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THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A68/2026
In the matter between:
Z[...] R[...] Appellant
And
THE STATE Respondent
Summary: Criminal law — Sentence — Rape of a fifteen-year-old child —
Section 51(1) of the Criminal Law Amendment Act 105 of 1997 — Life
imprisonment —Absence of physical injury not substantial and compelling
circumstances in terms of section 51(3) (a A) (ii) — Familial breach of trust —
Sentence not disproportionate or shockingly inappropriate — Appeal dismissed.
Coram: Ndita J et Yake AJ
Heard: 29 May 2026
Delivered: 29 May 2026
JUDGMENT
YAKE AJ (NDITA J) Concurring:
Introduction
[1] This is an appeal against the sentence imposed by the Regional
Magistrate, sitting in Bluedowns upon the appellant, Mr. Z[...] R[...], an adult
male who was approximately 26 years old at the time of the commission of the
offence. It is alleged that the appellant unlawfully and intentionally inserted his
penis into the vagina of the complainant, a fifteen -year-old minor, without her
consent. By so doing, the appellant contravened the provisions of Section 3 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007 (‘Act 32 of 2007’) read with the provisions of Section 51 (1) of the
Criminal Law Amendment Act 105 of 1997 (‘CLAA”), which prescribes a
minimum sentence of life imprisonment in circumstances where the
complainant is under the age of sixteen years.
[2] The incident occurred during the early hours of 24 September 2018 at the
complainant’s home in Wallacedene, Kraaifontein. At the time, the complainant
was sleeping in the same bed as her mother and the appellant. Following the
incident, the complainant reported the matter to her aunt , N[...]. Later that same
day, at 13:01, she was medically examined by Sister Bagaza, who compiled the
relevant medical report.
[3] The appellant was legally represented throughout the trial. On 28
August 2023, he tendered a plea of not guilty, and admitted that the complainant
was his stepdaughter. Prior to the commencement of the trial, the sentencing
provisions contemplated in section 51(1) of the CLAA together with the
competent verdicts envisaged in section 256 of the Criminal Procedure Act 51
of
1977 (“the CPA”), were duly explained to the appellant, who confirmed his
understanding thereof. Furthermore, an application brought in terms of section
153 of the CPA for the complainant’s evidence to be heard in camera was
granted.
[4] At the conclusion of the trial, the Regional Magistrate convicted the
appellant on 30 May 2024 on a charge of rape. Pursuant to hearing arguments
on sentence, the Regional Magistrate found no substantial and compelling
circumstances justifying a departure from the prescribed minimum sentence.
Accordingly, on 23 June 2025, she imposed a sentence of life imprisonment in
terms of section 51(1) of the CLAA. In addition, the Regional Magistrate made
the relevant ancillary orders.
[5] In terms of section 50(2)(a) of Act 32 of 2007, the Court directed that the
appellant’s particulars be entered into the National Register for Sex Offenders.
In addition, pursuant to section 103(1) of the Firearms Control Act 60 of 2000
enquiry, the appellant was declared unfit to possess a firearm.
[6] Aggrieved by the sentence imposed by the court a quo, the appellant
exercised his automatic right of appeal in terms of section 309(1)(a) of the
CPA, seeking the reversal of the sentence imposed. In his grounds of appeal, the
appellant asserted that the Regional Magistrate erred in failing to find
substantial
and compelling circumstances warranting a deviation from the prescribed
minimum sentence. Accordingly, the appellant seeks an order for this Court
setting aside the sentence imposed by the court a quo and substituting it with a
lesser sentence.
Relevant Factual Background
[7] The factual matrix leading to the appellant’s conviction is, to a large
extent,
common cause and may be succinctly summarised as follows: On the night in
question, the complainant was sleeping in the same bed as her mother and the
appellant. Her mother who drank sleeping pills due to pains in the leg was lying
in the same direction as the appellant, while she was positioned at their feet. In
the same room, her brother was sleeping in another bed together with her aunt,
situated not far from theirs.
[8] While asleep, she experienced pain in her vagina. Upon awakening, she
observed the appellant of on top of her. She immediately pushed him away,
whereupon the appellant dressed himself up and fled. At that stage, her pyjama
pants and underwear were halfway down. She stood up and went to sleep on the
couch in the kitchen.
[9] The following morning, her aunt N[...], found her crying and enquired as
to what had transpired. She disclosed the incident to her aunt, who in turn
informed another aunt of hers and her mother. When confronted by the
complainant’s mother, t he appellant denied raping her , indicating that the
complainant must have been dreaming. The complainant was thereafter taken to
hospital for medical examination, and the appellant was subsequently arrested.
[10] N[...] confirmed that, upon waking the following morning, she observed
that the complainant was sleeping on the couch in the kitchen ; a n unusual
occurrence. She further noted that the complainant’s eyes were red, and, upon
enquiring, the complainant informed her that the appellant had raped her. N[...]
immediately relayed this disclosure to her sister, and together they informed the
complainant’s mother. Upon confronting the appellant, he denied the allegation,
asserting instead that he had been overcome by an “evil spirit”. He was
thereafter arrested.
[11] The medical report commonly referred to as the J88 , compiled by Sister
Pauline Bagaza , was admitted into evidence by agreement. Sister Bagaza
examined the complainant on 24 September 2018 at 13:01 at Karl Bremer
Hospital. The history provided by the complainant was consistent with her
testimony in court and the findings recorded were consistent with vaginal
penetration by penis or blunt object. With the admission of this report, together
with the complainant’s birth certificate, the State closed its case.
[12] The appellant testified in his own defence and denied raping the
complainant. He confirmed that he and the complainant were sleeping in the
same bed. He stated that, during the course of the night, he felt someone
touching his private parts and, upon looking, realised it was the complainant. He
alleged that, being aroused, he engaged in what he described as consensual
sexual intercourse with her. He further testified that, while in the act, he realised
that his conduct was wrong and ceased. The following morning, he left for
church and was subsequently arrested. After the close of the defence case, the
court a quo was satisfied that the appellant’s guilt had been proven beyond
reasonable doubt and accordingly convicted him as charged on 30 May 2024.
[13] Since the complainant was under the age of sixteen years at the time of
the commission of the offence , 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).1
1 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
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,
The findings of the court a quo on sentence
[14] In determining sentence, the court a quo considered both aggravating and
mitigating factors. It took into account the appellant’s personal circumstances,
including the fact that he was a first offender. It further weighed the
circumstances of the offence, notably the age of the complainant, the breach of
trust arising from the familial relationship, and the broader social impact of the
crime. The court a quo concluded that, notwithstanding the appellant being a
first offender, no substantial and compelling circumstances existed warranting
departure from the prescribed minimum sentence. Accordingly, it imposed life
imprisonment in terms of the CLAA.
The grounds of appeal
[15] The appeal is founded on several grounds, which are set out in greater
detail below. The respondent opposes the appeal, contending that the court a
quo correctly sentenced the appellant. In summary the grounds of appeal, may
be articulated as follows:
a) The court a quo erred in the following respects:
(i) In considering that the version of the complainant to be compelling
and overwhelming against the appellant.
it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30
years.’
(ii) In not considering the personal circumstances in line with the crime
itself and the interest of the society so that it can impose an
appropriate sentence.
(iii) In not considering the role played by the complainant during the
incident, the fact that she did not cry for help during the incident, in
the house full of her family.
(iv) In failing to consider the evidence of the appellant holistically and
only focused on the evidence of the complainant even though her
evidence was not sound to be reasonable true.
(v) In failing to show an element of mercy.
(vi) And the sentence imposed is inappropriate and induces a sense of
shock.
Submissions by the parties
[16] At the hearing of the appeal, Ms Kunju, counsel for the appellant, made
concession that on her papers she touched on merits of the matter. She
submitted the merits are retracted and this court need not deal with them. She
contends that appellant had been in a romantic relationship with the
complainant’s mother and that no report of violent behaviour had been made
during the period he resided with them. She argued that the appellant posed no
threat of violence and inflicted no injuries upon the complainant. Counsel
further contended that the appellant ceased his conduct of his own accord upon
realising its wrongfulness. On this basis, Ms Kunju submitted that substantial
and compelling circumstances existed which warranted a deviation from the
prescribed minimum sentence.
[17] Ms Mabilietse, counsel for the State, submitted that the court a quo
correctly sentenced the appellant. She emphasised that rape cases involving
children are prevalent, as evidenced by the congested court rolls. Counsel
argued that the appellant, as the complainant’s stepfather, occupied a position of
trust and was expected to protect her. Although the complainant did not sustain
physical injuries, she suffered psychological harm. The appellant, moreover,
displayed no remorse. On this basis, Ms Mabilietse contended that the sentence
imposed by the court a quo is not shockingly inappropriate, that no justification
exists for interference by this Court, and that the appeal ought to be dismissed.
Issues for determination
[18] Against this backdrop, the central question before this Court is whether
the court a quo , in imposing the prescribed minimum sentence of life
imprisonment, exercised its discretion judicially and in accordance with
established principles.
Discussion
[19] The rape of a child under the age of sixteen is a heinous and abhorrent
crime, deserving of the utmost disdain . It has been described in S v Chapman2
as 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.
Disturbingly, cases involving familial or familiar relationships appear to be
increasing rather than diminishing. Our society has reached a point where men,
driven by unrestrained sexual desires, transgress all bounds of decency and
humanity, as we have observed in the present matter.
[20] As judicial officers, the responsibility lies with us to uproot this scourge
and to demonstrate, through the sentences we impose, the seriousness with
2 S v Chapman 1997 (3) SA 341 (SCA)
which these offences are regarded. Only then may the community begin to
regain trust in the judicial system.
[21] It is for this reason that the legislature has rightly placed the rape of a
child under sixteen within the category of offences attracting a prescribed
minimum sentence of life imprisonment, save where substantial and compelling
circumstances justify a departure. This statutory framework underscores the
gravity of the offence and the imperative of protecting the most vulnerable
members of society.
[22] Section 51(1) provides that subject to subsections (3) and (6) of the
CLAA, the court shall sentence a person it convicted of an offence referred to in
Part 1 of Schedule 2 to imprisonment for life. Part 1 of Schedule 2 (as amended)
refers to rape as contemplated in section 3 of Act 32 of 2007, where the victim
is a person under the age of 1 6. In this case the victim was fifteen years old
when she was raped.
[23] Section 51(3)(a) of the CLAA provides the court with a discretion to
deviate from the prescribed sentence of imprisonment for life if the court
is “satisfied that substantial and compelling circumstances exist which justify
the imposition of a lesser sentence than the sentence prescribed.”
[24] It is trite law that sentencing falls pre-eminently within the discretion of
the trial court. An appeal court must be slow to interfere and may only do so
where a material misdirection or irregularity has occurred , or where the
sentence imposed is so startlingly inappropriate as to induce a sense of shock. (S
v Moosajee [1999] 2 All SA 353 (A), para 8). Thus, interference is warranted
only if it appears that the trial court has exercised its discretion in an improper
or unreasonable manner. S v Gerber [1998] 4 All SA 315 (NC).
[25] The mitigating factors which were considered and rejected by the court a
quo are succinctly set out in the pre -sentence report of the Probation Officers
and the Correctional Officers' report as follows: At the time of sentence, the
appellant was 34 years of age, though he was 26 years old when the offence was
committed. He is unmarried and the father of two minor children, aged three
and seven years respectively, who reside with their mother. The appellant
successfully completed Grade 1 1 and was thereafter employed as a p acker at a
pharmacy, earning R1,200 per week. From this income, he contributed to the
maintenance of his children. He stands before court as a first offender, with no
prior convictions.
[26] The court a quo considered the above personal circumstances of the
appellant and weighed the m against the seriousness of the offence committed
and the interest of society. If found that his 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.
[27] Ms Kunju contends that the court a quo 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. As
such, the 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 shocking.
[28] Ms Kunju, with commendable candour, conceded that her criticism
regarding the complainant’s failure to cry out for help during the incident ;
despite the house being her place of safety and occupied by several family
members, was devoid of merit and wholly untenable.
[29] It is regrettable that, even in this day and age, victims of sexual offences
continue to be criticised for not behaving in a manner that accords with
preconceived expectations ; whether before, during, or after the incident. Such
criticism is misplaced and perpetuates harmful stereotypes. As Maya JA (as she
then was) eloquently observed in Monageng v The State3 that:
‘Much was made by the appellant’s counsel of the complainant’s apparent ability to act
normally after the rape and her delay in reporting it. It has been firmly established in a
number of studies on the impact of violence, including rape, against women that victims
display individualised emotional responses to the assault. 4 Some of the immediate effects are
frozen fright or cognitive dissociation, shock, numbness and disbelief. 5 It is therefore not
unusual for a victim to present a façade of normality.
[24] It is further widely accepted that there are many factors which may inhibit a rape victim
from disclosing the assault immediately. Children who have been sexually abused, especially
by a family member, often do not disclose their abuse and those who ultimately do may wait
for long periods and even until adulthood for fear of retribution, feelings of complicity,
embarrassment, guilt, shame and other social and familial consequences of
disclosure.6 Significantly, the newly passed Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 provides, in s 59 , that ‘in criminal proceedings
involving the alleged commission of a sexual offence, the court may not draw any inference
only from the length of any delay between the alleged commission of such offence and the
reporting thereof’. Raising a hue and cry and collapsing in a trembling and sobbing heap is
not the benchmark for determining whether or not a woman has been raped. There was thus
not the benchmark for determining whether or not a woman has been raped. There was thus
3 Monageng v The State3 (590/06)[2008] ZASCA 129 (01 OCTOBER 2008) para 23
4 S Bollen et al ‘Violence Against Women in Metropolitan South Africa: A study on impact and service delivery’
Institute for Security Studies (1999) Monograph No 41.
5 S Ullman & R A Knight ‘Women’s Resistance Strategies to Different Rapist Types’ (1995) 22 No 3 Criminal
Justice & Behaviour 263, 280; S Katz & M A Mazur Understanding the Rape Victim: A Synthesis of Research
Findings (1979) 172, 173. M Symonds ‘Victims of Violence: Psychological effects and after-effects’ (1975) 35
(1) American Journal of Psychoanalysis 19 - 726, 22.
6 T B Goodman-Brown et al ‘Why Children Tell: A Model of Children’s Disclosure of Sexual Abuse’ Child
Abuse & Neglect 27 (2003) 525-540.
nothing unusual about the complainant’s behaviour and her explanation for not immediately
reporting the appellant is plausible.”
[30] Applying Monageng, to the case at hand, I am in full agreement with the
findings of the court a quo . There is nothing untoward in the complainant’s
failure to cry out for help during the night. This was the first time on which she
had experienced such an assault, and she testified that she was not sexually
active prior to the incident. She further explained that her mother was ill and in
pain, and she did not wish to disturb her or awaken the rest of the household. In
these circumstances, her conduct is entirely understandable. The absence of an
outcry cannot, in law, be construed as undermining the credibility of her
evidence.
[31] The appellant was a father figure to the complainant. He was in a position
of trust and was supposed to be the one protecting her, yet he egregiously
violated that trust . With remarkable audacity, he contends that the sexual
intercourse was consensual and expect this court to accept that he permitted the
complainant, a child of tender years, to insert her hand into his private parts. If
this court were to accept such version, it would amount to an abhorrent act,
wholly inconsistent with the conduct expected of an adult in his position . A n
elderly person in the appellant's position would have rebuffed with disdain such
behaviour and immediately called the complainant to order.
[32] What is most disturbing in this matter is the conduct of the appellant. He
has shown himself to be a man devoid of respect ; not only for the complainant
and her mother, but for his own dignity as well. He did not shrink from
engaging in sexual intercourse with a child while her mother lay beside them in
the same bed. He exploited the fact that the complainant’s mother, having taken
sleeping medication, was unlikely to awaken. Such behaviour demonstrates that
the appellant is a manifest danger to children and to society at large. It is
the appellant is a manifest danger to children and to society at large. It is
incumbent upon the courts to protect our children, who are the future of this
country. The only effective means of doing so is to ensure that the provisions of
section 51(1) of the CLAA are given full effect, thereby removing from society
those who pose a threat to its most vulnerable members.
[33] I am mindful of the a ppellant's personal circumstances. However, I hold
the view that the sentence imposed by the court a quo is unimpeachable. In S v
Vilakazi 2009 (1) SACR 552 (SCA) para 58, the Supreme Court of Appeal held
that in cases of serious crime, the personal circumstances of the offender, by
themselves, will necessarily recede into the background. The court held that
once it becomes clear that the crime is deserving of a substantial period of
imprisonment, the questions whether the accused is married or single, whether
he has two children or three, whether or not he is in employment, are in
themselves largely immaterial to what that period should be, and those seem to
be the kind of 'flimsy' grounds that S v Malgas 2001 (1) SACR 469 (SCA) said
should be avoided. But they are nonetheless relevant in another respect.
[34] I have noted the submissions advanced on behalf of the appellant, that
there was no history of violent behaviour during his relationship with the
complainant’s mother, and that no threats of violence were made nor physical
injuries inflicted. There is, however, nothing commendable in the mere absence
of violence or injury. That is the baseline of lawful conduct, not a mitigating
factor. Section 51(3) (aA) (ii) makes it clear that the absence of injuries cannot
reduce the gravity of rape.
[35] The complainant may not bear visible scars, but the emotional and
psychological trauma inflicted upon her is profound. The appellant raped an
innocent, defenceless child, stripping her of her innocence and childhood. She
now carries lifelong invisible scars and through no fault of her own, her life will
forever be tainted by the appellant’s actions.
[36] The appellant has displayed no remorse. Instead, he sought to minimise
his conduct by shifting blame onto the child, accusing her of being the
instigator. Such an attitude aggravates rather than mitigates. In these
circumstances, the appellant deserves nothing less than the severe sentence
imposed.
[37] Applying the well -established triad of S v Zinn7 principles; namely: the
crime, the offender, and the interests of society ; I am unable to discern any
misdirection in the sentence imposed by the court a quo. I must emphasise that
the appellant stands convicted of the rape of a vulnerable 15 -year-old child, an
offence which attracts the prescribed sentence of life imprisonment unless there
were substantial and compelling circumstances warranting a deviation from it .
None were present. On the contrary, the aggravating factors; its predatory
nature, the youth and helplessness of the complainant, and the breach of trust
inherent in the relationship; militate strongly against any deviation.
[38] In S v Malgas8 the court held:
‘If, after considering all the relevant factors, the court has not merely a sense of unease but a
conviction that injustice will be done if the prescribed sentence is imposed or (to put it
differently) that the prescribed sentence would be disproportionate to the crime, the criminal
and the legitimate needs of society, there will be substantial and compelling circumstances
requiring the court to depart from the prescribed sentence and to impose a lesser sentence.’
[39] In the result, and having regard to all the considerations canvassed above,
this Court is satisfied that no basis exists for interference with the sentence
imposed by the court a quo. The appeal against sentence is accordingly
dismissed.
7 S v Zinn 1969 (2) SA 537 (A) 540 G-H
8 S v Malgas 2001 (1) SACR 469 (SCA); CC para 20
Order
[40] In the result, the following order is granted.
[40.1] The appeal sentence is hereby dismissed.
_________________________________
S. YAKE
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered:
________________________________
T. NDITA
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Appellant: Advocate N. Kunju
Cape Town Justice Centre
Legal Aid South Africa
Counsel for the Respondent: Advocate N. Mabilietse
Office of Director of Public Prosecutions
Western Cape