(1)
(2)
(3)
REPUBLIC OF SOUTH AFRICA
•
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPORTAB~.iliQ
OF INTEREST TO THE JUDGES: ¥eS/NO
REVISED.
CASE NUMBER: A20/2025
Court a Quo Case No: MRC 121/2016
In the matter between :
BAFANA MACDONALD MPUTLA APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
2
Stroh AJ
On appeal from Mokerong Magistrate's Court, District of Mahwelereng, Limpopo (MRS
VOSTER sitting as court of first instance):
[1] The appellant was charged with five counts in the Magistrate Court of Mokerong. The
first count was contravening Section 3, read with Section 1 (2), 50, 56(1 ). 56 (a), 57, 58. 59,
60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (rape), read with Section 94, 256 and 261 of the Criminal Procedure Act 51 of 1977
and read with Section 51(2)(b) and schedule 2 of the Criminal Law Amendment Act 105 of
1997 ("the CLAA") .
[2] Second count was contravening Section 3, read with Section1 (2), 50, 56(1), 56 (a), 57,
58. 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 (rape). read with Section 94. 256 and 261 of the Criminal Procedure Act 51
of 1977 , read with Section 51(1) Part 1 and schedule 2 of the Criminal Law Amendment
Act 105 of 1997 ("CLAA"), and further read with Section 120 of the Children's Act 38 of 2005.
[3] Third Count was contravening Section 3, read with Section 1 (2), 50, 56(1 ), 56 (a), 5_7,
58. 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 (rape), read with Section 94, 256 and 261 of the Criminal Procedure Act 51
of 1977, read with Section 51(1) Part 1 and schedule 2 of the Criminal Law Amendment
Act 105 of 1997 ("CLAA").
[4] Fourth Count was contravening Section 3, read with Section 1 (2), 50. 56(1), 56 (a), 57,
58. 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 (rape), read with Section 94, 256 and 261 of the Criminal Procedure Act 51
of 1977 , read with Section 51(1) Part 1 and schedule 2 of the Criminal Law Amendment
Act 105 of 1997 ("CLAA"), and further read with Section 120 of the Children's Act 38 of 2005.
[5] Count Five was robbery read with provisions of Section 51 (2).52(2).52(a) and 52(b) of
the Criminal Law Amendment Act 105 of 1997.
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[6] The appellant was convicted in the regional court in respect of count 1 (one) for rape of
the complainanVvictim and was sentenced to 10 (ten) years imprisonment in terms of
Section 51 (2) of the CLAA . in respect of count 2 (two) for rape of complainant/victim who
was under 16 years of age and sentenced to life imprisonment in terms of Section 51(1) of
the CLAA, in respect of count 3(three) for rape of complainant/victim when accused rape
the victim/complainant more than once and sentenced to life imprisonment in terms of
Section 51 ( 1) of the CLAA and in respect of count 4(four) for rape of complainant/victim who
was under 16 years of age and sentenced to life imprisonment in terms of Section 51(1) of
the CLAA. In respect of count 5 the appellant was found not quilty and discharged.
[7] In terms of Section 309 of the Criminal Procedure Act 51 of 1977("The Act"), as amended
by Sections 10 and 11 of the Judicial Matter Amendment Ac..t 42 of 2013, the appellant has
an automatic right of appeal to the Full Bench of this court against his conviction and
sentence of life imprisonment Leave to appeal against his conviction and against his life
imprisonment is on this basis.
[8] In the Notice of Appeal, the appellant noted an appeal against the conviction and
sentence for the four counts of rape. However, in the appellant's heads of argument filed on
the 29th August 2025 in paragraph numbered 2 (two) the appellant submitted and this Court
quote: " ... we· have perused the record and it is our submission that we are unable to faulter
the Learned Magistrate on conviction on count 1;2;3 and 4, however, this Honourable
Appeal Court may in the interest of Justice consider conviction ... "
[9] In S v Chapman the Chief Justice I Mahomed, HJO Van Heerden and PJJ Olivier Judges
of Appeal stated and this Honourable Court quote:
"Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal
"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 civilisation. Women in this country are entitled to the protection of these
rights. They have a legitimate claim to walk pGacefully on the streets, to enjoy their shopping
and their entertainment, to go and come from work, and to enjoy the peace and tranquillity
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of their homes without the fear, the apprehension and the insecurity which constantly
diminishes the quality and enjoyment of their lives. "1
(10] The appeal before this court lies against the sentence of life imprisonment imposed.
The grounds for the appeal are herewith summarised: Imprisonment of life imposed is harsh
and disproportionate under the circumstance; the trial court erred in finding no substantial
and compelling circumstances to deviate from the prescribed minimum sentence
considering the mitigating circumstances before the trial court; trial court not able to find
cumulative factors in pre-sentence report that constitutes substantial and compelling
circumstances to impose a lessor sentence than life; magistrate misdirected herself by not
considering an appropriate sentence instead of the minimum sentence of life that would be
unjust; the trial court did over emphasised aggravating factors and overlooked that the
victim/complainant had no physical and/or permanent injuries and lastly the trial court
approach when sentencing the appellant was that of anger and not to apply mercy which is
an element of justice.
[11) In light of what is said in S v Chapman this Court find it necessary to mention the date
when the legislature implemented Sections 51-53 of the Criminal Law Amendment Act 105
of 1997 which was the 1st of May 1998, when minimum sentences were prescribed for
various crimes.
[12) It is important to note that the Criminal Law Amendment Act 105 of 1997 ("Act 105")
and more specifically Section 51(3) stipulates that the sentencing court may impose a lesser
sentence only if it is satisfied that "substantial and compelling circumstances" exist which
justify doing so.
(13] In S v Doda2 the Constitutional Court said that the above-mentioned legislation passed
muster. In the judgment, Ackermann J refuted suggestions that Criminal law Amendment
Act 105 of 1997 infringed upon the principle of separation of powers and find that it was
Act 105 of 1997 infringed upon the principle of separation of powers and find that it was
1 S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) at paras 3-4.
2 S v Dodo 200 I (I) SACR 594 (CC)
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permissible for Parliament to require the Judiciary to impose punishment in specified cases
provided that such punishment was not: "wholly lacking in proportionally to the crime."
(14] In regard to proportionality. Ackermann J said the following at page 614 g:
"[38] To attempt to justify any period of penal incarceration, let alone imprisonment for fife
as in the present case, without inquiring into the proportionality between the offence and the
period of imprisonment, is to ignore, if not deny, that which lies at ve,y heart of human
dignity. Human being are not commodiUes to which a price can be attached, they are
creatures with the inherent and infinite worth; (they are creatures with the inherent and
infinite worth) (own repeat); they ought to be treated as ends in themselves; never merely
as means to an end. Where the length of a sentence, which has been imposed because of
ifs general deteffent effect on other, bears no relation to the gravity of the offence (in the
sense defined in paragraph 1 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 lend
to treat the offender as a means to an end, thereby denying the offender dignity."
[15] The conviction in the trial court in respect of counts two, three and four attracts a
sentence of life in terms of Section 51 ( 1) of the Criminal Law Amendment Act 105 of 1997
("The Act") which stipulates that a High Court or Regional Court must impose a sentence of
life imprisonment if it convicted a person of rape where the victim was raped "more than
life imprisonment if it convicted a person of rape where the victim was raped "more than
once whether by the accused or by any co-perpetrator or accomplice" or where the victim
that was raped "is under the age of 16 years", unless substantial and compelling
circumstances exist, which justify the imposition of a lesser sentence.
[16] It is trite that imposition of sentence is pre-eminently a matter within the discretion of
the trial court . The appeal court·s power to interfere with a sentence is circumscribed to
instances where the sentence is vitiated by an irregularity, misdirection or where there is a
striking disparity between the sentence and that which the appeal court would have
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imposed, had it been the trial court. The question to be answered is not whether the
sentence was right or wrong, but whether the trial court used its discretion in a reasonable
manner.
(17] In S v Pi/lay 3 it was stated:
"Now the word 'misdirection' in the present context simply means error committed by the
court in determining or applying the facts for assessing the appropriate sentence. As the
essential inquiry in an appeal against sentence, however, is not whether the sentence was
right or wrong, but whether the court in imposing it exercised its discretion properly and
judicially, a mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence, it must be of such nature, degree, or seriousness that it shows, directly
or inferentially that the court did not exercise its discretion at all or exercised it
improperly or unreasonably (own emphasized). Such misdirection is usually and
conveniently tenned one that vitiates the court's decision on sentence."
[18] In the trial court, the presiding officer imposed the sentence prescribed by the Criminal
Law Amendment Act 105 of 1997, the approach on appeal is whether the facts that were
considered by the sentencing court are indeed substantial and compelling circumstances.
[19] In MDT v S4 NAVSA,SHONGWE & LEACH JJA stated : "In remarkably similar
circumstances, this court in S v PB 2013 (2) SACR 533 (SCA), after stressing that a
prescribed minimum sentence cannot be departed from lightly or for flimsy reasons, refused
to interfere with a prescribed sentence of life imprisonment imposed on a father who had
raped his 12 year old daughter. While this can only serve as a guideline, it emphasises the
necessity to impose heavy sentences in cases such as the present, to prevent young girls
from being abused. Before us counsel for the appellant was constrained to concede that
child rape is becoming prevalent in Umpopo. 5 Indeed, child rape is a national scourge that
shames us as a nation."
shames us as a nation."
JS v Pi/lay 1977(4) SA 531 (A) at 553 E-F
J AfDTv S (548/2013) [2014) ZASCA 15 (20 March 2014)
5 For recent cases see S v MM2012 (2) SACR 18 (SCA), S v SMM2013 (2) SACR 292 (SCA). S v M 2013
JDR 2747 (SCA)
7
[20) In S v PB 6 Bosielo JA reaffirmed the correct approach by a court on appeal against a
minimum sentence. as follows:
"Can the appellate court interfere with such a sentence imposed by the trial court exercising
its discretion properly, simply because it is not the sentence which it would have imposed
or that it finds schocking? The approach to an appeal on sentence imposed in terms of
the Act should, in my view, be different to an approach to other sentences imposed
under the ordinary sentencing regime (own emphasized). This, in my view. is so
because the minimum sentences to be imposed are ordained by the Act. They cannot be
departed from lightly or for flimsy reasons. It follows therefore that a proper enquiry on
appeal is whether the facts which were considered by the sentencing court are
substantial and compelling, or not (own emphas.ized again).
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[21) In paragraph 3.1 of the Appellant's heads, the legal representative for the Appellant
alleged that the life imprisonment sentence is: "schockingly harsh and induces a sense of
schock under the circumstances of this case". This Court is of the opinion that the
sentencing court is compelled to impose the minimum sentence as contained in the Criminal
Law Amendment Act 105 of 1997 unless substantial and compelling circumstances exist.
[22] S v Sikhipha "personal circumstances of the appellant as contained in the pre-sentence
report cumulative constitute substantial and compelling circumstances.,, In S v Sikhipha 7
lewis JA stated that: "Factors in mitigation include the fact that the appellant is a first
offender; that he has a wife and children dependent upon him; that he has a trade (he is a
bricklayer) and makes a living from his work; that he was 31 years old at the time of the trial.
and that he is capable of rehabilitation. Moreover the complainant was not seriously injured.
However, no evidence was led as to the psychological consequences for her of the rape.
However, no evidence was led as to the psychological consequences for her of the rape.
But there can be no doubt that the rape was traumatic for her. She was only 13 when a
neighbour. a married man, more than twice her age, dragged her across his yard and had
sexual intercourse with her against her will. Her injuries may have been minor, but she must
have been severely affected.»
4 S II PB 2013 (2) SACR 533 at para 20
1 Sikhipha v State [2006) SCA 71 (RSA)
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(23] In the evidence in the trial court, the social worker testified that the appellant was born
on the 05/01/1983 . appellant had a physical home address. appellant had a minor child (3
years old) whom appellant used to maintain, appellant passed grade 8 (tried 3 times grade
9 but failed), appellant had a fixed job since 2013 and he looked after the family financially.
In light of what was said in S v PB8 this Court is of the opinion that due to the fact that
minimum sentences are prescribed by the Act, the Appeal Court cannot depart from it
because of lightly or flimsy reasons.
[24] In paragraph 3.3 of the Appellant's heads, the legal representative for the Appellant
alleged that the sentencing court: "over emphasised the seriousness of the offences
committed and attached undue weight to the submitted mitigating factors.". This Court is of
the view that the offences committed in the trial court can never be over emphasised due to
the fact that even Parlement put into place on 1st of May 1998 the Criminal Law Amendment
Act 105 of 1997.
(25] In paragraph 3.4 of the Appellants heads, the legal representative for the Appellant
alleged that the sentencing court: "sentenced the appellant with anger and failed to blind the
imposed sentence with mercy as mercy is an element of jusUce." This Court is of the view
that mercy do indeed play a role when sentencing is considered in ordinary sentencing
regime but not in the minrmum sentencing regime except when there is mitigating
circumstances which this Court is of the opinion the sentencing court did consider.
[26) In paragraph 3.5 and 3.6 of the Appellants heads. the legal representative for the
Appellant alleged that: "although the victims must have suffered some form of trauma and
stress related to the incidents, they were better and recovered at the time the sentence was
considered." This Court is of the view that the question whether the victims feel emotionally
considered." This Court is of the view that the question whether the victims feel emotionally
better does not take away the crime that was committed and the seriousness of the crime.
[27) In paragraph 3. 7 of the Appellants heads, the legal representative for the Appellant
alleged that: "the sentencing court failed to consider the whole principle in s v Malgas9 and
8 S v PB 2013 (2) SACR 533 at para 20
~ S v Ma/gas 200 I (l) SACR -1-69 SCA
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more specifically if the imposition of the prescribed minimum sentence will be unjust." When
it comes to the word "unjust" the following is stated:: "Subject of course to any limitations
imposed by fegisfation or binding judicial precedent, a trial court will consider the particular
circumstances of the case in the light of the wefl-known triad of factors relevant to sentence
and impose what it considers to be a just and appropriate sentence·, 10 This Court is of the
view that the same principle applies as here above
{28] Considering the triad in S v Zinn11 and the objectives of sentencing, this Court is of the
view that life imprisonment is appropriate and that the sentencing court did exercise its
discretion a~ emphasized in S v Pi/lay.
Order
1. The appeal is dismissed.
I AGREE;
1~ Sv Ma/gas 2001 (I) SACR469 SCA para 12
11 SvZinn 1969 2 SA 537 (A)
JD STRoH AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,POLOKWANE
/4
UDE -ODENDAAL
THE HIGH COURT,
PO DIVISION,POLOKWANE
APPEARANCES
FOR THE APPELLANT : Mr MP Legodi
INSTRUCTED BY : Legal Aid
Polokwane
FOR THE RESPONDENT: Adv AV Mudau
10
INSTRUCTED BY : Director of Public Prosecutions
Limpopo, Polokwane
DATE OF HEARING : 19th September 2025
DATE OF JUDGMENT : CEf, March 2026