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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No. A329 / 2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 29 April 2026
SIGNATURE
In the matter between:
T[...] M[...] Appellant
and
THE STATE Respondent
___________________________________________________________________
ORDER
___________________________________________________________________
1. The appeal is dismissed but the sentence is backdated to 4 October 2024.
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___________________________________________________________________
JUDGMENT
___________________________________________________________________
TOLMAY J:
[1] The appellant was convicted on 22 October 2024 on two counts of rape and
was sentenced to life imprisonment on each count. The sentences to run
concurrently. He pleaded guilty and the appeal is against sentence only. The
appellant has an automatic right of appeal in terms of section 10 of the Judicial
Matters Amendment Act. 1 The minimum sentence provisions pertaining to life
imprisonment in terms of section 51(1) of the Criminal Law Amendment Act 2 was
applicable.
[2] The victims of the rapes were the appellant’s own children a girl L who was 10
years old and a boy K who was 8 years old. In the statement in terms of s112(2) of
the Criminal Procedure Act3 the appellant explained that the children were living with
their maternal family in Mafikeng, and he was living with his new girlfriend in K[...].
On the insistence of his girlfriend, he requested that primary care of the children be
given to him. The request was granted and the children moved in with the appellant
and his girlfriend. He enrolled them in a primary school in the area where he resided
in January 2023. Before the academic year began, he broke up with his girlfriend
and became a single parent to the children. He stated that his difficulties in
relationships caused him stress, which was worsened by him not being paid his
salary. He says these circumstances led him to abuse alcohol.
[3] As far as the rapes are concerned he set out the circumstances leading up to
the incidents . He stated that on 1 September 2023 the children were watching
television and after they went to bed, he started writing a suicide note and made a
noose with a cloth. Before he could place the noose around his neck he was
interrupted by L, when she went to the bathroom. He took her to her bedroom where
interrupted by L, when she went to the bathroom. He took her to her bedroom where
he unsuccessfully attempted to put his penis in her vagina. This, he says, caused his
1 42 of 2013.
2 105 of 1997.
3 51 of 1977.
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foreskin distress. He then proceeded to insert his finger into her vagina. On 21
September 2023 he was sleeping with K in the same bed when he rape d him. The
children informed their grandmother, Ms. M[...], of the incidents the following day and
she subsequently notified the police which resulted in his arrest.
[4] The personal circumstances of the appellant, that were provided to the court
were that he was 35 years old and unmarried, he has three children (the two who
were the victims of these rapes and a three -year-old with a previous girlfriend), he
completed grade 9 at school, he has several security certificates and was employed
as a security officer.
[5] It was submitted that, for sentencing purposes, the Court should also consider
the fact that the appellant pleaded guilty and spent twelve months in custody
awaiting trial. As exceptional circumstances, the argument was that the Court should
consider that he suffered from stress, wanted to commit suicide, was under the
influence of alcohol and can be rehabilitated.
[6] Our courts have explained that even though a life sentence is a minimum
sentence it should not be imposed if it is disproportionate to the facts and the court
should take into consideration that it is the ultimate sentence.4 We were referred to S
v MN5 where on appeal the sentence of life imprisonment for the rape of a 10 year
old was reduced to 15 years.
[7] We were additionally referred to S v MM ; S v JS ; S v JV6, in which the Full
Court reduced the life sentences handed down by the Regional Court. In S v MM the
appellant raped his 12 -year-old stepdaughter and on appeal the sentence was
reduced to 12 years imprisonment. In this case the accused was found guilty of one
offence of rape. The accused’s attention was in that case not drawn to the fact that
s51 of the CPA would find application.7
[8] In S v JS the appellant was convicted of raping a 4-year-old girl. The appellant
[8] In S v JS the appellant was convicted of raping a 4-year-old girl. The appellant
pleaded not guilty. On appeal the court held that it was not dealing with the category
of the worst kind of rape, and this should be considered in arriving at an appropriate
4 S v GN 2010 (1) SACR 93 (T), S v Vilakazi 2009 (1) SACR 552 (SCA) at p. 554 f - g
5 2011 (1) SACR 286 (ECG).
6 2011(1) SACR 510(GNP).
7 Id. Paras 7-9.
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sentence. The rape did not cause the complainant serious injury, and it was
impossible to say what the psychological effects will be as the full nature and extent
were not investigated at the trial. The sentence of life imprisonment was set aside,
and a sentence of 12 years’ imprisonment was imposed on appeal.
[9] In S v JV , the appellant was convicted of two counts of rape of his own
daughters. Upon appeal, the court determined that - considering all relevant factors -
it could not conclude this was among the most severe instances of rape. The two
sentences of life imprisonment were set aside and replaced with two sentences of 15
years’ imprisonment, which were ordered to be served concurrently. In this matter,
the Full Court determined that the accused demonstrated insufficient insight and
comprehension regarding his actions, including the unlawfulness thereof and the
reasons why society deems such conduct unacceptable. He was supported in his
actions by his wife and probably other members of his family. This the Full Court
explained must have played a part in the commission of the crimes.
[10] Sentencing varies with each case and is not governed by a universal
standard, so the Full Court's decision does not serve as binding authority to depart
from the sentence of life imprisonment for all cases involving the rape of minors. The
Court is required to consider all the facts of the case before it.
[11] The point of departure when dealing with rape should be as was stated in S v
Chapman8 where the SCA ex plained that rape is a very serious offence and
constitutes a humiliating, degrading and brutal invasion of the privacy, the dignity
and the person of the victim. This is even more true when we deal with the rape of a
minor. In Director of Public Prosecutions v Thabethe,9 the SCA held:
“…Rape of women and young children has become cancerous in our society. It is a
crime which threatens the very foundation of our nascent democracy which is
crime which threatens the very foundation of our nascent democracy which is
founded on protection and promotion of the values of human dignity, equality and the
advancement of human right and freedoms. It is such a serious crime that it evokes
strong feelings of revulsion and outrage amongst all right -thinking and self-respecting
8 1997 (2) SACR 3 (SCA).
9 [2011] ZASCA 186, 2011 (2) SACR 567 (SCA) at 577G–I [also reported at [2011] JOL 27881 (SCA) – Ed].
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members of society. Our courts have an obligation in imposing sentences for such a
crime, particularly where it involves young, innocent, defenceless and vulnerable
girls, to impose the kind of sentences which reflect the natural outrage and revulsion
felt by law-abiding members of society. A failure to do so would regrettably have the
effect of eroding the public confidence in the criminal justice system…"10
[12] In S v Malgas11 the SCA explained how the application of minimum sentences
should be approached:
“… whatever nuances of meaning may lurk in those words, their central thrust seems
obvious. The specified sentences were not to be 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…”12
[13] Our courts are required to approach sentencing with the understanding that
the prescribed sentence is ordinarily appropriate and should not be departed from
lightly.
[14] While factors such as being a first offender, expressing remorse, or having a
clean criminal record may be presented as mitigating, they must be weighed against
the gravity of the offence. In cases involving the rape of minors, these factors are
often insufficient to constitute substantial and compelling circumstances. Section
51(3)(aA)13 of the Criminal Law Amendment Act establishes clear boundaries for
what may not be considered as substantial and compelling circumstances, ensuring
that minimum sentences are applied consistently for serious offences. By excluding
personal circumstances, the nature of the offence, and victim -related factors, the
provision reinforces the principle of proportionality and the deterrent effect of
provision reinforces the principle of proportionality and the deterrent effect of
sentencing. This framework ensures that deviations from prescribed sentences are
10 Id par 22.
11 2001(1)SACR 469(SCA).
12 Par 9.
13 105 of 1997. It reads as follows: (aA) 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 person and the complainant prior to the offence being committed.
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reserved for truly exceptional cases. The legislature pertinently excluded the
absence of physical injury as a circumstance that will constitute compelling
circumstances justifying the imposition of a lesser sentence.
[15] In recent years our courts, probably because of the persistence of the
occurrence of the rape of minors, seemed to be more reluctant to deviate from the
prescribed minimum sentence of life imprisonment where children are involved. In S
v DL 14, the court emphasised that the prescribed sentence should not be departed
from unless the cumulative impact of mitigating factors renders the sentence
disproportionate to the crime, the criminal, and societal needs. The court found no
substantial and compelling circumstances and imposed life imprisonment. In S v
Pepping15, the court reiterated the importance of balancing the offender’s personal
circumstances, the nature of the offence, and societal interests is by now an
established principle . The absence of substantial and compelling circumstances
resulted in the imposition of life imprisonment.
[16] A court on appeal will not interfere with a sentence unless it is established that
the trial court’s discretion was exercised improperly or unreasonably or where the
sentence imposes a sense of shock. 16 Rape is not only a very serious offence, but it
is endemic in our society. In this instance the appellant raped his two children whom
he should have protected from harm. What is even more concerning is that after he
raped L on 1 September, he proceeded to rape K on 21 September, some 20 days
later. He had ample time to reflect on his conduct yet he did not. If the children did
not report it and the grandmother did not take immediate action , this behaviour may
have gone unpunished. It is doubtful that he is a good candidate for rehabilitation , or
that he had actual remorse.
[17] The circumstances that allegedly led to the rape, namely the loss of his job
[17] The circumstances that allegedly led to the rape, namely the loss of his job
and his girlfriend cannot by any stretch of the imagination be regarded as
exceptional circumstances that would allow a deviation from the prescribed minimum
sentence. Although reliance is placed on the abuse of alcohol as an explanation for
his conduct, there is nothing in his statement to indicate that such alleged abuse led
14 [2015] JOL 34912 (ECG)See also Nkosi v S, [2025] JOL 69889 (KZP)
15 S v Pepping, [2023] JOL 57822 (ECM) where the appellant raped a six year old girl
16 Hewitt v S [2016] ZASCA 100; 2017 (1) SACR 309 (SCA) para [8].S v Pieters 1987 (3) SA 717(A), S v Lowis
1997 (1) SACR 235(T) at 240, Sv Rabie 1975(4) SA 855 A.
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to the rapes or impacted on his ability to make rational decisions. To the contrary the
facts set out in the s112 statement make it clear that he was always aware of what
he was doing and chose to proceed with his actions regardless.
[18] A perusal of the judgment on sentencing reveals that the learned magistrate
considered all the circumstances surrounding this case. He considered the personal
circumstances of the appellant, but also the trauma that the children went through
and the scars they will carry because of these incidents and the interests of society.
Considering all the facts, the appeal should not succeed. We were however
requested to backdate the sentence to 4 October 2024, which is appropriate
regardless of the outcome of the appeal.
ORDER:
1. The appeal is dismissed but the sentence is backdated to 4 October 2024.
____________________________
R TOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree
____________________________
D MAKHOBA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on CaseLines. The
date for hand-down is deemed to be ____ April 2026.
APPEARANCES:
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For the Appellant : Mr MB Kgagara
Instructed by : Legal Aid
For the Respondent : Adv MJ Nethononda
Instructed by : Director of Public Prosecutions
Matter heard on : 12 March 2026
Judgment date : __ April 2026