IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
(CIRCUIT COURT HELD AT KOMANI)
NOT REPORTABLE
Case no: CC16/2026
In the matter between:
THE STATE
and
SIPHUMEZE SPIRES Accused
___________________________________________________________________
JUDGMENT ON SENTENCE
___________________________________________________________________
Govindjee J
Background
[1] Mr Spires was convicted of a charge of rape. He unlawfully and intentionally
committed an act of sexual penetration with an eleven -year-old female complainant
by inserting his penis into her vagina without her consent during March 2025.
[2] Given the age of the complainant, the offence falls within Part I of Schedule 2
of the Criminal Law Amendment Act, 1997, 1 attracting a minimum sentence of life
imprisonment unless substantial and compelling circumstances exist to justify the
imposition of a lesser sentence.
[3] It is useful to reiterate established sentencing principles, which I extract from
this court’s judgment in Botha.2 Section 276 of the Criminal Procedure Act, 19773
provides for the sentences which courts can impose. The imposition of sentence is
pre-eminently a matter for the discretion of the trial court, which is free to impose
whatever sentence it deems appropriate provided it exercises its discretion
judicially and properly. The general purpose of imposing a sentence is fourfold:
retributive, preventative, rehabilitative (reformative) and to act as a general
deterrent.4 While the retributive aspect tends to dominate, courts are enjoined to
temper the punishment with a measure of mercy.5
[4] The sentencing court must attempt to achieve a balance in its sentence, and
not approach its task in a spirit of anger, but in one of equity. Hastiness, the striving
after severity and misplaced pity are out of place, as are so -called exemplary
sentences designed to use the crime to set an example for others in society. 6 Still,
more serious cases clearly require severity, with a certain moderation of generosity,
for the appropriate balance to be struck. The object of sentencing is not to satisfy
public opinion, but to serve the public interest.7
[5] In the final analysis, the well -known triad of factors to be considered consists
of the crime, the offender and the interests of society, 8 and these factors must be
applied, in accordance with S v Malgas ,9 to consider whether substantial and
1 Act 105 of 1997 (‘the Minimum Sentences Act’).
2 S v Botha [2023] ZAECMKHC 52 paras 3–5.
3 Act 51 of 1977 (‘the CPA’).
4 S v Rabie 1975 (4) SA 855 (A).
5 Rabie at 862G-H.
6 See S v Khulu 1975 (2) SA 518 (N) 521-522.
5 Rabie at 862G-H.
6 See S v Khulu 1975 (2) SA 518 (N) 521-522.
7 S v Mhlakhaza and Another [1997] 2 All SA 185 (A) at 189. Also see S v M (Centre for Child Law as
amicus curiae) 2007 (2) SACR 539 (CC).
8 S v Zinn [1969] 3 All SA 57 (A) at 540G-H.
9 2001 (1) SACR 469 (SCA).
compelling circumstances exist to deviate from any prescribed minimum
sentence.10
Nature of the crime and surrounding circumstances
[6] The complainant was raped by Mr Spires after birthday celebrations at a
residence in Dordrecht, while she was sleeping. The complainant’s uncle, AG, was
in a relationship with the accused’s aunt, TS. The rape was painful, causing the
complainant to cry. As counsel for the State emphasised, the evidence during the
trial reflected the complainant’s immediate distress and pain: VK observed that the
complainant was crying, in pain and experiencing difficulty walking when she took
her to report the matter, and Dr Pienaar observed that the complainant was
distressed and experiencing pain and discomfort when examined on the second
day following the incident.
[7] It goes without saying that the court must consider the effect of the crime on
the victim, particularly in cases of gender -based violence. 11 The child was
extremely young at the time she was raped and forced to experience a gross
violation of her person. The impact on the rest of her life, including the abrupt
termination of her innocence as a child, is difficult to comprehend or put into words.
The SCA has endorsed academic commentary that posits that, ‘irrespective of the
presence of physical injuries or lack thereof, rape always causes its victims severe
harm’.12 That said, the court has not been furnished with a victim impact statement
or other specialist report detailing the likely future impact of the crime on the
complainant.13
10 See Radebe v The State [2019] ZAGPPHC 406 at para 12. In S v Matyityi 2011 (1) SACR 40 (SCA)
para 23, Ponnan JA held that Parliament:
‘…has ordained minimum sentences for certain specified offences. Courts are obliged to impose
those sentences unless there are truly convincing reasons for departing from them. Courts are not
free to subvert the will of the legislature by resort to vague, ill -defined concepts…and ill -founded
hypotheses that appear to fit the particular sentencing officer’s personal notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual judicial officer, [are]
foundational to the rule of law which lies at the heart of our constitutional order’.
11 See A Spies ‘The judicial relevance and impact of victim impact statements in the sentencing of
rape offenders’ (2018) SACJ 212 at 231 as cited in S v Dyonase [2020] ZAWCHC 137 para 21.
12 M v The State [2022] ZASCA 3 para 47.
13 See s 274 of the CPA. I have specifically considered whether a probation officer’s report and victim
impact statement might aid the enquiry and, having canvassed these matters with counsel, have
determined that this is unnecessary in the circumstances. Also see S v EN 2014 (1) SACR 198
(SCA); [2012] ZASCA 148 para 14.
Mr Spires’s circumstances and interests
[8] Mr Solani placed Mr Spires’s personal circumstances before court.
Significantly, he was 19 at the time of the incident and has no previous convictions.
The accused left school in grade 9. He was employed as a farm worker performing
odd jobs and earned R1000 per week, from which he contributed to the upkeep of
his two children, who are aged 1 and 3. The accused’s parents are alive, and he
resides in Dordrecht with his grandmother. There being no contestation to the
statements made from the bar by Mr Solani, the court accepted these submissions
to carry the same weight as facts presented under oath.14
The interests of society
[9] Courts have repeatedly reflected on the horrific nature of the offence of rape,
given that it constitutes a humiliating, degrading and brutal invasion of the privacy,
dignity and person of the victim. As such, it has been accepted that the crime
deserves severe punishment.15
[10] The SCA has emphasised that courts cannot ignore the reality that South
Africa is facing a pandemic of sexual violence against women and children. 16 In S v
Vilakazi,17 the SCA confirmed that rape is a repulsive crime. Society expects that
the scourge of gender -based violence must be addressed and must cease. In
addition, children’s rights are constitutionally protected, and rape of a child,
particularly one as young as eleven years of age, is by its nature one of the worst
kinds of offences imaginable.
14 S v Cele 2026 (1) SACR 445 para 11.
15 S v Chapman 1997 (2) SACR 3 (SCA) at 5B. When imposing a sentence in respect of the offence
of rape, an apparent lack of physical injury to the complainant and any relationship between the
complainant and accused prior to the offence being committed are not, on their own, considered to be
substantial and compelling circumstances justifying the imposition of a lesser sentence: section
51(3)(aA) of the Minimum Sentences Act. Radebe supra para 34. In S v Vilakazi [2008] ZASCA 87
51(3)(aA) of the Minimum Sentences Act. Radebe supra para 34. In S v Vilakazi [2008] ZASCA 87
para 54, Nugent JA noted that ‘there comes a stage at which the maximum sentence is proportionate
to an offence and the fact that the same sentence will be attracted by an even greater horror means
only that the law can offer nothing more.’
16 The Director of Public Prosecutions, Grahamstown v TM 2020 JDR 0652 (SCA) (TM) para 15.
17 2009 (1) SACR 552 (SCA) at 555h.
[11] The Minimum Sentences Act has drastically impacted upon the exercise of a
court’s discretion in imposing a sentence through the introduction of a prescribed,
albeit discretionary minimum sentence regime.18 Regrettably, that legislation seems
to have achieved little in respect of stemming the shocking number of child rape
cases that are prevalent in this Division. This court has previously acknowledged
that society’s patience, understandably, is wearing thin, and sentences imposed in
child rape cases are rightly scrutinised.
[12] Mr Spires’s conduct has been found to fall within the purview of this Act. A
court should not for ‘flimsy reasons’ and ‘speculative hypotheses favourable to the
offender’ deviate from the minimum sentence prescribed or apply their personal
notion of fairness. 19 The fact that Mr Spires is a first offender does not, on its own,
necessarily warrant a lesser sentence. The question remains whether there are
substantial and compelling reasons, on the whole, to justify a lesser sentence than
the minimum sentence prescribed.
Analysis
Substantial and compelling circumstances?
[13] This court is duty bound to consider Mr Spires’s personal circumstances, as
well as that of the young complainant. The nature of the crime must also be
considered, together with the interests of society, seasoned with a measure of
mercy and bearing in mind the various purposes of punishment, including
prevention, retribution, rehabilitation and deterrence. 20 All the circumstances of the
case must be considered to determine whether the imposition of a minimum life
sentence is proportionate to the particular offence. 21 The constitutional value of
human dignity lies at the heart of this requirement.22
[14] Life sentences are undoubtedly appropriate sentences, in general terms, to
impose upon criminals who rape children. The rape of vulnerable victims, including
young children, has always been an aggravating feature of rape. Every child is
young children, has always been an aggravating feature of rape. Every child is
18 S v September [2014] ZAECGHC 38 para 8.
19 S v PB 2011 (1) SACR 448 (SCA) para 21; Matyityi supra para 23.
20 S v Genever and Others 2008 (2) SACR 117 (C) at 122c-d.
21 Vilakazi supra para 15.
22 S v Dodo 2001 (3) SA 382 (CC) para 38.
meant to enjoy the constitutional rights to be protected from maltreatent, abuse and
degradation, to freedom and security, which includes the right to be free from all
forms of violence and to have their privacy and dignity respected and protected. 23
The effect on the complainant has already been described. In S v Zitha, Goldstein J
commented on the need to punish perpetrators of child rape as heavily and
severely as the law allowed in the absence of substantial and compelling
circumstances dictating otherwise. This court has previously noted that it will not
shirk this responsibility, however agonising it may be to do so.24
[15] It is, however, important to consider the various circumstances cumulatively,
and with specific focus on Mr Spires’s clean record and youthfulness at the time. I
note his low level of education, his lack of independence and his low level of
income. I am also cognisant that a finding of an absence of substantial and
compelling circumstances will result in the gravest of sentences being passed and
that the consequences of this are profound, effectively removing an individual from
society.25 This will also impact on the lives of his children. It has been noted
previously that this requires a meticulous weighing of all relevant factors before a
decision to impose it can be justified.26
[16] The factors relied upon by Mr Spires as substantial and compelling have been
considered in their totality. The main factors in his favour are that he is a youthful
first offender. Other factors, including that the rape was carried out seemingly
spontaneously and opportunistically on a single occasion, carry less weight when
given proper consideration. His level of education, although low, is not unusual and
there is no basis for suggesting any remorse.
[17] The fact that a prescribed sentence is considered disproportionate is itself a
basis to find that there are substantial and compelling circumstances to warrant a
basis to find that there are substantial and compelling circumstances to warrant a
departure from a prescribed sentence. 27 The question remains whether it is the
23 Ss 28(1)(d), 12(1)(c) 14 and 10 of the Constitution of the Republic of South Africa, 1996.
24 S v Zitha 1999 (2) SACR 404 (WLD) at 418h-I, as quoted in S v B [2022] ZAECGHC 12 para 18.
25 S v Bull 2001 (2) SACR 681 (SCA) para 21.
26 S v Dodo 2001 (1) SACR 301 (E).
27 See S v Weideman [2014] ZAECPEHC 62 paras 7, 14: ‘Life imprisonment is the most severe
sentence that can be imposed by a court. For this reason it is, generally speaking, reserved for the
appropriate sentence in this instance. Considering all the relevant considerations, I
consider the circumstances to be weighty enough to warrant departure from the
prescribed minimum, and hold that there is genuine prospect of Mr Spires’s
rehabilitation and his eventual reintegration into society. Consistent with this court’s
decision in Botha, and in accordance with both counsel’s submissions, it would, in
my view, be unjust and disproportionate to impose a life sentence on Mr Spires
given the totality of circumstances, in particular his clean record and age at the time
of the offence. These circumstances are entered into the record as substantial and
compelling on the facts of this case.28
An appropriate sentence
[18] The court is now enjoined to consider an appropriate sentence and must
exercise a reasoned discretion in evaluating the various relevant factors highlighted
above to arrive at a proportionate outcome. Courts have frequently acknowledged
that the task is a complex and onerous one, involving various competing
considerations. The requirement of proportionality applies equally in relation to
cases where sentences have been prescribed by legislation. 29 It cannot be ignored
that gender-based violence, including child rape, continues to devastate lives and
negatively impact upon families and communities. Sadly, many women, including
children, live in constant fear of precisely this type of occurrence. The remarks of
the court in S v Ro and Another30 are apposite:
‘The moral reprehensibility of rape and society’s abhorrence of this rampant scourge are
unquestioned. The most cursory scrutiny of our law reports bears testimony to the fact that
our courts have, rightly so, visited this offence with severe penalties. This reprehensibility
and abhorrence are so much more pronounced in the instances of the rape of very young
children, as is the case here. … [T]he complainant was an innocent, defenceless and
vulnerable victim.’
vulnerable victim.’
most serious and egregious criminal acts. It is also reserved for those instances where the criminal
poses a clear and present danger to the society and where there is little or no prospect of
rehabilitation of the criminal and reintegration of that individual into society. This does not however
mean that a court should keep something in reserve on the basis that some more serious
manifestation of the crime can be imagined. It means only that the sentence of life imprisonment
must be proportionate to the nature of crime for which it is imposed.’
28 Cf TM op cit para 12.
29 S v Fatyi 2001 (1) SACR 485 (SCA) at 488f-g.
30 S v Ro and Another 2010 (2) SACR 248 (SCA) para 15.
[19] Given the circumstances, a lengthy sentence of direct imprisonment is
unquestionably warranted. 31 But each situation is different and the nuances of the
various considerations must be weighed. In coming to a decision, I accept that Mr
Spires is a young man who committed a single, grave and despicable offence, for
which he has expressed no remorse. 32 He has never previously fallen foul of the
law. The offence he committed is by its nature extremely serious and involved
gender-based violence. The incident occurred away from the child’s home and Mr
Spires held no position of trust similar to cases which have considered this as an
aggravating feature.33 On the evidence, there was also no threat or other additional
violent conduct after the incident. That does not reduce the seriousness of the
offence, but it is relevant when considering proportionality. Regrettably, no
imposition of punishment on the offender will restore what has been taken from the
victim.
[20] Balancing the various considerations in the light of all the circumstances, I
consider a sentence of 17 years’ imprisonment to be appropriate. This is a very
lengthy sentence of direct imprisonment. It gives Mr Spires some opportunity to
rehabilitate, while punishing him heavily for his conduct and the harm he has
caused to the complainant and to society. Given the nature of the offence, various
other consequences emanating from legislation follow. These have been included
as part of the order.
[21] In terms of s 299A of the CPA, the complainant, or her parent or guardian if
present, is informed of the right, subject to the directives issued by the
Commissioner of Correctional Services, to make representations and to attend any
relevant meeting of the parole board when placement of the accused on parole,
day parole or under correctional supervision is considered.
Order
[22] The following sentence is imposed:
31 See Seedat v S [2016] ZASCA 153 para 38 et seq , on the efficacy of restorative justice as an
inappropriate sentencing option in cases involving serious offences.
32 See Weideman op cit para 13.
33 M v The State [2022] ZASCA 3 para 53.
1. The accused, Siphumeze Spires, is sentenced to 17 years’
imprisonment in respect of the conviction of rape involving an eleven -
year-old child.
2. In terms of section 50(2) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, the particulars of the
accused, as a convicted sexual offender, must be included in the
National Register for Sex Offenders.
3. In terms of section 120(4) of the Children’s Act 38 of 2005 and section
41 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007, the accused is declared to be unsuitable to
work with children, and it is directed that his particulars be entered in
Part B of the National Child Protection Register.
4. In terms of section 103(1) of the Firearms Control Act 60 of 2000, the
accused is declared unfit to possess a firearm.
_________________________
A. GOVINDJEE
JUDGE OF THE HIGH COURT
Heard : 3 June 2026
Delivered : 3 June 2026
Appearances:
Counsel for the State: Mr Mqeke
Instructed by: Director of Public Prosecutions
Makhanda
Attorney for the Accused: Mr Solani
Instructed by: Legal Aid South Africa
Makhanda