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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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
CASE NO: A183/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(1) DATE 12/6/2026
(2) SIGNATURE
In the matter between:
E[...] M[...] Appellant
and
THE STATE Respondent
JUDGMENT
VAN DER MERWE AJ
[1] The Appellant was charged with two counts of contravening section 3, read with
sections 1, 56(1), 57, 58, 59, 60 and 61 of Act 32 of 2007, arising from the rape
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of an 11-year-old child. The Appellant was convicted on both counts of rape. The
court a quo found that no substantial and compelling circumstances existed to
justify a departure from the prescribed minimum sentence and accordingly
sentenced the Appellant to life imprisonment.
[2] In terms of section 103(1)(g) of the Firearms Control Act 60 of 2000, the trial
court declared the Appellant unfit to possess a firearm. The court further made
an ancillary order in terms of section 50(2)(a) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, directing that the
Appellant’s name be entered in the National Register for Sex Offenders. In
addition, the court ordered, in terms of section 120(4) of the Children's Act 38 of
2005, that the Appellant is unsuitable to work with children.
[3] The Appellant is before this Court, exercising his automatic right of appeal in
terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977 (“the CPA”),
seeking to set aside both his conviction and the sentence imposed by the court a
quo.
[4] In his grounds of appeal, the Appellant contended that the Regional Magistrate
misdirected himself in finding that the State had discharged its onus of proving
the Appellant’s guilt beyond a reasonable doubt. He further asserted that the
cautionary rule applicable to the evidence of a single witness was not properly
applied. The Appellant also challenged the sentence imposed, contending that
the trial court erred in failing to find the existence of substantial and compelling
circumstances justifying a departure from the prescribed minimum sentence.
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[5] During argument, counsel for the Appellant properly conceded that there was no
basis upon which to challenge the Appellant’s conviction. In the circumstances,
the conviction requires no further consideration and only the sentence remains in
issue on appeal.
Ad Sentence
[6] The Appellant's grounds of appeal, and the submissions advanced on his behalf,
are directed primarily at the sentence imposed. It was contended that the trial
court erred in failing to find the existence of substantial and compelling
circumstances justifying a departure from the prescribed minimum sentence of
life imprisonment. In particular, it was submitted that the trial court failed to give
adequate consideration to the Appellant’s prospects of rehabilitation and
reformation.
[7] Counsel for the Appellant submitted that the following factors, when considered
cumulatively, constituted substantial and compelling circumstances warranting
the imposition of a lesser sentence:
7.1 The Appellant had been incarcerated for a period of 37 months awaiting
the finalisation of the trial;
7.2 The Appellant was 40 years old at the time sentence was imposed;
7.3 The Appellant was unmarried and had minor children whom he supported
financially;
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7.4 The Appellant was a first offender;
7.5 The Appellant had suffered a significant loss of standing and esteem
within both his family and the broader community;
7.6 The Appellant's formal education extended only to Grade 7; and
7.7 The Appellant was unemployed.
[8] It was further submitted on behalf of the Appellant that the complainant did not
sustain any serious or permanent physical injuries as a consequence of the
offences. Counsel argued that sentencing courts should be guided by the public
interest rather than public sentiment or expectation and that a sentence should
not exceed the bounds of what is reasonably required to serve the purposes of
punishment. On this basis, it was contended that the sentence of life
imprisonment was disproportionately severe and that the effective term of
imprisonment ought to be substantially reduced.
[9] It was submitted on behalf of the State that the court a quo had properly taken
into account the following mitigating circumstances:
9.1 The Appellant was 40 years of age;
9.2 The Appellant had parental responsibilities towards his minor children;
9.3 The Appellant discontinued his schooling due to financial constraints;
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9.4 The Appellant was employed as a bricklayer and was able to support
himself and his family;
9.5 The Appellant was a first offender; and
9.6 The Appellant had been in custody from 21 January 2022 until February
2025.
[10] The aggravating circumstances considered by the Court a quo were as follows:
10.1 The prevalence and seriousness of the offence;
10.2 Rape is a crime that gravely violates a person’s dignity, security, freedom,
and overall well-being;
10.3 Given the increasing incidence of rape, the imposition of a lengthy term of
imprisonment is warranted;
10.4 The Appellant raped the same child on two separate occasions;
10.5 The complainant held the Appellant in high regard, as he provided support
to her and her family;
10.6 The victim was 11 years old, while the Appellant was approximately 37
years of age at the time of the offences;
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10.7 The Appellant exploited the paternal relationship he had with the
complainant;
10.8 According to the victim impact report, the Appellant caused severe
trauma, leaving the complainant unable to form relationships with other
males. This harm is expected to have lasting effects into adulthood;
10.9 The Appellant was arrested only after evading the police.
[11] It was further submitted that the abuse of women and children, particularly young
girls, is pervasive in this country. In light of the aggravating circumstances, these
clearly outweigh the mitigating factors. Considering the specific facts of this
matter, the trial court cannot be said to have committed any misdirection.
[12] The court a quo found that no substantial or compelling circumstances were
present. I am unable to conclude that, in imposing a sentence of life
imprisonment, the court a quo acted disproportionately in relation to the
Appellant.
[13] The act of raping one’s girlfriend’s 11 year old daughter on two separate
occasions, is profoundly reprehensible and utterly indefensible. In S v Chapman
[1997] ZASCA 45; 1997 (2) SACR 3 (SCA) at 5b -c rape was describe in these
terms:
“Rape is a very serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity and the person of the victim. The rights to
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dignity, to privacy and the integrity of every person are basic to the ethos of the
Constitution and to any defensible civilisation.
Women in this country are entitled to the protection of these rights. They have a
legitimate claim to walk peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy the peace and tranquillity of
their homes without the fear, the apprehension and the insecurity which constantly
diminishes the quality and enjoyment of their lives.”
[14] Furthermore, in N v T 1994 (1) SA 862 (C) at 864G rape was described as:
“Rape is a horrifying crime and is a cruel and selfish act in which the aggressor
treats with utter contempt the dignity and feelings of his victims.”
[15] The gravity of the offence is compounded when such a crime is inflicted upon a
young child, and in this case, on two separate occasions. The imposition of a life
sentence is therefore not disproportionate to the seriousness of the crime. In
addressing society’s needs, the Minimum Sentences Act was enacted
specifically to confront the scourge of rape in this country. A court should not
readily depart from the minimum prescribed sentence unless substantial and
compelling circumstances are present. Society demands that these horrific
crimes be met with the prescribed minimum sentence, and the imposition of life
imprisonment accordingly serves both justice and the broader interests of
society.
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[16] It must be emphasized that the complainant was only 11 years old at the time of
the incident. She was exceptionally vulnerable and entirely defenceless. In S v D
1995 (1) SACR 259 (A) at 260G -H, the Supreme Court of Appeal noted that
children are vulnerable to abuse, and the younger they are, the more vulnerable
they are. They are usually abused by those who think they can get away with it,
and all too often do.
[17] It is trite law that sentencing falls pre -eminently within the discretion of the trial
court. An appellate court will not interfere with such discretion unless a material
misdirection or irregularity is evident, or where the sentence imposed is so
startlingly inappropriate as to induce a sense of shock. 1 Accordingly, interference
is justified only if it appears that the trial court exercised its discretion improperly
or unreasonably.2
[18] In the present matter, the central enquiry is whether the court a quo, in imposing
a sentence of life imprisonment, exercised its discretion judicially and
appropriately. It was contended on behalf of the Appellant that the trial court
failed to give due consideration to his personal circumstances and erred in not
1 S v Moosajee [1999] 2 All SA 353 (A), para 8
2 S v Gerber [1998] 4 All SA 315 (NC).
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finding substantial and compelling reasons to depart from the prescribed
sentence of life imprisonment.
[19] Section 51(3) of the Criminal Law Amendment Act requires the imposition of
prescribed minimum sentences unless the court is satisfied that substantial and
compelling circumstances exist to justify a lesser sentence. While I remain
mindful of the Appellant’s personal circumstances, I am persuaded that the
sentence imposed by the trial court is unimpeachable. The Appellant twice -raped
an innocent child who looked to him for protection, and in doing so, he gravely
betrayed the trust reposed in him by the complainant.
[20] Crucially, in S v Vilakazi 2009 (1) SACR 552 (SCA) para 58, the Supreme Court
of Appeal held that in cases involving serious crimes, the personal circumstances
of the offender necessarily recede into the background. Once it is clear that the
offence warrants a substantial period of imprisonment, considerations such as
whether the accused is married or single, has two or three children, or is
employed, become largely immaterial. These are the type of “flimsy” grounds that
S v Malgas 2001 (1) SACR 469 (SCA) cautioned courts to avoid.
[21] The sentence imposed is neither shockingly inappropriate nor disproportionate. It
reflects a proper balance between the interests of the Appellant and those of
society. The aggravating factors in this case are profound and far outweigh any
mitigating considerations. The Appellant was convicted of raping an 11 year old
child on two occasions. As correctly argued by the Respondent, the complainant
was vulnerable not only due to her age but also because of the father -daughter
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relationship between herself and the Appellant. He egregiously breached that
position of trust for his own gratification. Moreover, the offence was committed in
the family home, a place where the child should have been safest.
[22] The prevalence of offences against children in this country, as noted in S v
Hadebe and Others 1997 (2) SACR 641 (SCA) , necessitates sentences that
reflect the gravity of such crimes and serve as a deterrent. While courts must
guard against imposing disproportionate sentences, the facts of this case
epitomize the very type of offence the Legislature sought to address through the
prescribed minimum sentence.
[23] In my view, substantial and compelling circumstances contemplated by section
51(1) of the Criminal Law Amendment Act , were not established. The aspects
raised by the Appellant are standard considerations in sentencing. They do not
constitute exceptional examples of those factors, nor are they present to an
exceptional degree. Having weighed all relevant considerations, I am not
persuaded that the trial court misdirected itself. The court properly evaluated the
Appellant’s personal circumstances and balanced them against the seriousness
of the offence, the interests of society, and the vulnerability of the victim.
[24] The argument that the aggravating factors, individually and collectively, far
outweigh the mitigating factors is one with which I fully agree. To impose any
sentence other than life imprisonment for the repeated rape of an 11 year old
child by a trusted adult would, in my view, constitute an injustice and diminish the
seriousness with which society, through its Legislature and courts, regards such
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crimes. This sentence does not induce a sense of shock; rather, it reflects the
gravity of the offence and the legitimate outrage of the community. It is
proportionate to the crime committed and does not warrant adjustment on
appeal.
Order
[25] The appeal on both conviction and sentence is dismissed.
VAN DER MERWE AJ
ACTING JUDGE OF THE HIGH COURT
I agree
TEFFO J
JUDGE OF THE HIGH COURT
DATE OF ARGUMENT: 24 FEBRUARY 2026
DATE OF JUDGMENT: 12 JUNE 2026
REPRESENTATIVES
FOR APPELLANT: M G BOTHA
LEGAL AID SA
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FOR RESPONDENT: ADV C PRUIS
OFFICE OF THE NATIONAL PROSECUTING AUTHORITY