment to reiterate
these principles for the sake of the parties involved in the matter, and as such
the Court shall proceed to restate and reiterate these principles.
Page 5 of49
[12] A court of appeal must always observe the following trite principles in the
adjudication of an appeal ad conviction:
2
3
4
(a) In the matter of R v Dhlumayo and Another1 the Appeal Court (as it
was then known) stated:
"The trial court has the advantages, which the appeal judges do not
have, in seeing and hearing the witness being steeped in the
atmosphere of the trial. Not only has the trial court the opportunity
of observing the demeanor, but also their appearances and whole
personality. This should not be overlooked".
(b) In the matter of AM and Another v MEC Health, Western Cape2
the court referred to the matter of ST v CT3 and reiterated the
following "trite principles" as reaffirmed by the Constitutional Court
: "In Makate v Vodacom (Pty) Ltd4 the Constitutional Court,
reaffirmed the trite principles outlined in Dhlumayo, quoting the
following dictum of Lord Wright in Powell and Wife v Streatham
Nursing Home": 'Not having seen the witnesses puts the
appellant judges in a permanent position of disadvantage
against the trial judges, and, unless it can be shown that he
has failed to use or has palpably misused his advantage, the
Higher Court ought not to take the responsibility of reversing
1948 (2) SA 677 (A) at 705.
2021 (3) SA 337 (SCA) at para [8].
2018 (5) SA 479 (SCA) para [26].
2016 (4) SA 121 (CC).
Page 6 of49
5
6
7
conclusions so arrived at, merely on the result of their own
comparisons and criticisms of the witnesses and of their own
view of the probabilities of the case". (own emphasis)
(c) A court of appeal can only reject the trial court's assessment of the
evidence if the court of appeal is convinced that the trial court's
assessment of the evidence was wrong. If the appeal court is in
doubt, the trial court's judgment must remain in place.5
(d) The court of appeal must be careful in making decisions, which are
purely based on paper and representations in court without the
presence of the parties in the actual case.6
(e) The above referred to principles were stated in a similar vein in the
matter of S v Kebana7 as follows:
"It can hardly be disputed that the magistrate had advantages which
we, as an appeal court, do not have of having seen, observed and
heard the witnesses testify in his presence in court. As the saying
goes, he was steeped in the atmosphere of the trial. Absent any
positive finding that he was wrong, this court is not at liberty to
interfere with his findings".
S v Robinson 1968 (1) SA 666 (A) at 675 H.
Bernert v ASSA Bank Ltd 2011 (3) SA 92 CC at para [106].
S v Kebana [2010] 1 All SA 310 (SCA) para [12].
Page 7 of 49
(f) In Khoza v S8 it was confirmed that a " ... court of appeal is not at
liberty to depart from the trial court's findings of fact and credibility
unless they are vitiated by irregularity, or unless an examination of
the record reveals that those findings are patently wrong."
(g) Pon nan JA in the matter of S v Monyane and Others9 confirmed the
following regarding the powers of a court of appeal:
"This court's powers to interfere on appeal with the findings of fact
of a trial court are limited ... In the absence of demonstrable and
material misdirection by the trial court, its findings of fact are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong (S v Hadebe and Others
1997 (2) SACR 641 (SCA) at 645 e-f)."
[13] In dealing with an appellant's appeal against conviction this Court's must have
regard to the following principles and methods of assessing the evidence
before the trial court:
8
9
(a) It is trite that the onus of proof rests with the Respondent to prove
the guilt of the Appellant beyond reasonable doubt.
(A222/2022) [2023) ZAGPPHC 1122 (8 September 2023) at para [16).
2001 (1) SACR 543 (SCA) at para 15 and also see S v Francis 1991 (1) SACR 198
(A) at 198 J -199 A
Page 8 of49
10
11
12
(b) If the Appellant's version might be reasonably possibly true, he or
she would be entitled to an acquittal. The Supreme Court of Appeal
in the matter of Shackle v S10 stated:
"The court does not have to be convinced that every detail of an
accused's version is true. If the accused's version is reasonably
possibly true, in substance, the court must decide the matter on
acceptance of that version. Of course, it is permissible to test the
accused's version against the inherent probabilities; but it cannot
be rejected merely because it is improbable. It can only be rejected
on the basis of inherent probabilities if it can be said that it will be
so improbable that it cannot be reasonably possibly true".
(c) In the matter of S v Munyai11 the court stated:
"A court must investigate the defense case with the view of
discerning whether it is demonstratable false or inherently so
improbable as to be rejected as false".
(d) The Supreme Court of Appeal in the matter of S v Chabalala12
stated:
2001 (1) SACR 279 (SCA) at 288 E-F.
1988 (4) SA 712 at 915 G.
2003 (1) SACR 134 (SCA) at page 140 A-8 .
Page 9 of 49
13
"The correct approach is to weigh up all the elements which points
towards the guilt of the accused against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities on
both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the State as to exclude any
reasonable doubt to the accused's guilt. The result may prove that
one scrap of evidence or one defect in the case for either party
(such as failure to call a material witness concerning an identity
parade) was decisive but that can only be on an ex post facto
determination and a trial court (and counsel) should avoid the
temptation to latch onto one (apparently) obvious aspect without
assessing it in the context of the full picture in evidence."
(e) In the matter of S v Sithole and Others13 it was succinctly stated:
"There is only one test in a criminal case and that is whether the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that the accused is entitled to an acquittal if
there is a reasonable possibility that there is an innocent
explanation which he has proffered might be true".
1999 (1) SACR 585 W at 590.
Page 10 of 49
14
15
(f) In S v Molaza14 the court stated and confirmed the following test:
"The proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is appropriate to the application of that test in any particular
case will depend on the nature of the evidence that the court has
before it. What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict or to acquit)
must account for all the evidence. Some of the evidence might be
found to be false; some of it might be found to be unreliable; and
some of it might be found to be only possibly false or unreliable, but
none of it may be simply ignored."
(g) Addressing the concept of "reasonable doubt" the Appeal Court (as
it was then known) in the matter of R v Mlambo15 started:
"In my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused. It
is sufficient for the Crown to produce evidence by means of which
such a high degree of probability is raised that the ordinary
reasonable man after mature consideration comes to the
(2020) 4 All SA 167 (GJ) 31 para [45].
1957 (4) SA 727 (A) at 738 A-C.
Page 11 of 49
16
conclusion that there exists no reasonable doubt that the accused
has committed the crime charged. He must in other words, be
morally certain of the guilt of the accused. An accused's claim to
the benefit of the doubt that may be said to exist must not be
derived from speculation but must rest upon a reasonable and solid
foundation created either by positive evidence or gathered from
reasonable influences which are not in conflict with, or outweighed
by the proved facts of the case."
(h) The above referred to approach was confirmed by the Supreme
Court of Appeal in the matter of S v Phallo and Others16 referring
to it as a "classic decision". The SCA went on to state that the
approach of our law as represented by the said judgement
corresponds with that adopted and stated by the English Courts.
Olivier JA in the SCA went on to quote from Miller v Minister of
Pensions [1937] 2 All EL 272 (KB) wherein the following was stated:
"The evidence must reach the same degree of cogency as required
in a criminal case before an accused person is found guilty. That
degree is well settled. It need not reach certainty, but must carry a
high degree of probability. Proof beyond reasonable doubt does
not mean proof beyond a shadow of a doubt. The law would fail to
protect the community if it admitted fanciful possibilities to deflect
the cause of justice. If the evidence is so strong against a man to
(1999) (2) SACR 558 (SCA) at 562g to 563e.
Page 12 of 49
17
leave only a remote possibility in his favour, which can be
dismissed with a sentence "of course it is possible, but not in the
least probable", the case is proved beyond reasonable doubt, but
nothing short of that will suffice."
(i) The above referred to measurement must be applied by having
regard to the general principle in evaluating evidence in a criminal
case. This principle was stated in the matter of S v van der
Meyden 17 as follows:
"The onus of proof in a criminal case is discharged by the State. If
the evidence establishes the guilt of the accused beyond
reasonable doubt. The corollary is that he is entitled to be acquitted
if it is reasonably possible that he might be innocent (see for
example, R v Difford 1937 AD 370 at 373 and 383). These are not
separate and independent tests, but the expression of
the same test when viewed from the opposite perspective. In order
to convict, the evidence must establish the guilt of the accused
beyond reasonable doubt which will be so only if there is at the
same time no reasonable possibility that an innocent explanation
which has been put forward might be true. The two are
inseparable, each being the logical corollary of the other ... in
whatever the form the test is expressed, it must be satisfied upon a
consideration of all the evidence. A court does not look at the
1999 (1) SACR 447 (WLD) at 448 f-h.
Page 13 of 49
evidence implicating the accused in isolation in order to
determine whether there is proof beyond reasonable doubt
and so too, it does not look at the exculpatory evidence in
isolation in order to determine whether it is reasonably
possible that it might be true." (own emphasis)
0) The evaluation of evidence in a criminal trial comprises of the
evaluation of the "mosaic of evidence as whole" as aptly stated
in the matter of Khumalo v S 18 as follows:
"Considering all the circumstances of this case, I am of the view
that the evidence tendered by the State weighs so heavily as
to exclude any reasonable doubt about the applicant's guilt.
Expressed differently, the mosaic of the evidence as a whole is,
beyond reasonable doubt, inconsistent with the applicant's
innocence. The inescapable inference is that the applicant was
the aggressor on the night of the incident; that he shot at the
complainant, chased him into a yard, fired more shots at the
complainant and then robbed him of his money." (own emphasis)
THE GENERAL PRINCIPLES APPLICAPLE TO AN APPEAL AGAINST
SENTENCE:
18 (723/2020) [2022] ZASCA 39 (4 April 2022) at para [19] and also see R v Blom 1939
AD 188 at 202, Cornick and Another v S 2007 (2) SACR 115 (SCA) at para 42, S v
Van den Meyden 1999 (1) SACR 447(W) at 449d-e, cited with approval in S v Van
Aswegen 2001 (2) SACR 97 (SCA) at 101 a-f.
Page 14 of 49
[14] First and foremost, in the adjudication of an appeal against sentence this Court
must have regard to the general and overarching principles which have been
laid down in this regard by the Supreme Court of Appeal. These are the
following:
19
20
(a) An appeal court must be loath to interfere with the sentence of a
trial court. As far back as 1920, the Appellate Division (as it was
then known) in the case of R v Maphumulo and Others19 stated
that:
"The infliction of punishment is pre-eminently a matter for the
discretion of the trial Court. It can better appreciate the atmosphere
of the case and can better estimate the circumstances of the locality
and the need for a heavy or light sentence than an appellate
tribunal. And we should be slow to interfere with its discretion."
(b) In S v Barnard20 the Supreme Court of Appeal stated: "A court
sitting on appeal on sentence should always guard against eroding
the trial court's discretion ... and should interfere only where the
discretion was not exercised judicially and properly. A misdirection
that would justify interference by an appeal Court should not be
trivial but should be of such a nature, degree or seriousness that it
1920 AD 56 at 57.
2004 (1) SACR 191 (SCA) at para [9].
Page 15 of 49
21
shows that the court did not exercise its discretion at all or
exercised it improperly or unref!Jsonably."
(c) The above quoted phrase succinctly states the general and
overarching principle which must be adopted by this Court in the
adjudication of appeals on sentence and hence in this appeal.
(d) In S v Hewitt,21 Maya DP held that: "It is a trite principle of our law
that the imposition of sentence is the prerogative of the trial court.
An appellate court may not interfere with this discretion merely
because it would have imposed a different sentence. In other
words, it is not enough to conclude that its own choice of penalty
would have been an appropriate penalty. Something more is
required; it must conclude that its own choice of penalty is the
appropriate penalty and that the penalty chosen by the trial court is
not. Thus, the appellate court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness
that shows it did not exercise its sentencing discretion at all or
exercised it improperly or unreasonably when imposing it. So,
interference is justified only where there exists a "striking" or
"startling" or "disturbing" disparity between the trial court's sentence
and that which the appellate court would have imposed. And in
2017 (1) SACR 309 (SCA).
Page 16 of 49
such instances the trial court's discretion is regarded as having
been unreasonably exercised. "22
(e) In S v Bogaards,23 Khampepe Jin the Constitutional Court held the
following, that:
"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;
the 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."
[15] Consequently, this Court of appeal in the present matter can only interfere
with the sentence where the trial court's exercise of its discretion was patently
incorrect. The sentence must otherwise be left undisturbed.
[16] This principle was also echoed by and phrased by Du Toit24 as follows: "The
sentence will not be altered unless it is held that no reasonable court ought to
have imposed such a sentence, or that the sentence is totally out of proportion
to the gravity or magnitude of the offence, or that the sentence evokes a
feeling of shock or outrage, or that the sentence is grossly excessive or
22
23
24
At paragraph [8].
2013 (1) SACR 1 (CC) at para [41].
Commentary on the Criminal Procedure Act (Jutastat, 31 January 2021) at 30-41.
Page 17 of49
insufficient, or that the trial judge had not exercised his discretion properly, or
that it was in the interest of justice to alter it. '125
[17] The court a quo " ... enjoys pre-eminent discretion and the court of appeal will
not lightly interfere with the exercise of same. '126 A court of appeal will not
interfere lightly with the trial court's exercise of its discretion.27 In S v Singh28
Tshiqi JA held that: "The task of imposing an appropriate sentence is in the
discretion of the trial court. A court of appeal may only interfere if the sentence
is shockingly inappropriate."
[18] In the matter of Chitumbura and Another v S29 the court quoted the above
25
26
27
28
29
30
referred to phrase from du Toit with approval and proceeded to referred to the
Supreme Court of Appeal matter of S v Kgosimore30 and stated the following:
"Regard may be had also to the judgment of Scott, JA in S v Kgosimore,
1999(2) SACR 238 (SCA), relied on by the State, where his lordship held that
if the discretion of the trial court was properly and reasonably exercised, there
was no scope at all for interference in the sentence. This collection of
Also see S v Fhetani 2007 (2) SACR 590 (SCA), Director of Public Prosecutions,
KwaZulu-Natal v P 2006 (1) SACR 243 (SCA), S v Anderson 1964 (3) SA 494 (A);
Nevilimadi v S (545/13) [2014) ZASCA 41 (31 March 2014) and S v Asmal (20465/14)
[2015) ZASCA 122 (17 September 2015).
Gqika v S (CA&R 112/2021) [2022) ZAECGHC 15 (1 March 2022) at para [20).
See S v Rommer 2011 (2) SACR 153 (SCA), S v Hewitt 2017 (1) SACR 309 (SCA)
and S v Livanje 2020 (2) SACR 451 (SCA).
2016 (2) SACR 443 at para [23].
(A190/201) [2017) ZAGPJHC 274 (14 September 2017) at para [9] and [10).
1999(2) SACR 238 (SCA).
Page 18 of 49
expressions of resistance to interference in lower court sentencing
underscores just how jealously our judicial hierarchy protects the prerogative
below, and it is difficult to add to it."
THE EVIDENCE BEFORE THE COURT A QUO
[19] Having regard to the above set out principles, this Court must accordingly
proceed to consider the contents of the evidence adduced on behalf of both
the Respondent and the Appellant during the trial in this matter. The Court
now proceeds to do so.
[20] The victim's mother testified that:
(a) She is KP's mother.
(b) She saw bloodstains between the legs of trousers which KP wore
and proceeded to investigate the reasons for same, initially thinking
that it was as a result of KP menstruating.
(c) KP told her that she was raped by the Appellant. She referred to
the Appellant as "Tebe" (also alter in the record referred to as
"Teddy" - but there is no dispute between the State and the
Appellant that the references were both to the Appellant. This
report was made on a Tuesday (8 June 2021), and the incident
occurred on the previous Sunday (6June 2021).
(d) She also inspected KP's private parts and found a discharge
present.
Page 19 of 49
(e) She told her husband and the proceeded to the report the matter to
the SAPS, whereafter they went to Mahikeng to have KP medically
examined.
(f) As a result of the incident the family moved to another place of
residence and KP is "always anxious" as a result of the incident.
(g) At the time of the investigation, she noted that KP's private parts
were swollen and that there was a discharge. This was testified to
by the witness during cross examination and it was put to the
I
witness that her version as to what was found during her inspection
of KP's private parts differ in cross examination from her evidence
in chief.
(h) The witness was also confronted with a version which made by the
witness to a social worker that KP never disclosed the raped
"voluntarily". It was put to the witness that this version differs from
the witness's version in her evidence in chief.
(i) The witness was also referred in cross examination to her
statement made the SAPS and that certain detail which she is
testifying to in court was not contained in her statement to the
SAPS.
0) The witness was confronted with the contents of her statement
made to the SAPS that her husband discovered the bloodstains on
KP's trousers and not the witness as stated in her evidence in chief.
The witness then confirmed that her husband is the one who
discovered the bloodstains on KP's trousers.
Page 20 of49
(k) During cross examination the witness testified that "the doctor" told
her that that KP's private parts were "swollen but she will recover
quickly".
[21] The victim, KP, testifying through the use of an intermediary, testified that:
(a) They had to move from place to another because she was taunted
as a result of the rape.
(b) On the Sunday in question, she went to the store operated by
Teddy to purchase electricity, they were the only two people in the
shop at the time, when Teddy dragged her from the shop to "the
shack" (at the back of the shop) where he proceeded to rape her.
KP testified about the rape incident in detail in her testimony in
chief.
(c) During the rape a person came to the store and "Teddy" put his
hand over her mouth so that she could not scream and alert the
person in the store as to what was going on in the shack.
(d) After the rape her private parts hurt and when she walked it was
painful.
(e) KP did not tell her mother of the rape the same day but went to
sleep. She only told her mother on the Tuesday when she was
confronted by her mother with the bloodstains on her trousers.
(f) She told her mother that 'Teddy" raped her and provided the detail
of the incident to her mother.
(g) She never went back to the shop again.
Page 21 of 49
(h) During cross examination she was asked about other injuries she
sustained, and she testified that her wrists were reddish.
(i) She testified under cross examination that she tried to escape from
"Teddy" when they were in the shack, but he grabbed her again and
threw her on a matrass in the shack. That is where the rape took
place.
G) A portion of the cross examination of KP is not contained in the
record provided to this Court. Due this fact the Court carefully
scrutinised the closing arguments adduced on behalf of the
Appellant to the court a quo after the close of the defence's case to
note any additional issues raised by the defence emanating from
the cross examination of KP.
[22] The forensic nurse, Mr Motsepe testified that:
(a) He is a forensic nurse trained to examine rape victims with more
than 30 years of experience. He examined KP.
(b) He completed the J88 document which was entered into evidence,
and which recorded that KP sustained no visible bodily injuries
except for the following note made on page 4 of the report at the
sketch of the female genitalia: "medial healing inflammation"
accompanied by two marks indicting where the "medial healing
inflammation" indications were noticed by him on KP's private parts.
This inscription was also contained on page 2 of the report at
paragraph 9 which deals with the:" Labia Minora".
Page 22 of 49
(c) At paragraph 16 on page 2 of the J88 report the witness noticed
"clefts" at the seven o'clock position of the female genitalia. In his
examination in chief, he testified that this cleft was a "cut'. In cross
examination the witness confirmed that this was not a "fresh" cut.
(d) At paragraph 20 of the J88 form a discharge with an offensive smell
was noted and written down by the witness.
(e) He stated on the J88 on more than one instance that the absence
of injuries does not exclude sexual assault.
(f) As to the "medial healing inflammation" reference on the sketch on
page 4 of the J88 form he testified that:
i. ''Actually there was healing inflammation meaning that the
rectus it was red meaning that there was healing wounds
during sexual intercourse.";
ii. "Healing inflammation on the medial aspect of the minora was
noted during the examination there was redness around
there."
iii. "Meaning that there was penetration which injured the inside
of the vagina of the victim but now this injury was healing
gradually."
iv. "What I have noticed there was a healing inflammation on the
medial aspect of the labia minora"
(g) During cross examination the issue of the "medial healing
inflammation" was addressed at length and the witness explained
his notes in the J88 form on this aspect as follows:
Page 23 of 49
i. "Let me try to explain this. The cause of inflammation
meaning that the cause of redness if you look at this if I do
this for a long time like this, this area is going to be reddish in
colour because I have applied the force here. This is what I
have noticed that upon the medial because immediately the
penis actually it affects the medial aspect of the vagina. As it
goes to and fro it causes redness and when I examined the
patient I realised that redness was disappearing meaning that
it was healing. There is nothing that can cause redness on
the medial aspect of the labia minora expect an object, and
except a penis, except anything that can be inserted inside. If
you look at the structure of the minora the labia majora is on
top and the labia minora is inside so inside that is where now
the pain comes into contact with the vagina so it causes that
redness or repair meaning that the redness of the skin. Hence
now I see this redness is healing the healing is process it is a
wound that is fresh can be noticeable that this wound is
healing but the wound that has some ... [indistinct] it shows
signs of healing hence now I say healing."
ii. "Yes that is why I am saying it is common cause. You have
already trauma force applied I said that- in this case I said it
was through trauma the force applied because there is friction
and friction is force".
Page 24 of49
iii. "Your Worship, the vagina is injured inside hence the
inflammation - this vagina is injured inside and it is very
important although things are not ... [indistinct] but the vagina
is injured."
[23] After adducing the testimony of the above referred to three witnesses the
Respondent closed its case. The Appellant then launched an application in
terms of the provisions of section 174 of the Criminal Procedure Act. This
application was dismissed by the Court.
[24] The Appellant then proceeded to testify in his own defence. He testified that:
{a) He is 32 years old. However later in the Appellant's attorney's
address to the court a qua before sentencing it was stated that the1
Appellant is 29 years old and was born on 27 May 1991.
(b) On the day in question KP came into his shop around lunch time
and she wanted to purchase electricity. He sold her the electricity
and she left. She then came back five minutes later and purchased
three stick sweets and left. He did not see her again.
(c) The Appellant was asked: "Did you have any sexual intercourse
with her?" He answered: "No"
(d) He was asked: "Did you do anything wrong to this lady?" and he
answered "No, I did not do any wrong."
Page 25 of49
(e) The detailed evidence of KP as to the manner in which the rape
occurred was put to the Appellant who denied every element
thereof.
(f) In cross examination the Appellant denied that there is a matrass
in the shack as testified to by KP.
(g) During cross examination the Appellant denied the version of KP
that she was raped and the details of the crime as testified to be
her in her testimony in chief.
[251 The defence called no other witnesses and closed its case after the testimony
of the Appellant.
JUDGMENT OF THE COURT A QUO
[26] After receiving closing arguments on behalf of the Respondent and the
defence, the court a quo proceeded with its judgment.
[27] In its judgment the court a quo inter alia stated and found the following:
(a) On key aspects in the matter there are no material contradictions
between the state witnesses.
(b) The testimony of KP's mother was straight forward and to the point
as to what was told to her by KP, and any contradictions her
evidence and that of KP was non-material. Her evidence was
consistent with that of KP.
Page 26 of 49
(c) The court a quo found that KP's evidence was much more detailed
than that of her mother and that KP " ... made a favourable
impression as a witness. Despite her age, she spoke clearly
and forthrightly. She withstood intense repetitive and
sometimes embarrassing cross-examination for two days.
Her recollection of the incident and narration remained
consistent. She was very calm under this pressure. There is
nothing in her whole testimony that creates a suspicion that
she was fabricating any aspect of her testimony. In my view
she is an honest witness. She even managed to clearly explain
away the irrelevant contradictions in her police statement and
her testimony and in any event, some of the testimony that she
gave, was left unchallenged by the accused.
11
• (d) In respect of the evidence of the forensic nurse the court a quo
noted that the language which he used to described certain finding
during his examination of KP was not clear. However, his findings
are to a certain extent corroborated by KP's mother's evidence, i.e.
the swelling and discharge present on KP's private parts.
(e) This is also corroborated by KP who testified that she experienced
pain whilst walking.
(f) The court a quo found: "In my view there is sufficient corroboration
to the fact that the victim was sexually penetrated."
(g) Importantly for the purposes of this appeal, the court a quo - being
the court before whom the Appellant testified - found the following
regarding the evidence of the Appellant: "The accused did not
Page 27 of 49
impress me as an honest witness. His evidence developed during
cross-examination by the prosecutor. It also was creatively
developed during re-examination. Important aspects were not put
to witnesses when they were testifying. For instance, we have
already spoken about the issue of time. It was important in my view
that the mother, at least when she was testifying, be confronted
about the fact that it was not in the morning, but at lunch time. It
was also important along those lines for the accused to have
confronted the mother to say that in fact, your husband he is used
to coming here and buying on credit. It was also important in my
view for also the mother to have been confronted around the fact
about the description of the layout of the outside of the shack and
the tuckshop. That is that the tuckshop does not have a perimeter
fence and anyone can actually access the tuckshop from the front
and anyone can actually go to the back of the tuckshop at the shack
or nearby because there is no security perimeter. It was also
important for the victim for it to have been put to the victim the fact
the shack, the corrugated iron there, is not bended because the
victim is saying when I held on to the arrogated iron in order to resist
being pushed into the shack, the iron could not injure me, because
it is blended. That much was not disputed."
(h) The court a quo proceeded to find that: "In my view the
corroborated and straight forward evidence of the state witnesses
is sufficient. The evidence of the accused on the above
assessment is highly improbable and stands to be rejected. The
Page 28 of49
victim's testimony to a materially greater extent in my view, was
clear satisfactory and reliable. In my view indeed the state
managed to prove the case against the accused beyond a
reasonable doubt."
[28] The court proceeded to find the Appellant guilty of the crime of rape that he
was charged with.
SENTENCE BY THE COURT A QUO
[29]
1
In dealing with sentence the court a quo took into account the following
personal circumstances of the Appellant which placed before the court:
(a) He is 29 years old.
(b) He is a first offender as the Respondent was not able to prove any
previous convictions against the Appellant.
(c) He is an Ethiopian who resides the past 10 years in South Africa.
(d) He is unmarried and have no children but has five brothers and a
sister who are all residing in South Africa and all conduct tuck shop
businesses. The Appellant earned approximately R 10 000.00 per
month from his tuck shop business.
(e) Subsequent to the committing of the crime the community looted
the business and destroyed same.
[30] The court a quo also took note of and discounted the seriousness of the crime
committed against a child. The court a quo dealt with the prescribed minimum
Page 29 of49
sentence in view of the fact that KP was under the age of 16 years when she
was raped by the Appellant as contemplated in and Schedule 2 of the Criminal
Law Amendment Act.
[31] In this regard the court a quo stated, "The victim, and I know I am mentioning
this for probably the third time, but the victim in this case was 12 years old.
So, I agree with the PP, that the fact that she was weak and vulnerable is
something indeed that should be looked as an aggravating aspect against
you."
After a detailed consideration of the seriousness of the crime, the personal
circumstances of the Appellant, the interest of society and the question of
whether there was any substantial and compelling circumstances present to
deviate from the prescribed sentence, the court a quo stated the following:
" ... the totality of your submissions, together with considerations, as I said
earlier on, of Ubuntu and mercy, do not bring a conclusion that there are
substantial and compelling circumstances that exist and were placed before
this court. By, in answering the last question, I do not think the prescribed
sentence would be disproportionate under the particular circumstances."
[32] The court a quo accordingly found that there were no substantial and
compelling circumstances present to warrant the departure from the
prescribed minimum sentence as per the provisions of section 51(1) of the
Criminal Law Amendment Act, for the offence of which the Appellant was
found guilty, i.e., rape as contemplated in section 3 of the SORM Criminal Law
Page 30 of49
Amendment Act where the victim is a person under the age of 16 years, as
contemplated in the provisions of Schedule 2, Part 1, (Rape)(b)(i) to the
Criminal Law Amendment Act.
[33] The court a quo accordingly proceeded to sentence the Appellant as set out
in paragraph [6] above.
THE PRESCRIBED MINIMIMUM SENTENCE
[34] The provisions of section 51(1) of the Criminal Law Amendment Act are
applicable in this matter and prescribe the following minimum sentence in a
peremptory manner: "Notwithstanding any other law, but subject to
subsections (3) and (6), a regional court or a High Court shall sentence a
person(-- (a) if it has convicted {a person] of an offence referred to in Part 1
of Schedule 2 ... to imprisonment for life." (own emphasis)
[35] Section 51 (3)(a) of the Criminal Law Amendment Act contains a redeeming
provision and states the following: "If any court referred to in subsection (1)
or (2) is satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence than the sentence
prescribed in those subsections, it shall enter those circumstances on the
record of the proceedings and {may] must thereupon impose such lesser
sentence: Provided that if a regional court imposes such a lesser sentence in
respect of an offence referred to Part 1 of Schedule 2, it shall have jurisdiction
Page 31 of 49
to impose a term of imprisonment for a period not exceeding 30 years." ( own
emphasis)
(36] Section 51 (3)(aA) of the Criminal Law Amendment Act aids the interpretation
of the phrase "substantial and compelling circumstances,, by stating which
facts shall not constitute "substantial and compelling circumstances".
This provision reads as following: "When imposing a sentence in respect of
the offence of rape the following shall not constitute substantial and
compelling circumstances justifying the imposition of a lesser sentence: (i) The
complainant's previous sexual history; (ii) an apparent lack of physical injury
to the complainant; (iii) an accused person's cultural or religious beliefs about
rape; or (iv) any relationship between the accused." (own emphasis)
(37] The provisions of section 51 (1) refer to Schedule 2, Part 1. In respect of this
matter the applicable provisions of this Part of Schedule 2 is the part which
deals with "rape". This part reads as follows:
"Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007-
(a) when committed-
(i) in circumstances where the victim was raped more
than once whether by the accused or by any co
perpetrator or accomplice;
Page 32 of 49
(ii) by more than one person, where such persons acted in
the execution or furtherance of a common purpose or
conspiracy;
(iii) by a person who has been convicted of two or more
offences of rape or compelled rape, but has not yet
been sentenced in respect of such convictions; or
(iv) by a person, knowing that he has the acquired immune
deficiency syndrome or the human immunodeficiency
virus;
(b) where the victim-
(i) is a person under the age of 16 years;
(iA) is an older person as defined in section 1 of the Older
Persons Act, 2006 (Act No. 13 of 2006);
(ii) is a physically disabled person who, due to his or her
physical disability, is rendered particularly vulnerable; or
(iii) is a person who is mentally disabled as contemplated in
section 1 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007; or
(c) involving the infliction of grievous bodily harm."
THE PERTINENT ISSUES IN THIS APPEAL IN RESPECT OF CONVICTION AND
SENTENCE
Page 33 of 49
[38] On the evidence as adduced before the court a quo, the court a quo applied
the provisions of section 51 (1) of the Criminal Law Amendment Act and
sentenced the Appellant to life imprisonment, having found no "substantial
and compelling circumstances" as contemplated in section 51(2) of the
Criminal Law Amendment Act, to trigger the redeeming effect of the last
mentioned section.
[39] Having regard to the fact that the court a quo, following and implementing the
provisions of section 51 ( 1) of the Criminal Law Amendment Act and sentenced
the Appellant as aforestated, the crisp issue in this appeal in respect of the
Appellant's appeal against his sentence is whether the court a quo was correct
in its finding that there are no " ... substantial and compelling
circumstances justifying the imposition of a lesser sentence ... " than life
imprisonment.
[40] Accordingly, one needs to turn to the content and interpretation which was
given in the past by the courts to the phrase " ... substantial and compelling
circumstances ... ".
[41] In respect of sentence the Appellant placed his personal circumstances as
referred to above before the Court. It must also be emphasised that the
Appellant was a first offender, as the Respondent was not able to prove the
Appellant's previous conviction which related to the transgression of the
Disaster Management Act during the Covid pandemic.
Page 34 of 49
[42] The Respondent pointed out a number of aggravating circumstances which
emanated from the facts which were considered proven by the court a quo.
The Respondent submitted that both the conviction and sentence imposed by
the court a quo were appropriate.
[43] The main aggravating factor in the matter being that KP was a young child
who was raped by the Appellant. This Court has quoted the findings by the
court a quo in this regard above.
[44] Having regard to the findings made by the court a quo, this Court of appeal is
satisfied that the conviction of the appellant should not be overturned.
[45] Turning to the prescribed minimum sentences imposed by the court a quo. In
the matter of S v Malgas,31 (a matter to which the court a quo also referred in
passing sentence) the following was stated by Marais JA in the SCA regarding
sentencing and the implementation of the provisions of section 51 of the
Criminal Law Amendment Act and the concomitant imposing of prescribed
minimum sentences brought about thereby:
31
" ... The very fact that this amending legislation has been enacted indicates that
Parliament was not content with that and that it was no longer to be "business
as usual" when sentencing for the commission of the specified crimes.
2001 (1) SACR 469 (SCA).
Page 35 of 49
In what respects was it no longer business as usual? First, a court was not to
be given a clean slate on which to inscribe whatever sentence it thought fit.
Instead, it was required to approach that question conscious of the fact that
the legislature has ordained life imprisonment or the particular prescribed
period of imprisonment as the sentence which should ordinarily be imposed
for the commission of the listed crimes in the specified circumstances. 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 were 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.
Secondly, a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to impose the specified
sentence. As was observed in Flannery v Halifax Estate Agencies Ltd by the
Court of Appeal, 'a requirement to give reasons concentrates the mind, if it is
fulfilled the resulting decision is much more likely to be soundly based- than if
it is not'. Moreover, those circumstances had to be substantial and
compelling. Whatever nuances of meaning may lurk in those words, their
central thrust seems obvious. The specified sentences were not to be
Page 36 of 49
departed from lightly and for flimsy reasons which could not withstand
scrutiny. Speculative hypotheses favourable to the offender, maudlin
sympathy, aversion to imprisoning first offenders, personal doubts as
to the efficacy of the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation of
co-offenders which, but for the provisions, might have justified
differentiating between them. But for the rest I can see no warrant for
deducing that the legislature intended a court to exclude from consideration,
ante omnia as it were, any or all of the many factors traditionally and rightly
taken into account by courts when sentencing offenders ... "32 (own emphasis)
[46] In the matter of S v GN,33 Du Plessis J stated in respect of the Malgas
judgment:
32
33
34
" ... As I understand the Ma/gas judgment, the prescribed minimum sentence
may be departed from if, having regard to all' the factors that play a role in
determining a just sentence, the court concludes that the imposition of the
prescribed minimum would in the particular case constitute an injustice or
would be "disproportionate to the crime, the criminal and the legitimate needs
of society" ... "34
At paragraph [7] to [9].
2010 (1) SACR 93 (TPD).
At paragraph [6].
Page 37 of49
[47] The Supreme Court of Appeal has recently confirmed that certain mitigating
personal circumstances of an accused and even the fact that an accused
person is a first offender do not constitute "substantial and compelling
circumstances " as contemplated in section 51 (2) of the Criminal Law
Amendment Act. The SCA in the matter of Mthanti v The State35 stated the
following:
35
'119] The last issue is whether there were substantial and compelling
circumstances that justified deviation from the minimum prescribed sentences
in this case. It is apparent from the above description of the events that took
place on the three occasions that the aggravating circumstances present
when committing the crimes by far outweighed the mitigating factors. The high
court was correct in considering that the appellant's criminal conduct was not
'fleeting and impetuous'; that it was 'calculated and callous', and that there
was no reason to deviate from the prescribed minimum sentences.
[20] The only submission made on appeal was that the appellant's mother died
when he was 7 years old. The suggestion was that the appellant was troubled
by the fact that his mother died without revealing the identity of his father. But
all of this was considered by the high court. The court also considered in the
appellant's favour, his personal circumstances - that he was gainfully
employed at the time of his arrest for the offences in question and supporting
his two minor children. It considered that although he lost his only biological
(Case no 859/2022) [2024] ZASCA 15 (8 February 2024) at paras [19] to [21].
Page 38 of49
parent early in his life, his uncle and aunt gave him 10 a 'good and warm
upbringing' until he abandoned his post matric studies without telling them'.
The court considered that the appellant was a first offender.
[21] The appellant ruthlessly exploited the vulnerabilities of the most exposed
members of our society. He preyed on those most affected by the high levels
of unemployment in the country. He deceived women, causing them to leave
the security and comfort of their homes. He caused them to use their meagre
financial resources to travel to Pietermaritzburg. He robbed them of their
scant belongings and then humiliated the second and third complainants by
raping them. In respect of the third complainant the rape happened in the
most degrading manner, in the presence of a third person. He then left the
complainants to their own devices in remote places at night. This he did
repeatedly, as the high court correctly found. In all three incidents there was
no basis for a departure from the prescribed minimum sentences."
[48] The above referred to case (as confirmed in the Malgas matter) confirms that
certain mitigating factors from the Appellant's personal circumstances are in
isolation not sufficient to justify a departure from the imposition of a minimum
sentence. There must be substantial and compelling reasons to do so. The
court a quo in casu did not find substantial and compelling circumstances to
deviate from the minimum prescribed sentences. As stated above, there
exists no reasons for this Court of appeal to upset or interfere in this finding of
the court a quo.
Page 39 of 49
[49] The usual triad of the crime, the offender, and the interests of society, as
enunciated in S v Zinn36 were considered by the court a quo and this Court.
In facts this was the point of departure for the court a quo in passing sentence.
[50] With regard to the offence of rape, which are disturbingly prevalent in our
country, this Court, as it has done in the past in numerous judgments in
instances where the crime of rape was dealt with by the court, deems it
appropriate to make reference to the following:
36
37
(a) The court in the matter of Vilakazi37 held as follows:
" ... The prosecution of rape presents peculiar difficulties that always
call for the greatest care to be taken, and even more so where the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is offen scant and many prosecutions
fail for that reason alone. In those circumstances each detail can
be vitally important. From those who are called upon to sentence
convicted offenders such cases call for considerable reflection.
Custodial sentences are not merely numbers. And familiarity with
1969 (2) SA 537 (A) at 540G to H.
2009 (1) SACR 552 (SCA) at para [21).
Page 40 of 49
38
39
the sentence of life imprisonment must never blunt one to the fact
that its consequences are profound."
(b) Most recently, in the matter of Director of Public Prosecutions,
Kwazulu-Natal Pietermaritzburg v Ndlovu38 the Supreme Court of
Appeal Stated:
"Rape is an utterly despicable, selfish, deplorable, heinous and
horrendous crime. It gains nothing for the perpetrator, save perhaps
fleeting gratification, but inflicts lasting emotional trauma and, often,
physical scars on the victim. More than two decades ago,
Mohamed CJ, writing for a unanimous court, 39 aptly remarked that:
'Rape is a very serious offence, constituting as it does a humiliating,
_degrading and brutal invasion of the privacy, the dignity and the
person of the victim. The rights to dignity, to privacy, and the
integrity of every person are basic to the ethos of the Constitution
and to any defensible civilization. Women in this country are
entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy the
peace and tranquillity of their homes without the fear, the
apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives.'
(888/2021) [2024] ZASCA 23 (14 March 2024) at para [73] and [74].
With reference to S v Chapman 1997 (3) SA 341 (SCA) at paras [3] to [4].
Page41 of 49
40
41
42
In similar vein Nugent JA, writing for a unanimous courf:4°, in equal
measure described rape in these terms: 'Rape is a repulsive crime,
it was rightly described by counsel in this case as an invasion of the
most private and intimate zone of a woman and strikes at the core
" of her personhood and dignity.'
(c) In Tshabalala v S (Commissioner for Gender Equality and Centre
for Applied Legal Studie sas Amici Curiae); Ntuli v S 41 the
Constitutional Court stated " ... rape is not rare, unusual and deviant.
It is structural and systemic ... "
(d) In Masiya v Director of Public Prosecution Pretoria and Another
(Centre for Applied Legal Studies and another as Amici Curiae)42
the Constitutional Court said the following of rape:
,"Today rape is recognised as being Jess about sex and more about
the expression of power through degradation and concurrent
violation of the victim's dignity, bodily integrity and privacy.
Regrettably, 26 years, since the decision of this Court in Chapman,
the scourge of rape has shown no signs of abating. On the
contrary, it appears to be on an upward trajectory."
With reference to S v Vilakazi supra at para [1].
2020 (2) SACR 38 (CC) at para [67].
2007 (5) SA 30 (CC) at para [51].
Page 42 of 49
43
(e) In recent times, this " ... upwards trajectory ... " referred to by the
Constitutional Court in 2007 seems to be continuing unabated,
notwithstanding numerous efforts form government and society at
large to address violence committed against women and children.
(f) It is not only this Court that is saying this. In the matter of Director
of Public Prosecutions. Grahamstown v T M43
"The reality is that South Africa has five times the global average in
violence against women. There is mounting evidence that these
disproportionally high levels of violence against women and
children, has immeasurable and far-reaching effects on the health
of our nation, and its economy. Despite severe underreporting,
there are 51 cases of child sexual victimisation per day. UNICEF
research has found that over a third (35.4%) of young people have
been the victim of sexual violence at some point in their lives. What
cannot be denied is that our country is facing a pandemic of
sexual violence against women and children. Courts cannot
ignore this fact. In these circumstances the only appropriate
sentence is that which has been ordained by statute."
(footnotes omitted and own emphasis)
(131/2019) [2020] ZASCA 5 (12 March 2020) at para [15].
Page 43 of 49
(51] Against this background, it is again stated that:44 " .... the courts in this country
must not shy away from its role to address and discount the fact that violence
committed against woman and children must be condemned in the strongest
terms, eradicated and the seriousness of this task must be reflected in the
manner in which the courts address same. This must be done whilst striking
a balance with the court's compelling duty to ensure that the punishment fits
the crime and, of course, the offender."
[52] In the matter of Ndou v S45 Shongwe JA stated that:
"Sentencing is the most difficult stage of a criminal trial, in my view. Courts
should take care to elicit the necessary information to put them in a position
to exercise their sentencing discretion properly. In rape cases, for instance,
where a minor is a victim, more information on the mental effect of the rape
on the victim should be required, perhaps in the form of calling for a report
from a social worker. This is especially so in cases where it is clear that life
imprisonment is being considered to be an appropriate sentence. Life
imprisonment is the ultimate and most severe sentence that our courts may
impose; therefore a sentencing court should be seen to have sufficient
information before it to justify that sentence".
[53] After a proper analysis of the all the relevant information placed before the
court a quo, the court a
1
quo was of the view there was no substantial and
44
45
Nyoka v S (CA02/2023) [2026] ZANWHC 33 (19 February 2026) at para 53.
[2012] JOL 29522 (SCA) at para [14].
Page 44 of49
compelling circumstances to justify the imposition of a lesser sentence than
the prescribed minimum sentence. Having scrutinised the reasoning of the
court a quo, this Court finds no reason to interfere with this finding.
[54] As·to the conviction of the Appellant, the court a quoin the view of this Court
correctly found that the full conspectus or mosaic of evidence placed before it
established the guilt of the Appellant. The conclusion reached by the court a
quo rationally and meticulously accounted for all the evidence before it. There
is no reason for this Court of appeal to interfere with the finding of the court a
quo in respect of the conviction of the Appellant on the count of rape as per
the charge levied against him.
[55] If one then has regard to the manner in which the court a quo dealt with the
sentencing of the Appellant it is evident that a proportioned, balanced and all
inclusive approach was adopted by the court a quo, taking into account all the
relevant evidence placed before it.
[561 The imposition of life imprisonment is, however, the most severe sanction
available to the court. It is imperative, therefore, that this Court is satisfied that
the sentence is indeed proportionate in casu.
(57] This Court specifically noted the fact that the court a quo specifically
addressed the element of "proportionality" in passing sentence.
Page 45 of 49
[58] In S v Dodo46 Ackermann J dealt with the "concept of proportionality" and
stated the following:
46
" ... The concept of proportionality goes to the heart of the inquiry as to whether
punishment is cruel, inhuman or degrading, particularly where, as here, it is
almost exclusively the length of time for which an offender is sentenced that
is in issue. This was recognized in S v Makwanyane. Section 12(1)(a) [of the
Constitution] guarantees, amongst others, the right "not to be deprived of
freedom ... without just cause." The "cause" justifying penal incarceration and
thus the deprivation of the offender's freedom, is the offence committed.
"Offence", as used throughout in the present context, consists of all 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 which could
have a bearing on the seriousness of the offence and the culpability of the
offender. In order to justify the deprivation of an offender's freedom it must be
shown that it is reasonably necessary to curb the offence and punish the
offender. Thus, the length of punishment must be proportionate to the offence .
. . . To attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without inquiring into the
proportionality between the offence and the period of imprisonment, is to
ignore, if not to deny, that which lies at the very heart of human dignity. Human
beings are not commodities to which a price can be attached; they are
creatures with inherent and infinite worth; they ought to be treated as ends in
themselves, never merely as means to an end. Where the length of a
2001 (5) BCLR 423 (CC) at paras [37] and [38].
Page46 of49
sentence, which has been imposed because of its general deterrent effect on
others, bears no relation to the gravity of the offence (in the sense defined in
paragraph 37 above) the offender is being used essentially as a means to
another end and the offender's dignity assailed. So too where the reformative
effect of the punishment is predominant and the offender sentenced to lengthy
imprisonment, principally because he cannot be reformed in a shorter period,
but the length of imprisonment bears no relationship to what the committed
offence merits. Even in the absence of such features, mere disproportionality
between the offence and the period of imprisonment would also tend to treat
the offender as a means to an end, thereby denying the offender's
humanity ."47
[59] T he principle of proportionality was also addressed in Vilakazi v S ,48 where
Nugent JA observed that a prescribed sentence cannot be assumed, a priori,
to be proportionate in a particular case. This was an issue to be determined
upon consideration of all the circumstances in the matter. In casu, the court a
quo did so, and there is no reason for this Court to interfere with the sentence
imposed by the court a quo.
[60] In this matter this Court is satisfied that the imposition of the prescribed
minimum sentence would most definitely not constitute an injustice, neither
would it be disproportionate to the crime, the criminal and the legitimate needs
of society. Again, the court a quo in dealing with the element of
47
48
At paragraphs [37] and [38].
[2008] 4 All SA 396 (SCA).
Page47 of49
"proportionality" acted in a manner which warrants no interference by this
Court.
CONCLUSION AND JUDGMENT
[61) Having had regard to the record and the arguments led on behalf of the
I
Appellant and Respondent, respectively, this Court is satisfied that there is no
basis upon which to interfere with the finding of guilt and the sentence imposed
by the court a quo.
[62) Accordingly, following order is made:
"The Appellant's appeal against both conviction and sentence are
dismissed and the judgement and order ad sentence of the court a quo
is confirmed".
I agree and it is so ordered.
FMM REID
JUDGE OF THE HIGH COURT
NORTH-WEST DIVISION, MAHIKENG
Page48 of 49
DATE OF HEARING: 3 May 2024
DATE OF JUDGMENT: 6 May 2026
For the Appellant: Mr G A Mokaa
G A Mokaa Attorneys
For the Respondent: Adv G R Zazo
Office of the Director of Public Prosecutions
Page 49 of49