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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: AR350/2022
In the matter between:
S[...] C[...] L[...] APPELLANT
and
THE STATE RESPONDENT
Coram: Siwendu and Mathenjwa JJ
Heard: 08 May 2026
Delivered: 22 May 2026
Summary: Criminal law — Sentence — Rape of a child — Complainant five
years old — Appellant pleading guilty in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977 — Conviction on single count of rape — Applicability
of prescribed minimum sentence in s 51(1) of the Criminal Law Amendment Act
105 of 1997 — Life imprisonment — Whether guilty plea, apology, personal
circumstances and prospects of rehabilitation constituted substantial and
compelling circumstances — Apparent absence of severe physical injury not a
mitigating factor in terms of s 51(3)(aA) — Psychological and bodily
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consequences of rape inseparable — Familial breach of trust — No genuine
remorse established — No substantial and compelling circumstances - No
misdirection by trial court — Sentence not disproportionate or shockingly
inappropriate — Appeal dismissed.
ORDER
On appeal from: Regional Court, Scottburgh (sitting as court of first instance):
1. The appellant’s appeal against the sentence is dismissed.
JUDGMENT
Siwendu J (Mathenjwa J concurring)
Introduction
[1] This appeal is against the life sentence imposed by the Regional
Magistrate, sitting in Scottburgh. The appellant, S[...] C[...] L[...], an adult male
who was approximately 35 years old at the time, was charged with one count of
the rape of ML, a five-year-old minor child. ML is the appellant’s paternal
niece.
Background
[2] The rape incident occurred during school holidays on 25 December 2019,
while ML was visiting her father’s family at Malangeni , where the appellant
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resides. ML reported the incident and was examined by Dr Pratt at 23:30, the
same day.
[3] The charge against the appellant was proffered in terms of Part 1 of s 3 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007, read with the minimum sentencing provisions of s 51(1) of the Criminal
Law Amendment Act 105 of 1997 ( the CLAA).1 The appellant was represented
by the Legal Aid South Africa.
[4] At the trial conference, the appellant disputed the rape incident. It was
recorded that he would plead a ‘not guilty plea ’. However, at the trial, he
pleaded guilty to a single act of vaginal penetration of ML and tendered a
statement in terms of s 112(2) (the section 112(2) statement) of the Criminal
Procedure Act 51 of 1977 (the CPA). He was denied bail and remained in
custody throughout the trial proceedings.
[5] The appellant’s account of the rape incident is that on Christmas day, he
was in the company of his cousins, ML’s father, his parents and other people. He
had consumed alcohol. He went to his backroom with two of his cousins ,
including ML’s father , but fell asleep. His s 112 (s) statement states that the
appellant’s friend woke him up and thereafter left the room. The appellant was
alone with ML. He admitted to a single act of sexual penetration.
[6] In the s 112(2) statement, the appellant admitted to all the elements of the
crime; namely, the act of penetration, that the conduct was intentional, and
unlawful. He admitted that he was aware of his actions despite having
1 Section 51(1) reads:
‘(1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall
sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life.’
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consumed alcohol. He accepted that a minor, ML , was legally incapable of
consenting to sexual intercourse. He knew his conduct was wrongful.
[7] There is nothing ambiguous or irregular in the guilty plea tendered by the
appellant. The trial court was satisfied that it was made freely and voluntarily. It
covered all the elements of the offence. The appellant was accordingly
convicted and charged on 13 February 2022.
[8] The appellant had previous convictions. On 2 Dec ember 2014, the
appellant was convicted of possession of dependence-producing substances
(dagga). On 23 June 2016, he was convicted on two counts of attempted murder
and a count of malicious damage to property, but these were taken as one count
for purposes of sentence , which was eight years’ imprisonment, half of which
was suspended for five years, in respect of malicious damage to property, a fine
of R5000 or 18 months imprisonment.
[9] Since the complainant was under the age of 16 years, s 51(1) of the
CLAA, mandates that a sentence of imprisonment for life be imposed on the
appellant unless substantial and compelling circumstances existed which
justified the imposition of a lesser sentence in terms of s 51(3)(a).2
[10] In arriving at the sentence, t he trial court considered the aggravating and
mitigating factors in respect of the circumstances of the offence, such as it being
on Christmas day, the tender age of ML. It weighed the breach of trust given the
familial relationship and the social effects of the crime. It considered the
2 Section 51(3)(a) provides that:
‘(3)(a) 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 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 to impose a term of imprisonment for a period not exceeding 30 years.’
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mitigating factors, including the appellant’s guilty plea as an expression of
remorse.
[11] The mitigating factors placed before the trial court, were the appellant’s
personal circumstances. He was 35 years old at the time. He attained grade 12
and had three children who were two, six and eleven years old. He was the sole
breadwinner and earned R 6500 as a woodworker, but the amount varied from
month to month. He was arrested on 27 December 2019 but made his first
appearance on 28 August 2020 . He then convicted and sentenced on 16
February 2022.
[12] The trial court considered that the appellant had minor children and
weighed these factors with his previous convictions. It found that when faced
with serious crime as this, personal circumstances receded to the background.
The seriousness of the offence, the young age of the complainant, and the
breach of trust inherent in the familial relationship were weighty aggravating
factors. It concluded that the mitigating factors did not constitute substantial and
compelling circumstances justifying a deviation from the prescribed minimum
sentence.
[13] As alluded to, t he appeal is limited to the life sentence imposed by the
trial court. The grounds for appeal were prefaced on the trial court’s application
of the well -established Zinn Triad,3 and the need to balance the nature of the
punishment, which should fit the crime, the offender, the interests of society all
of which must be blended with a measure of mercy. The second prefix was
based on the proportionality of the sentence and prospects of rehabilitation of
the appellant.
3 S v Zinn 1969 (2) SA 537 (A) at 540G.
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[14] It is contended that the trial court misdirected itself in failing to find that
there were substantial and compelling circumstances which warranted a
departure from the prescribed minimum sentence of life imprisonment. The
complaint on appeal is directed at the way the trial court weighed the evidence
and factors before it to arrive at the life sentence imposed. It was submitted that
the sentence was harsh.
[15] The first criticism is levelled at the failure by the trial court to attach
some weight to the guilty plea. It was contended that the guilty plea ought to
have weighed in favour of the appellant to ameliorate the gravity of the sentence
because he did not waste the court’s time with a protracted trial. Importantly, the
guilty plea obviated the need for ML to testify and expose her to further trauma.
These factors should have been weighed.
[16] Counsel for the appellant conceded the trauma effects of the rape and
accepted the evidence of the psychological fallout, being a consequence of the
rape. Nevertheless, he submitted that there was ‘a singular act of penetration ’.
The J88 shows that ML did not suffer serious physical harm. The appellant had
apologised to ML’s father for his conduct.
[17] Notwithstanding that the appellant had previous convictions, it was
submitted that he should have been construed as a first offender in respect of
rape. The submission means the previous convictions would recede to the
background when considering an appropriate sentence. It was further submitted
that the appellant may be a good candidate for rehabilitation.
[18] The question is whether there was a misdirection by the trial court,
warranting interference with the sentence and/or the sentence imposed was
shockingly inappropriate or disproportionate, and thus impels this Court to
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interfere with the trial court’s exercise of discretion and impose a lesser
sentence.
[19] These submissions were considered after a careful consideration of the
record of the trial proceedings and the evidence tendered. ML’s father testified
that although the plea of guilty obviated the need for ML to testify, which would
have traumatised her, ML was in any event already traumatised by the rape
incident. She was receiving counselling. According to ML’s father, the
consumption of alcohol by the appellant was not an exculpating factor. This
evidence was consistent with the appellant’s s 112(2) statement.
[20] It was put to counsel that the guilty plea is a neutral factor in the present
case, and the finding that it equated to remorse was not correct in law. 4 It was
submitted that the guilty plea was tendered out of concern for ML , and the
appellant offered an apology to ML’s father for his conduct. Counsel
emphasised in argument that the written clinical findings in the J88 medical
report, which recorded that ML sustained a 5mm superficial vertical tear at the
posterior fourchette at the 6 o’clock position , made findings that the injuries
‘were suggestive of possible attempted vaginal penetration , but cannot exclude
vaginal penetration.’ The conclusion was suggestive of less serious injuries.
[21] The submission stands to be rejected on two grounds. First, it minimises
the physical consequences of the rape and is not borne out by the facts . The
injuries were found to be consistent with sexual penetration, and the appellant
accepted the contents of the J88, which were admitted in terms of s 212 of the
CPA. According to the evidence placed before the trial court and the victim
impact report, ML’s mother informed the court that ML lived with physiological
4 S v Barnard 2004 (1) SACR 191 (SCA) para 1 of the separate concurring judgement of Marais JA; S v Matyityi
[2010] ZASCA 127; 2011 (1) SACR 40 para 13 and D v S [ 2016] ZASCA 123 para 12.
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aftereffects of the rape, which include abdominal pain and constant urination, a
bladder medical consequence which requires medical attention.
[22] The second fundamental reason to reject this submission is that
jurisprudentially, it goes against the legislative scheme pertinently, s 51(3) (aA)
of the CLAA provides that:
‘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;
The submission contradicts the long-established body of precedents from higher
courts that rape is about consent, and physical harm is not a necessary indicator
of rape. 5 Furthermore, it is against the evolving social understanding of the
gravity of the rape offence , particularly a rape of a minor child .6 To be fair,
counsel readily conceded that ML suffered the psychological effects of the rape
incident.
[23] Apart from finding no support in the facts of the present matter, the
appellant’s fragmented approach, which seeks to distinguish between physical
trauma, whether visible or invisible, and psychological harm, creates an
artificial separation between the two. It fails to recognise that ML’s
psychological injury is inextricably bound to her physical being and can
manifest only through her bodily and emotional experience. It should be firmly
discouraged, consistent with development of the law.7
5 Director of Public Prosecutions Limpopo v Motloutsi [2018] ZASCA 182 para 16; Maila v S [2023] ZASCA 3
para 48.
6 Otto v S [2017] ZASCA 114 paras 13-16; S v SM [2013] ZASCA 43; 2013 (2) SACR 111 (SCA) paras 36 -42,
and Maila v S [2023] ZASCA 3 paras 50-51.
7 S v Tshoga [2016] ZASCA 205; 2017 (1) SACR 420 (SCA) para 5; and Marota v The State [2015] ZASCA 130
paras 6; 20.
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[24] Returning to the criticism of the weighing of the factors to arrive a t an
appropriate sentence, the victim impact statement obtained following a
consultation with ML’s mother was received into evidence, pointing to adverse
childhood effects for ML and her family. Despite counselling, ML cries in her
sleep and experiences nightmares. She was reported to be afraid of all males and
was clingy compared to children of her age. Although , as alluded to, the
appellant conceded this, the imprint left by the rape trauma has not resolved.
[25] It had a knock-on effect on ML’s mother emotionally. It was reported that
it compromised her ability to function at work. Both of ML’s parent testified
that their relationship broke down and t hey no longer lived together in the
aftermath of the rape incident, although ML’s father maintains regular contact
with her.
[26] The fallout stretched to the relationship with the extended family. Since
the appellant is ML’s paternal niece, ML’s mother testified that her children no
longer visit their father’s family. All this evidence is also contained in a report
prepared by Mrs Mkhize, a social worker who interviewed ML’s mother and
was before the trial court.
[27] The above facts are to be considered against the weight of the apology
tendered by the appellant , relied upon in the appeal . The finding by the trial
court that the guilty plea and the apology equated to remorse is not supported by
legal principles. As the court held in S v Matyityi ,8 the surrounding actions of
the accused, rather than what he says in court, are of importance. The
appellant’s first stance was to deny any wrongdoing.
8 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40 (SCA) (Matyityi) para 13.
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[28] The reliance on the guilty plea and the apology tendered rings hollow,
appears self-serving and is inconsistent with the argument advanced on his
behalf. The appellant did not lead evidence on the sentence but elected to
address the trial court on mitigating factors. He did not explain the change of
mind or take the court into his confidence.
[29] The apology tendered to ML’s father falls short of the exerting standards
of genuine remorse and contrition articulated by the court in Matyityi. It cannot
be elevated to the level of remorse, which includes an undertaking not to repeat
the wrongdoing.9 When evidence of ML’s father is read in the proper context, he
makes it plain that although he would accept an apology, the damage had
already been done . Apart from what is articulated in case law, reparation is
integral to genuine remorse.10
[30] It bears emphasising that a lthough MLs was a minor, unable to exercise
self-agency and is under the care of her parents, the law singles her out as a
specific vulnerable class for protection . ML’s inalienable constitutional right to
personal autonomy, bodily and sexual integrity, her right to dignity, right to
safety, and equality accrue and are conferred to her, not her parents . To pass as
genuine contrition and demonstration of remorse, mechanisms to repair directed
at her as a self-standing holder of the protected rights, with the assistance of her
parents, would have found favour with this Court. There is no evidence of steps
taken by the appellant to this effect, given the uncontroverted evidence of the
adverse effects caused.
[31] Turning to t he individualised and appropriateness of the sentence
imposed, the starting point i n these matters is the will of the legislature unless
9 S Tudor ‘Why Should Remorse be a Mitigating Factor in Sentencing?’ Criminal Law and Philosophy 241–257
(2008) at 243.
10 Ibid at 253-255.
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substantial and compelling circumstances are found. As held in S v Malgas,11
and several other court decisions,12 courts are obliged to impose those sentences
unless there are truly convincing reasons for departing from them. Substantial
and compelling circumstances need not be exceptional but entail weighty
factors which would warrant the departure.13
[32] Other than what is already stated above, further reliance was placed on
the appellant’s age as a 35-year-old, that he had young children , was employed,
and was a candidate for rehabilitation. These were mitigating factors before the
trial court. Counsel correctly accepted that the grounds for interference with the
sentence by the appeal court are limited. Moreover, the time the appellant spent
awaiting trial was not relied upon on appeal since there was no evidence of the
reasons for the period.14
[33] Apart from the conclusion that the apology equated to remorse , which is
clearly incorrect in law, the trial court reliance on the rape having occurred on a
Christmas day as an aggravating factor is not based on legal authority. But to the
extent that it accentuates the lack of safety as an aggravating factor because the
rape occurred during holidays while ML was under the care of her parents, and
extended family, the view cannot be criticised.
[34] We can find no misdirection by the trial court or that the sentence is
shockingly inappropriate. It is a sentence that this Court would have imposed,
given the gravity of the offence, the fundamental breach of trust and the adverse
11 S v Malgas 2001 (2) SA 1222 (SCA) (Malgas) para 8.
12 Matyityi paras 18; 23; S v Dodo [2001] ZACC 16; 2001 (1) SACR 594 (CC) paras 10-11; 40; DPP , Pretoria v
Zulu [2021] ZASCA 174 para 25.
13 Malgas para 18; S v Vilakazi [2008] ZASCA 87; 2009 (1) SACR 552 (SCA) para 16.
14 S v Ngcobo [2018] ZASCA 6; 2018 (1) SACR 479 (SCA) para 1; and S v Radebe and Another [2013] ZASCA
31; 2013 (2) SACR 165 (SCA) paras 11-14.
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consequences. There was no evidence that the appellant was an appropriate
candidate for rehabilitation.
Order
[35] The following order is made:
1. The appellant’s appeal is dismissed.
_________________
NTY SIWENDU J
I agree.
_______________
MATHENJWA J
Appearances
For the Appellant: T Pillay
Instructed by: Legal-Aid South Africa
For the Respondent: A. M Makhanya
Instructed by: National Directors Public Prosecutor