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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A304/2024
JUDGMENT HEARD ON: 17 MARCH 2026
JUDGMENT:
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED
DATE : 28.04.2026
SIGNATURE
In the matter of:
M[...] N[...] T[...] M[...] APPELLANT
AND
THE STATE RESPONDENT
JUDGMENT
___________________________________________________________________________
Mzuzu AJ (Strijdom, J concurring)
INTRODUCTION
1. The appellant Mr M[...] N[...] T[...] M[...] , appeal to this Court against the
sentence of life imprisonment imposed upon him by the Regional Court,
Pretoria, on 19 February 2020. He was convicted on a single count of rape,
contravening section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, read with the provisions of section 51 of the
Criminal Law Amendment Act 105 of 1997 (the Act).
2. The complainant was an eleven -year-old girl. The appellant was a 46-year-old
male. The appellant and the complainant are related, the appellant being the
grandfather of the complainant.
3. As the sentence that was granted against the appellant is life imprisonment, the
appeal is with the automatic right prescribed in section 309(1)(a) of the Criminal
Procedure Act 51 of 1977 (the CPA). The appeal is against sentence only.
MATERIAL BACKGROUND FACTS
4. The facts of the matter are largely common cause as the appellant has pleaded
guilty.
5. The complainant and her family members came together over the December
2016 holidays and spent Christmas day at the grandparent’s home to sleep over.
They were about four grandchildren sleeping at the same place. Her grandfather
(appellant) came to fetch her from the other children and took her to his
bedroom. He started undressing her and had sexual intercourse with her. When
he was done, he made her promise not to tell anyone about the incident. She
later disclosed the abuse to one of the teachers wh o then escalated the
information until it reached her mother.
6. The appellant has pleaded guilty. However, during the pre -sentence
investigation with a social worker, he stated that the incident was a mutual
agreement between him and the victim.
LEGAL ARGUMENTS
7. The appellant’s grounds of appeal centred on the contention that the trial Court
erred in not finding substantial and/or compelling circumstances to justify a
departure from the prescribed minimum sentence of life imprisonment.
8. Counsel submitted that the following factors, cumulatively considered, should
have warranted a lesser sentence.
8.1 the appellant pleaded guilty and took responsibility and showed remorse;
8.2 the appellant was 46 years old, married, and the father of two children
aged 22 and 13;
8.3 he was not employed and received a disability grant due to a medical
disability (hypertension), he was not in good health and was in a program
to undergo heart surgery;
8.4 the fact that the State entered into a previous section 105(A) of the CPA
plea bargain, and after consulting with the victim and her family, agreed to
a sentence of 15 years direct imprisonment;
9. It was submitted by the respondent that the following factors can be regarded as
aggravating factors:
9.1 the appellant is not a first offender for a sexual offence involving a child;
9.2 the offence is prevalent, the complainant was helpless and considered a
vulnerable member of society, the appellant is the victim’s grandfather;
9.3 the appellant has betrayed the inherent trust relationship that existed
between himself and the complainant as a relative;
9.4 the appellant has caused the victim psychological trauma and the
incident affected more than just the victim but also her mother and
grandmother;
9.5 the complainant feels that her life has been thrown away as the incident
has altered her emotional wellbeing;
9.6 the incident has divided the family;
9.7 nothing can be said to have contributed to the appellant having
committed the offence save to say it was a deliberate act of self -pleasure
and gratification at the expense of the well-hood and wellbeing of a young
innocent child;
9.8 the appellant has violated the complainant’s constitutional right to
privacy and to bodily integrity and has traumatised the victim.
LEGAL PRINCIPLES
10. The principles governing an appeal against sentence are well established .
Sentencing is pre-eminently a matter for the discretion of the trial court.
11. A court of appeal will not erode that discretion and will only interfere if the trial
Court did not exercise its discretion judicially and properly. This would be the
case if the sentence is vi tiated by an irregularity or misdirection, or if it is
disturbingly inappropriate. 1
12. The appeal before this court determines thus on the answer of whether the trial
Court’s finding that no substantial and compelling circumstances existed, is one
Court’s finding that no substantial and compelling circumstances existed, is one
that a reasonable Court could not have made.
1 See v Rabie 1975 (4) SA 855 (A) and S v Packereysammy 2004 (2) SACR 169 (SCA)
13. The imposition of life imprisonment for the rape of a child under the age of 16 is
governed by section 51(1) of the CPA, read with Part 1 of Schedule 2. In
determining whether substantial and compelling circumstances exist, a court
must conduct a balancing exercise weighing the aggravating factors against the
mitigating factors as was made clear in S v Vilakazi2. A court is required to apply
its mind to the question of whether the prescribed sentence is proportionate to
the particular offence.
14. The prescribed sentence cannot be assumed a priori to be proportionate. The
enquiry requires a gradated and individual ised assessment. As the court in S v
GN3 held, life imprisonment is the ultimate sentence and should not be imposed
lightly, C ourts must differentiate between sentences, and where life
imprisonment is prescribed , the only way to differentiate is to impose a lesser
sentence if the circumstances of the case so demand.4
15. In S v Ntsheno, S v Dlamini, S v R 5 the Court was of the view that substantial
and compelling factors are all the factors taken in account in sentencing or all
everyday factors.
16. In contrast to the mitigating factors, the aggravating factors in this ca se are
profound. The appellant was convicted o f raping an eleven-year-old child as the
respondent’s argument correctly highlight that the complainant was vulnerable.
He was a family member (grandfather) and he grossly breached that position of
trust for his own gratification. The offence was committed in a family home, a
place where the child should have been safest.
17. The prevalence of such offences against children in our country as noted in S v
Hadebe and Others6 necessitates sentences that reflect the gravity of the crime
and serve as a deter rent. While a Court must always guard against imposing a
sentence that is disproportiona te, the facts of this case represent the very
paradigm of the worst type of which the legislature sought to address with the
paradigm of the worst type of which the legislature sought to address with the
prescribed minimum sentence.
18. Having weighed all the factors, I am not persuaded that the trial Court
misdirected itself. The trial Court properly considered the personal
2 2009 (1) SACR 552 (SCA)
3 2010 (1) SACR 93 (T)
4 See also S v Malgas 2001 (1) SACR 469 (SCA)
5 2010 (1) SACR (GS)
6 1997 (2) SACR 641 (SCA)
circumstances of the appellant and balanced the m against the seriousness of
the offence, the interests of society, and the vulnerability of the victim.
19. The conclusion that the aggravating factors individually and collectively, far
outweigh the mitigating factors, is one with which I agree. To impose any
sentence other than life imprisonment for the rape of an eleven-year-old child by
a trusted adult family member would in my view, be an injustice and would
diminish the seriousness with which society, through its Legislature and Courts
view such crimes.
20. This is not a sentence that induces a sense of shock rather, it is a sentence that
reflects the gravity of the offence and the legitimate outrage of the community.
The sentence is proportionate to the crime committed.
21. In the circumstances, the appeal against sentence cannot succeed.
ORDER:
(1) The appeal against sentence is dismissed.
____________________
BN MZUZU
ACTING JUDGE OF
THE HIGH COURT,
PRETORIA
I agree and it is so ordered.
____________________
STRIJDOM J
JUDGE OF THE HIGH
COURT, PRETORIA
APPEARANCES:
For the appellant: Adv. S Simpson
Instructed by: Legal Aid SA
For the respondent: Adv. E Mafunisa
Instructed by: Office of the National Prosecuting Authority