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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
CASE NO: A61/24
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 01 July 2026
SIGNATURE
In the matter between:
G[...] M[...] APPELLANT
vs
THE STATE RESPONDENT
This judgment was delivered by uploading to CaseLines on 01 July 2026.
CORAM: RATSHIBVUMO AJP et VENTER AJ
ORDER
1. Condonation for the late filing of the appeal is granted.
2. The appeal against the conviction and sentence is dismissed.
JUDGMENT
2
VENTER AJ
Introduction
[1] This is an appeal which emanates from the conviction and sentence of the
appellant by the Regional Court for the Regional Division of Mpumalanga on a
charge of rape of a 7 -year-old girl (FD). According to the charge sheet, this
incident occurred during February 2018 at FD’s home in Motlatse Trust. The
boyfriend of FD’s mother, the appellant, was identified as the perpetrator.
[2] The appellant was convicted in the Regional Court held in Mhala (the court a quo)
on 02 March 2020 on a single count of rape, in contravention of section 3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
(SORMA). He was sentenced to ‘life imprisonment’ as provided in section 51(1)
and Part I Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the
CLAA) on 07 July 2020.
[3] In terms of section 309(1) of the Criminal Procedure Act 51 of 1977 (the CPA),
once the regional court imposes a sentence of life, the appellant is entitled to an
automatic right of appeal to a full bench of the High Court.
[4] Additionally, the appellant seeks condonation for the late filing of the appeal.
Condonation
[5] From the papers it appears that the court a quo condoned the late filing of the
‘Notice of Appeal’ in compliance with section 309(2) of the CPA.
[6] The appellant submitted an affidavit in support of his condonation application, in
which the grounds are set as follows:
(a) Immediately upon being sentenced, he instructed his then attorney to
pursue an appeal. The attorney let him down by failing to file a notice with the
clerk of the court and failed to request transcripts of the proceedings. The
3
notice of appeal was only filed on 04 August 2024. He has not had contact with
that attorney since.
(b) The appellant then consulted a paralegal during February 2025 in prison
who assisted him to complete a Legal Aid application form. In September 2025,
he was visited by Mr Kekana from Legal Aid South Africa, who informed him
that he had been instructed to pursue his appeal. Another notice of appeal was
filed with the Registrar of this Court on 16 March 2026.
(c) Although the appeal is late by 5 years and 5 months, he says he did not
personally have any part in delaying its prosecution.
(d) He submits that his appeal has reasonable prospects of success.
[7] The Constitutional Court has, in the past, taken a dim view of parties disregarding
Court Rules and generally required a reasonable explanation for any delay before
condonation can be granted. In Grootboom v National Prosecuting Authority 1, the
Constitutional Court held at paragraph 23:
“It is now trite that condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it to the court’s indulgence. It must
show sufficient cause. This requires a party to give a full explanation of the non -
compliance with the rules or the court’s directions. Of great significance, the
explanation must be reasonable enough to excuse the default.”
[8] In Ndlovu v The State2, the court went on to state:
“However, the sufficiency of the explanation given for the delay is not wholly
determinative of whether condonation should be granted. The pertinent question to
consider is whether it would be in the interests of justice for condonation to be
granted.”
[9] In Brummer v Gorfil Brothers Investments3, the Constitutional Court explained:
“The interests of justice must be determined by reference to all relevant factors,
including the nature of the relief sought, the extent and cause of the delay, the
nature and cause of any other defect in respect of which condonation is sought, the
nature and cause of any other defect in respect of which condonation is sought, the
1 [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC) para 23
2 [2017] ZACC 19 para 32
3 [2000] ZACC 3 para 3
4
effect on the administration of justice, prejudice and the reasonableness of the
applicant’s explanation for the delay or defect.”
[10] The principles governing the considerations to be taken into account in granting
an application for condonation are clear. Condonation is not a formality or simply
there for the taking. A good cause must be shown for the applicant's failure to act
timeously in prosecuting the appeal. To establish such a cause, the applicant must
address the court on : the reasons for late filing, period out of time, the efforts
made to file as soon as possible , albeit late, the seriousness of the matter, the
interests of justice, and any prejudice suffered and the prospects of success in the
consideration of the appeal. Even if the reasons for late filing are unsatisfactory on
their own, convincing prospects of success on appeal could favour the granting of
condonation.
[11] The court cannot blind itself to the difficult situation the incarcerated person s find
themselves in, having restricted communication with family and only limited
visitation interactions. They have difficulty engaging with legal representatives and
have limited time for consultation . They are totally dependent on their legal
representatives to ensure compliance with the enrolment of their appeal matters.
Obtaining transcripts , on the other hand, often causes considerable delays. It
cannot be denied that the current matter is serious in nature and has severe
consequences for the appellant.
[12] It is t herefore not surprising that the courts often favour granting condonation for
late filing of appeal matters. Under the circumstances, condonation for late filing of
the appeal is granted.
Grounds of appeal
[13] The appellant contends that the court a quo erred and misdirected itself as
follows:
Ad Conviction:
a) Allowing inadmissible/hearsay evidence was at issue when the J88 medical
report was accepted, even though the author of the J88 did not testify in
5
court. The content of the J88 was also said to be contradictory, unreliable
and to contain multiple errors.
b) In finding that the victim was raped on more than one occasion, since there
was only a single charge;
c) In not considering contradictions in the evidence of the complainant to that
of her sister.
d) In evaluating the evidence implicating the appellant in isolation and not
examining probabilities on both sides when concluding to accept evidence
presented by the state over that of the appellant.
Ad Sentence:
(a) The court a quo misdirected itself in finding that the appellant's personal
circumstances were not exceptional. This is not a requirement within the Act or
from case law to qualify as substantial or compelling. The permanent physical
disability of the appellant was not given due weight.
(b) The court imposed life imprisonment, partially influenced by the conclusion that
the victim was previously raped by the appellant.
[14] The respondent filed no opposing papers despite having received notice of the
appeal on 17 March 2026.4 It is unclear as to why the prosecution did not respond
to this appeal.
[15] This Court decided to exercise its discretion by disposing of the appeal without
hearing oral argument, in terms of s19(a) of the Superior Courts Act, 2013 (Act 10
of 2013).5
Background
[16] The salient facts are as follows. Both the complainant and her younger sister
testified through an intermediary and the CCTV system 6 some two years after the
4 See the date stamp by the office of the Director of Public Prosecutions – Mpumalanga, on the Notice
of Appeal.
5 s19 (Act 10 of 2013): Powers of court on hearing of appeals. ‘The Supreme Court of Appeal or a
Division exercising appeal jurisdiction may, in addition to any power as may specifically be provided for
in any other law—
(a) dispose of an appeal without the hearing of oral argument;
6
incident. The victim was seven years old at the time of the incident. She and her
sister, then aged five, came home after school one afternoon . The complainant
changed into a T-shirt, a skirt, and a pair of panties . She took a blanket and made
a bed on the floor where she then slept. She was woken up by the appellant,
whom she considered her stepfather. He had just come back from his brother’s
place at the time. He undressed her panties, took off his trousers and took out his
penis and inserted it into her vagina. She felt pain. The appellant gave her little
sister money and instructed her to stand by the door to watch for their mother .
When he finished, she saw blood coming from her vagina.
[17] FD's five-year-old sister (ST) testified that the appellant was at home when FD
changed clothes and went to lie on the floor. Using the anatomically correct dolls
in the intermediary room, she demonstrated to the court how the appellant took off
FD’s clothing and took out his private part. He lay on top of her and inserted his
private part into her front private part, making up-and-down movements.
[18] She further testified that w hen their mother, Ms CN, came back from work, she
told her what had happened , saying the complainant was in pain . She also
mentioned that the appellant gave her (ST) money and instructed her to be a
lookout and not to disclose what she observed . Ms CN then confronted FD, who
confirmed the report. She then inspected FD and noticed blood both on her
genitals and in the basin into which she urinated. She also observed ‘sticky things’
on her vagina, which was stretched . She then confronted the appellant , who
denied the allegations. Ms CN then summoned the appellant's brother. The
appellant’s brother also confronted him, and he again denied the accusations. The
appellant's brother asked Ms CN not to report the incident to the police because
he was the one providing for the family. Ms CN did not report the matter to the
he was the one providing for the family. Ms CN did not report the matter to the
police or take the child for any treatment . She, however, reported the incident to
TM.
[19] Ms MM, who raised Ms CN as her own daughter, testified that she received a call
from her daughter KM about the incident. Because she was working away from
6 The court a quo did this in accordance with the provisions of sections 170A and 158 of the CPA.
7
home, she was only able to return home about three to four d ays later. She was
annoyed that Ms CN had not taken FD to the doctor. She also reprimanded her for
not informing the biological father of the child about the incident. Ms CN’s excuse
was that she did not have airtime. Together with other females in the community,
Ms MM inspected FD’s genitals and saw blood on the panty and some sticky
substance on the vagina. FD also urinated frequently. She then took her to the
police, who took them to the clinic.
[20] Ms MM’s daughter, KM, testified about an incident of 12 February 2018, when she
met FD in the morning, returning home from school. FD walked with her legs
spread apart as if she were in pain. After dropping her own child at the crèche,
she went to her to enquire what the matter was . FD made a report to her. KM
reported to her mother , Ms MM, that Ms CN’s daughter was raped. There is a
dispute about the date she made this report to her mother, but nothing much
comes of it.
[21] The court a quo admitted the J88 medical examination report and relied on its
contents, which were presented through the viva voce evidence of Dr Moagi. He
was not the medical practitioner who examined the patient or the author of the
J88. Dr Moagi interpreted the content of the J88 and provided his expert opinion
based thereupon. He testified that it is not normal for a 7 -year-old girl to bleed
from her vagina (par 20 of the J88). Girls only start menstruation at the age of 13 -
14 years old.
[22] The appellant denie d the allegations of rape. He testified that Ms CN and her
children fabricated these allegations against him because they disapprove of his
relationship with her. Ms MM schooled the two young kids into accusing him of
raping FD. According to him, Ms MM and others caused the injury to FD’s genitals
to give credence to the accusations.
[23] Turning to the sentence. The State and the defence , by mutual agreement,
[23] Turning to the sentence. The State and the defence , by mutual agreement,
submitted the pre-sentence and victim impact reports, both compiled by social
workers. Both the State and the defence addressed the court from the bar and
presented no viva voce evidence relating to the sentence.
8
Ad Conviction.
[24] Section 309(3) of the CPA provides:
‘The Provincial or Local Division concerned shall thereupon have the powers referred
to in section 304 (2), and, unless the appeal is based solely upon a question of law,
the Provincial or Local Division shall, in addition to such powers, have the power to
increase any sentence imposed upon the appellant or to impose any other form of
sentence in lieu of or in addition to such sentence: Provided that, notwithstanding that
the provincial or local division is of the opinion that any point raised might be decided
in favour of the appellant, no conviction or sentence shall be reversed or altered by
reason of any irregularity or defect in the record or proceedings, unless it appears to
such Division that a failure of justice has in fact resulted from such irregularity or
defect.’
[25] Section 304(2)(a) provides:
‘If, upon considering the said proceedings, it appears to the judge that the proceedings
are not in accordance with justice or that doubt exists whether the proceedings are in
accordance with justice, he shall obtain from the judicial officer who presided at the trial
a statement setting forth his reasons for convicting the accused and for the sentence
imposed, and shall thereupon lay the record of the proceedings and the said statement
before the court of the provincial or local division having jurisdiction for consideration by
that court as a court of appeal: Provided that where the judge concerned is of the
opinion that the conviction or sentence imposed is clearly not in accordance with justice
and that the person convicted may be prejudiced if the record of the proceedings is not
forthwith placed before the Provincial or Local Division having jurisdiction, the judge may
lay the record of the proceedings before that court without obtaining the statement of the
judicial officer who presided at the trial.’
[26] It is trite that in criminal proceedings the State bears the burden of proof to
[26] It is trite that in criminal proceedings the State bears the burden of proof to
establish the guilt of the accused beyond reasonable doubt. There is no reverse
onus on the accused, and he will be entitled to a discharge if he presents an
exculpatory explanation, which is reasonably possibly true in the holistic
consideration of facts.
9
[27] This principle in law has been succinctly and elegantly stated by Nugent JA in S v
Mbuli7 as follows:
It is trite that the State bears the onus of establishing the guilt of the appellant beyond
reasonable doubt, and the converse is that he is entitled to be acquitted if there is a
reasonable possibility that he might be innocent ( R v Difford 1937 AD 370 at 373, 383).
In S v Van der Meyden 1999 (2) SA 79 (W), which was adopted and affirmed by this
Court in S v Van Aswegen 2001 (2) SACR 97 (SCA) , I had occasion to reiterate that in
whichever form the test is applied it must be satisfied upon a consideration of all the
evidence. Just as a court does not look at the evidence implicating the accused in
isolation to determine whether there is proof beyond reasonable doubt, so too does it
not look at the exculpatory evidence in isolation to determine whether it is reasonably
possible that it might be true.
[28] It is imperative that the court , in assessing the evidence , consider all evidence
holistically to determine whether the guilt of the accused is proved beyond a
reasonable doubt. This does not mean that breaking down the evidence into its
component parts is not a useful aid to a proper evaluation and understanding
thereof. In S v Shilakwe 8, the Supreme Court of Appeal approved of the following
dictum:
“But in doing so, (breaking down the evidence in its component parts) one must guard
against a tendency to focus too intently upon the separate and individual part of what is,
after all, a mosaic of proof. Doubts about one aspect of the evidence led in the trial may
arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is
evaluated again together with all the other available evidence. That is not to say that a
broad and indulgent approach is appropriate when evaluating evidence. Far from it.
There is no substitute for a detailed and critical examination of each and every
There is no substitute for a detailed and critical examination of each and every
component in a body of evidence. But, once that has been done, it is necessary to step
back a pace and consider the mosaic as a whole. If that is not done, one may fail to see
the wood from the trees.”
[29] The quote from the judgment of Malan JA in R v Mlambo9 is also apposite:
7 2003 (1) SACR 97 (SCA) at para 57.
8 2012 (1) SACR 16 (SCA) at para 11.
9 1957 (4) 727 (AD) at 738 A-B
10
‘In my opinion, there is no obligation upon the Crown to close every avenue of escape
which may be said to be open to an accused. It is sufficient for the Crown to produce
evidence by means of which such a high degree of probability is raised that the ordinary
reasonable man, after mature consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime charged. He must, in other
words, be morally certain of the guilt of the accused. An accused’s claim to the benefit of
doubt when it may be said to exist must not be derived from speculation but must rest
upon reasonable inference s which are not in conflict with, or outweighed by, the proved
facts of the case.’
[30] It is settled that a court of appeal is bound by the factual findings of the trial court,
especially where those findings depend on the credibility of the witnesses who
testified. It is only in circumstances where it is clear that the court a quo
misdirected itself or was clearly wrong that a court of appeal is duty-bound to
interfere and re-evaluate the facts.10
Hearsay evidence.
[31] The appellant contends , as a ground of appeal and the main bone of contention,
that the court a quo admitted hearsay evidence in the form of the J88 medical
report.11
[32] During the trial, the State referred to Maemu v S ,12 which, it claimed, permits a
doctor to read into the record the contents of a J88 compiled by another. The
effect thereof would be that the content of the J88 would then become admissible
evidence. It appears this argument convinced the court to accept the J88 as
evidence.13
10 In S v Hadebe, 1997 (2) SACR 641 (SCA) at 645 e - f the court re-emphasised the following
principles applicable to appeals:
"Before considering these submissions it would be as well to recall yet again that there are well-
established principles governing the hearing of appeals against findings of fact. In short, in the absence
of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be
correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The
reasons why this deference is shown by appellate Courts to factual findings of the trial court are so well
known that restatement is unnecessary".
11 Case line Vol 3 076-173 line 2-13.
12 147/11) [2011] ZASCA 175 (29 September 2011).
13 Case line 076-235 line 5-8 and 20-22; 076-249 line 3; 076-235 line 9; 076-239 line 8.
11
[33] On reading Maemu, the SCA did not make any pronouncement on the
admissibility of the J88 evidence. It did, however, note that the content was
inconclusive regarding penetration, which implies the SCA considered it . The SCA
also indicated that the doctor testifying could not confirm whether the ‘cleft’ injury
noted in the report was fresh, most likely because he was not the one who
examined the patient. There were a number of other shortcomings in the state’s
case, which led to the setting aside of that conviction. In my view , the State's
assumption that Maemu serves as authority for the inclusion of a J88 content read
into the record by a different doctor, simply because this practice was not criticised
by the SCA, is misleading and far-reaching. The reference to Maemu was simply a
matter of convenience, but the principle he sought to extract from that case was
misinterpreted.
[34] It is common cause that Dr Moagi did not personally examine the patient and was
not the author of the J88. There were no issues raised regarding his credibility.
The issue was rather taken in respect of the recorded content of the J88 because
there was a correction made in par 10 ‘posterior fourchette’. The word ‘mild
bleeding’ was deleted and indicated ‘error’. The defence pointed out further
concerns with the recordings of the J88 content , which they argue are confusing
and indicative of errors . The further contention was that Dr Moagi could not
confirm the accuracy of his colleague's recordings and observations ; therefore,
the content amounted to hearsay.
[35] In terms of s 3(4) of the Law of Evidence Amendment Act, 1988 (Act 45 of 1988)
‘hearsay evidence means’:
“evidence, whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence”.
[36] To properly introduce the document into evidence , the state needed to call the
[36] To properly introduce the document into evidence , the state needed to call the
author to testify to the originality, authenticity and the truth of the content thereof.
The failure to call the author leaves this document in a state of unconfirmed
hearsay. The other options available were that the parties may submit the
document by mutual agreement as an exception to the hearsay rule with reference
to section 3(1)(a) of the Law of Evidence Amendment Act, 1988 (Act 45 of 1988).
12
The State could have launched a substantial application to include hearsay
evidence under that section. None of the latter two options was employed. There
was no adjudication by the court a quo of section 3 of Act 45 of 1988 to admit it, in
the interests of justice.14
[37] Because the author of the J88 was never called and subjected to cross-
examination, its veracity cannot be authenticated, which bears directly on the
evidential weight the court may attach to it. Dr Moagi may interpret the
observations and findings recorded in the document, but only on the assumption
that they were accurately recorded. He could not confirm their accuracy. Without
such, the content of the J88 became irrelevant , and there is was no need for the
court a quo to discuss it any further. For this reason, it is not necessary to
evaluate other concerns raised by the appellant in respect of the errors contained
in the J88.15
[38] In Fortuin and Another v S 16 the court of appeal was seized of a very similar
situation in which a different doctor to the one who compiled the J88 report was
called to testify. Saldanha J held as follows:
“I should point out that the evidence of the J88 report was, in my view, not properly
considered by the court a quo as hearsay evidence which it was both in fact and in law.
Neither the State nor the regional magistrate , and most of all the defence, failed to deal
with it as hearsay evidence in terms of the prescripts of Section 3 of the Law of
Evidence Amendment Act 45 of 1988. The State merely sought to have the J88
admitted as an exception to the best evidence rule.”
[39] Because the court a quo erred in failing to rule the J88 inadmissible hearsay,
the effect thereof is that its acceptance of the previous penetration evident from the
J88,17 that the hymen was torn, and that something had been inserted into the
14 See S v Kapa 2023 (1) SACR 583 (CC).
15 In S v Shackell (380/1999) [2001] ZASCA 72 (30 May 2001); 2001(2) SACR 185 (SCA) par 27, the
SCA held the view that the State failed to call the author of a document which was never properly
introduced as evidence. The expert evidence presented by the doctor who testified was unfounded
because it was based on an unproven document that should have been disregarded.
16 (A17/2024) [2024] ZAWCHC 136 (5 September 2024) at para 52.
17 Case line 076-235 line 5-8.
13
vagina,18was based on inadmissible hearsay, which should not have been accepted.
The court a quo found supporting evidence from KM, who saw the child walking with
discomfort about a week earlier, which led it to the conclusion that there was a
previous penetration event. It needs to be emphasised that the court rejected the
report made to KM as inadmissible . A person cannot be convicted of an offence
he/she was not charged with.
[40] Although there may have been confusion regarding the date on which the
complainant was raped, the court did not conclude that there had been a second
charge of rape, as the appellant submits in his arguments. Moreover, the errors
flowing from the conclusions in the J88 and possible confusion on the dates are not
the apex consideration on which the conviction was based. Although the court a quo
admitted inadmissible evidence in the form of the J88 report , that alone does not
render the judgment unsound. The medical report was meant to corroborate evidence
largely provided by the complainant and other witnesses who observed her and
testified to what they saw . The removal of the J88 report does not remove or
negatively impact their evidence.
Evidence supporting penetration.
[41] The value of Dr Moagi's evidence lies in his expert opinion . His
qualifications, experience and expert status were not challenged. To the extent that
his opinion relates to a general approach, not linked to any specific case or those facts
in casu which are not in dispute, there is nothing wrong in attaching the necessary
weight to his expert views. For example, there was no misdirection by the trial court to
accept the general statement that it is abnormal for a girl aged seven years to bleed
from her vagina unless there was some unnatural cause. Girls typically start their
menstrual cycles at ages 13-14. The factual basis for finding that the complainant bled
through her vagina is found in the evidence of several witnesses, including the
through her vagina is found in the evidence of several witnesses, including the
complainant, her mother and Ms MM. The appellant also admitted and/or could not
dispute that there was blood in the complainant’s vagina.
18 Case line 076-239 line 8-11.
14
[42] In assessing the evidence of the witnesses, the court a quo cautioned itself
about the dangers of accepting the evidence of a child witness and of treating the
victim as a single witness, invoking a double -cautionary approach.19 The court
evaluated each witness systematically and concluded that the evidence, supported by
external corroboration and measured against the totality of the evidence, is
reconcilable with the objective facts and contains no improbabilities that would militate
against it. In Woji v Santam Insurance Co Ltd ,20 the appeal court noted factors that
courts must take into account to conclude that a child’s evidence is trustworthy,
without creating a closed list. In this regard, the court held: ‘trustworthiness . . .
depends on factors such as the child’s power of observation, his power of recollection,
and his power of narration on the specific matter to be testified. . . . his capacity of
observation will depend on whether he appears “intelligent enough to observe”.
Whether he has the capacity of recollection will depend again on whether he has
sufficient years of discretion “to remember what occurs” , while the capacity of
narration or communication raises the question whether the child has the “capacity to
understand the questions put, and to frame and express intelligent answers.” As
pointed above, the court a quo was alive to all these.
Ad Sentence:
[43] I now turn to the second part of the appeal , which lies against the sentence
of life imprisonment. It is trite that rape of a child under the age of 16 years falls within
the ambit of Part I Schedule 2 offences 21, which invokes the provisions of section
51(1) of the CLAA, which obligates the imposition of life imprisonment in case of
conviction.22
19 Case line 076-230 line 3 to 076-235 line 1.
20 1981(1) SA 1020 (A) at 1028 B-D.
21 In Part I of Schedule 2 of the CLAA, rape as contemplated in section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 is defined as;
(b) where the victim—
(i) is a person under the age of 18 years; (only relevant portions quoted)
22 Section 51(1) of the CLAA reads as follows:
section 51(1) the CLAA ‘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.’
15
[44] The legislation permits departure from the prescribed sentence only if certain
criteria are satisfied. In terms of section 51(3)(a) of the CLAA, the court is to impose
the prescribed sentence unless there are substantial and compelling circumstances
which would justify the imposition of a lesser sentence. Section 51(3)(a)(A) limits what
can be classified as substantial and compelling circumstances , specifically in rape
convictions.23
[45] The leading authority in all sentence considerations where s 51(1) and (2) of
the CLAA find application is: S v Malgas24 where the court summarised the
jurisprudence at hand and determined that:
‘par A: Section 51 has limited but not illuminated the courts’ discretion in imposing
sentence in respect of offences referred to in part I of schedule 2 (or imprisonment for
other specified periods for offences listed in other parts of Schedule 2).
par C: Unless there are, and can be seen to be, truly convincing reasons for a different
response, the crimes in question are therefore required to elicit a severe, standardised
and consistent response from the courts.
Par D: The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the efficiency of the
policy underlying the legislation and marginal differences in personal circumstances or
degrees of participation between co-offenders are to be excluded.
Par E: The legislature has however deliberately left it to the courts to decide whether
the circumstances of any particular case call for a departure from the prescribed
sentence. While the emphasis has shifted to the objective gravity of the type of crime
and the need for effective sanctions against it, this does not mean that all other
considerations are to be ignored.”
23 Section 51(3) of the CLAA reads: (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.
(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.
24 2001(1) SACR 469 (SCA) at para 29.
16
[46] It is settled law that the powers of the court of appeal to interfere in sentence
are limited. In S v Rabie25 the following was stated by Holmes JA :
“In any appeal against sentence, whether imposed by a magistrate or a Judge, the court
hearing the appeal - (a) should be guided by the principle that punishment is pre -
eminently a matter for the discretion of the trial court and; (b) should be careful not to
erode such discretion: hence the further principle that the sentence should only be
altered if the discretion has not been ‘judicially and properly exercised’. The test under
(b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly
inappropriate”.
[47] In Malgas26 the Court applied a broadened scope for the interference and
held that:
“However, even in the absence of material misdirection, an appellate court may yet be
justified in interfering with the sentence imposed by the trial court. It may do so when the
disparity between the sentence of the trial court and the sentence which the appellate
court would have imposed had it been the trial court is so marked that it can properly be
described as “shocking”, “startling” or disturbingly inappropriate”. It must be emphasised
that in the latter situation the appellate court is not at large in the sense in which it is at
large in the former. In the latter situation it may not substitute the sentence which it
thinks appropriate merely because it does not accord with the sentence imposed by the
trial court or because it prefers it to that sentence. It may do so only where the difference
is so substantial that it attracts epithets of the kind I have mentioned”.
[48] The approach adopted to an appeal against sentence has been endorsed by
the Constitutional Court in S v Bogaards27 where the following is stated:
"Ordinarily, sentence is within the discretion of the trial court. An appellate court's power
to interfere with sentence imposed by courts below is circumscribed. It can only do so
to interfere with sentence imposed by courts below is circumscribed. It can only do so
where there has been an irregularity that results in a failure of justice: the court below
misdirected itself to such an extent that its decision on sentence is vitiated; or the
sentence is so disproportionate or shocking that no reasonable court could have
imposed it. A court of appeal can also impose a different sentence when it sets aside a
conviction in relation to one charge and convicts the accused of another."
25 1975 (4) SA 855 (A) at 857 D – E.
26 Supra at 478 D-G.
27 2013 (1) SACR 1 (CC).
17
[49] In Malgas,28 Marais JA, in discussing the meaning of the phrase 'substantial
and compelling circumstances' said,
'The greater the sense of unease a court feels about the imposition of a prescribed
sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once the
court reaches the point where unease has hardened into a conviction that an injustice
will be done, that will only be because it is satisfied that the circumstances of the
particular case render the prescribed sentence unjust, or, as some might prefer to put it,
disproportionate to the crime, the criminal and the legitimate needs of society. If that is
the result of a consideration of the circumstances the court is entitled to characterise
them as substantial and compelling and such as to justify the imposition of a lesser
sentence.'
[50] The main ground s of appeal in respect of sentence submitted by the
appellant were that the court a quo had misdirected itself in finding that there was
nothing exceptional about the personal circumstances of the appellant, usurping
something exceptional as a requirement to satisfy substantial and compelling
circumstances and that the court's finding of previous penetration influenced it not to
deviate from imposing life imprisonment.
[51] I turn to the appellant's personal circumstances. It was submitted that he was
a first offender, 31 years old, unmarried , and had a nine-year-old child. He was born
with a walking disability and uses crutches to aid him in walking. As a result of this
disability, he received a disability grant from the Department of Social Development .
His child live d with the biological mother , who received a child support grant. T he
appellant financially contributed to the child's maintenance from his disability grant.
Academically, he passed grade three but was forced to leave school due to financial
hardship. He was raised by his eldest sister after they lost both their parents in short
hardship. He was raised by his eldest sister after they lost both their parents in short
succession. Regarding the crime he was convicted of, he maintained his innocence.
[52] The court a quo indeed concluded that his personal circumstances were not
exceptional. It added that his disability does not leave him incapable of fending for
himself. This must be read in conjunction with the conclusion that there is nothing that
28 Supra at para 22.
18
stands out as substantial and compelling to deviate from imposing the prescribed
sentence.
[53] In Vilakazi v S29 Nugent JA said,
‘In cases of serious crime the personal circumstances of the offender, by themselves,
will necessarily recede into the background. 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 me to be the kind of “flimsy” grounds that Malgas (supra) said should be
avoided.’
[54] The court a quo’s approach should be w eighed against the fact that the
appellant did not testify in mitigation to take the court into his confidence. During the
sentencing phase and in his interview with the probation officer , the appellant
continued to maintain his innocence. The court a quo correctly found that he showed
no remorse or penitence and took no responsibility for his actions.30
[55] Whereas it is true that the legislation requires substantial and compelling
circumstances, rather than exceptional circumstances, to deviate from the prescribed
sentences, the court a quo’s finding should be read in context. Upon reading the
analysis of the court a quo on this aspect, it is clear that the court could find no
substantial and compelling circumstances warranting a deviation from the sentence of
life imprisonment. Reading from the triad consisting of the crime, the offender and the
interests of society prescribed in Rabie supra, we are in agreement that there are no
29 [2008] 4 All SA 396 (SCA) at para 58.
30 See S v Matyityi 2011 (1) SACR 40 (SCA) at para 13 where Ponnan JA stated as follows: "There is
moreover a chasm between regret and remorse. Many accused persons might well regret their conduct
but that does not without more translate to genuine remorse. Remorse is a gnawing of the conscience
for the plight of another. Thus genuine contrition can only come from an appreciation and
acknowledgment of the extent of one's error. Whether the offender is sincerely remorseful and not
simply feeling sorry for himself at having been caught is a factual question. It is to the surrounding
actions of the accused rather than what he says in court that one should rather look. In order for the
remorse to a valid consideration, the pertinence must be sincere and the accused must take the court
fully into his or her confidence. Until and unless that happens the genuineness of the contrition alleged
to have exist cannot be determined. After all, before a court can find an accused person to be genuinely
remorseful, it needs to have an appreciation of inter alia: what motivated the accused to commit the
deed, what has since provoked his or her change of heart; and whether he has a true appreciation of
the consequences of those actions .... "
19
substantial and compelling circumstances that justify the imposition of a sentence less
than life imprisonment. There is therefore no misdirection on the part of the trial court.
[56] This court aligns itself with the views expressed by the SCA in Maila v
S31 when it said,
“Taking into account Jansen (S v Jansen 1999 (2) SACR 368 (C) at 378G -379B),
Malgas, Matyityi, Vilakazi and a plethora of judgments which follow thereafter as well as
regional and international protocols which bind South Africa to respond effectively to
gender-based violence, courts should not shy away from imposing the ultimate sentence
in appropriate circumstances, such as in this case. With the onslaught of rape on
children, destroying their lives forever, it cannot be ‘business as usual’. Courts should,
through consistent sentencing of offenders who commit gender -based violence against
women and children, not retreat when duty calls to impose appropriate sentences,
including prescribed minimum sentences. Reasons such as lack of physical injury, the
inability of the perpetrator to control his sexual urges, the complainant (a child) was
spared some of the horrors associated with oral rape, which amount to the acceptance
of the real rape myth, the accused was drunk and fell asleep after the rape, the
complainant accepted gifts (in this case, sweets) are an affront to what the victims of
gender-based violence, in particular rape, endure short and long term. And perpetuate
the abuse of women and children by courts. When the Legislature dealt some of the
misogynistic myths a blow, courts should not be seen to resuscitate them by deviating
from the prescribed sentences based on personal preferences of what is substantial and
compelling and what is not. This will curb, if not ultimately eradicate, gender -based
violence against women and children and promote what Thomas Stoddard calls a
‘culture-shifting change.”
[57] It has been said many times that rape is a serious, cruel, and heinous
[57] It has been said many times that rape is a serious, cruel, and heinous
offence. It is degrading, humiliating and a brutal invasion of a person’s most intimate
privacy.32 A girl losing the innocence of her virginity through forced intercourse by the
person she considers to be her father leaves profound and distressing emotional
scars. As her father figure , he was in an authoritative position and took advantage of
the trust position he had over her. His conduct was reprehensible , which in no doubt
called for a strong sentence.
31 (429/2022) [2023] ZASCA 3 (23 January 2023) par 59.
32 See S v Chapman 1997 (2) SACR (SCA) at 5A-D; Director of Public Prosecutions, North Gauteng v
Thabethe 2011 (2) SACR 567 (SCA) 577 G-1).
20
[58] The sexual abuse and rape perpetrated within the confines of a family unit
are notoriously underreported and frequently remain concealed. This concealment is
often exacerbated by the conduct of the family members associated with both the
perpetrator and the victim who, through influence, pressure, intimidation, or coercion,
compel or persuade the victim to suppress disclosure of the abuse and to refrain from
reporting the offences to the relevant authorities.33
[59] Having found no misdirection by the court a quo , we are satisfied that it
balanced the mitigation against the aggravation factors. There is therefore no reason
to interfere with the sentence it imposed.
Order
[60] In the result, the following order is granted:
1. Condonation for the late filing of the appeal is granted.
2. The appeal against the conviction and sentence is dismissed.
_____________________
P VENTER
ACTING JUDGE OF THE
HIGH COURT
I agree.
_____________________
TV RATSHIBVUMO
ACTING JUDGE PRESIDENT
33 See news24 article, https://www.news24.com/health24/news/public-health/rape-within-families
remains-under-reported-20150821-2.
21
FOR THE APPELLANT: ADV. M V Kekana
INSTRUCTED BY: Legal Aid Board South Africa
MBOMBELA
FOR THE RESPONDENT: NO APPEARANCE
DATE OF HEARING: 24 APRIL 2026
DATE OF JUDGMENT: 01 July 2026