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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CA&R 64/25
In the matter between:
S[...] F[...] APPELLANT
And
THE STATE RESPONDENT
JUDGMENT ON APPEAL
NGOQO AJ
[1] The appellant appeared in the Regional Court, Aliwal North on one count
of rape in contravention of section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 read with section 51(1) of the
Criminal Law Amendment Act 105 of 1997 (the CLAA). Upon conviction, the
regional magistrate sentenced the appellant to one term of life imprisonment.
The appellant now appeals against that sentence.
[2] On 6 March 2024 in Thembisa Location, Burgersdorp, the complainant
and appellant, who are customarily married, were at the home of the appellant’s
brother where they consumed liquor together and retired to bed. Two of their
three children were at the house, though it is not clear where or in which room
they were sleeping. At some stage the appellant asked the complainant for
permission to have sexual intercourse with her. The complainant agreed, and the
appellant proceeded and had vaginal sexual intercourse with her.
[3] However, at some stage while the two were having sexual intercourse, the
appellant instructed the complainant to suck his penis and stated that he wanted
to have sexual intercourse with the complainant with her back facing him. In the
words of the complainant, “he wanted to have sexual intercourse with me like a
dog”. The complainant indicated to the appellant that she did not want to. This
angered the appellant. He was aggressive and pulled her and continuously
assaulted her by strangling and kicking her while she was on the bed.
[4] He then touched her anus, inserted his penis into it, and proceeded to
have sexual intercourse with her anally. He did so without her consent. She was
traumatised by what she described to have been the appellant’s “weird” and
“strange behaviour”.
[5] At some point during the night, the complainant asked the appellant for
permission to go to the bathroom. She was bleeding. Parenthetically, the J88
medical report reflects abrasions and blood stains on both the vagina and anus
of the complainant. The appellant agreed. She was on her way to the bathroom
when she was seen by the appellant’s brother, who observed that she was
injured. He reported the matter to the police. The appellant continued to have
sexual intercourse with the complainant right through the night.
[6] In the early hours of the following morning, the police descended on the
appellant’s brother’s house where the incident took place. The complainant was
taken to hospital because of the injuries she had sustained on her head and body.
The appellant, who fled after the police's arrival, was later arrested and
detained.
[7] This court must decide whether the sentence of a term of life imprisonment
in the circumstances of this case ought to be interfered with.
[8] Firstly, sentencing, in its entirety, is a unitary task and is often not
without considerable difficulty since it involves a multi -faceted approach
entailing consideration of the overarching factors traditionally taken into
account, namely: the nature and seriousness of the crime, the interests of
society, and the personal circumstances of an accused. 1 These are frequently
referred to as the triad of factors that were pronounced in S v Zinn.2 The degree
of emphasis on any of these factors, as well as the ultimate impact of all
circumstances relevant to sentencing, is ordinarily a matter of judicial
discretion. A court sitting on appeal on sentence should interfere only where the
discretion was not exercised judiciously and properly 3. The ground rules upon
which a court of appeal can exercise its discretion to interfere with the sentence
were set out in the case of S v Petkar,4 where the court said:
‘The court’s power to interfere with an appeal is circumscribed. It may only do so if the
sentence is vitiated by [1]. Irregularity, [2] misdirection, [3] is one to which no reasonable
court could have come; in other words, one where there is a striking disparity between the
sentence imposed and that which it considers appropriate.’
However, it is trite law that sentence is a matter of discretion of the court
burdened with the task of imposing the sentence5.
1 In determining whether or not substantial and compelling circumstances may exist, S v Vilakazi 2009 (1)
SACR 40 (SCA) makes it plain that a court must consider: ‘All factors relevant to the nature and seriousness of
the criminal act itself as well as all relevant personal and other circumstances relating to the offender which
could have a bearing on the seriousness of the offence and the culpability of the offender. If a court is indeed
satisfied that a lesser sentence is called for in a particular case thus justifying a departure from the prescribed
sentence then it hardly needs saying that the court is bound to impose that lesser sentence.’; See also generally S
v Malgas supra para 25.
2 S v Zinn 1969 (2) SA 537 (AD) at 540 F-H.
3 S v Barnard (469/2002) [2023] ZASCA 63 par 9.
4 1988 (3) SA 571 (A) at 574 C.
5 S v Kgasimore (635/98) [1999] ZASCA 63 63 para 10.
[9] The appellant’s personal circumstances placed on record are that he was
thirty-five (35) years old at the time of sentence. At the time of committing the
offence, the appellant was gainfully employed. His income varied between
R4 000 and R5 000 a month. With his salary, he supported his wife and three
children. He was still paying off their recently purchased house. It was further
submitted on his behalf that he had no previous convictions and had apologized
to his wife for his actions, which he said would never be repeated. It was further
submitted that the appellant knew what he did was wrong. These factors, it was
argued on behalf of the appellant, ought to have persuaded the magistrate to find
that substantial and compelling circumstances in this case do exist.
[10] It was further submitted on behalf of the appellant that the prescribed
sentence of life imprisonment is disproportionate to the appellant’s personal
circumstances, the seriousness of the offence and the interests of society and
therefore unjust, justifying interference with the magistrate’s discretion.
[11] Contending that this court ought to dismiss the appeal, the State
submitted that the circumstances of this case brought the imposed sentence
within the purview of section 51(1) of the CLAA, as indicated in the charge.
This is because the appellant assaulted the complainant, leaving her with
bruises, abrasions, and marks on her neck and back, as well as abrasions on her
vagina and anal area. The injuries are documented in a J88 medical report that is
contained in the record on appeal. The appellant and the complainant were also
in a domestic relationship as they were married. The appellant was in a position
of trust and authority over both his wife and children. The appellant gave no
reason for his conduct.
[12] The State submitted that, in sentencing the appellant, the court a quo
carefully considered the appellant’s personal circumstances, the nature of the
offence, the interests of society and the type of sentence to be imposed as
prescribed by the legislation and did not misdirect itself.
[13] In the matter of S v Scott Crossly6 The court in dealing with the aspect of
sentencing had the following to say;
‘Plainly any sentence imposed must have deterrent and retributive force. But of course,
one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and
retribution are legitimate elements of punishment, they are not the only ones, or for that
matter, even the overriding ones. Against that must be weighed the appellant’s prospects
of reformation and rehabilitation… It is true that it is in the interest of justice that crime
should be punished. However, punishment that is excessive serves neither the interests of
justice nor those of society.’ [sic]
[14] In Casu, the State invoked section 51(1) of the CLAA. This position was
crystallised in the case S v Malgas7 where the court held that
6 2008 (11) SACE 223 (SCA at 241 para 35.
7 [2001] ZASCA 30.
‘Courts are required to approach the imposition of sentence conscious that the legislature has
ordained life imprisonment… as the sentence that should be imposed for the listed crimes in
the specified circumstances.’
[15] The appellant not only forcefully had intercourse with his wife against
her will, but he also brutally assaulted her to subdue her so he could have his
way with her anally, something that the complainant had expressly and
unequivocally stated that she was opposed to and by which she felt repulsed.
When the appellant did that, his criminal behaviour and conduct transcended
that of an ordinary man and a husband to the complainant. His behaviour was
disgusting and heartless. He showed her no mercy and traumatised her in the
worst possible way that a man can humiliate his wife.
[16] Section 12(1)(c) of the Constitution 8 guarantees to every citizen of this
country the right to freedom and security of the person, which includes the right
to be free from all forms of violence from either public or private sources.
Women, children, and elderly persons are regarded as particularly vulnerable
members of society, and in that context, this right must be safely and jealously
guarded by the courts.
8Act 108 of 1996.
[17] Rape in its very nature is an invasive, degrading and humiliating offence.
In the case of S v Crawford9 Govindjee J wrote:
‘Courts have 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.’
In S vs Nkomo 10 the following was said;
‘Against the backdrop of the unprecedented spate of rapes in this country, courts must also be
mindful of their duty to send out a clear message to potential rapists and to the community
that they are determined to protect the equality, dignity and freedom of all women. Society’s
legitimate expectation is that “an offender will not escape life imprisonment which has been
prescribed for a very specific reason simply because “substantial and compelling”
circumstances are, unwarrantedly, held to be present. In our constitutional order, women are
entitled to expect and insist upon full protection of the law.’
[18] What is disturbing about this case is the fact that the appellant was not a
stranger to the complainant, his victim. They were married and had children
together. Further disturbing about this case is the fact that instead of taking full
responsibility for his actions, the appellant not only fled when the police
arrived, but he also pleaded “not guilty” to the rape charge in a case where
evidence was overwhelming and clearly strong against him, thereby making the
complainant recount the appalling ordeal that she went through on the night of
the incident. That does not speak to the appellant’s alleged remorse.
9 (B 98 of 2014) [2014 ZWHHC 64 (06 February 2014).
10 S vs Nkomo [2006] ZASCA 139, [2007]3 ALL SACR 596.2007(2) SACR 198 SCA
[19] His apology after his arrest cannot in any way be seen to be a sign of
remorse. Had he been remorseful, he would have apologised immediately after
realising that he had hurt his wife and would not have fled the scene like a
common criminal. His apology only demonstrates his regret for having been
caught and prosecuted for his actions. It demonstrates no remorse.
[20] In the case of S v Gregory11 the court made the following observation;
‘The scourge of femicide and gender -based violence is reaching astronomical heights and is
referred to as a pandemic in our country. It must be addressed and curbed. Many women and
children in this country are almost daily faced with such violent crimes where they fall prey
and suffer in silence.’
[21] The conduct of the appellant, which was a brazen and appalling display
of domestic violence, should not be treated leniently. In the case of S v Mudau12
Mathopo AJA, as he then was, held the following;
‘Domestic violence has become a scourge in our society and should not be treated lightly but
should be deplored and also severely punished. Hardly a day passes by without a report in the
media of a woman or child being beaten, raped or even killed in this country. Many women
and children live in constant fear. This is in some respect a negation of their fundamental
rights to equality, human dignity, and bodily integrity.’
11 2023 ZAGPJHC 358 (21 April 2023)
12 2014 JDR 061 (SCA); (547/13) [2014] ZASCA 13 (13 March 2014) at para 6.
[22] The fact that the appellant is a first -time offender at 35 years of age, and
the fact that he had drunk liquor are outweighed by the aggravating factors in
the case. In particular, his consumption of liquor cannot obscure the gravity of
the offence, particularly where the evidence indicates that he was fully
cognisant of his actions. Tritely, if liquor is to be considered a weighty factor in
mitigation, it must be shown that the appellant’s consumption impaired his
faculties or judgment and diminished his moral blameworthiness (see DPP,
Grahamstown v Peli13).
[23] In Mpongoshe v The State14 the court referred to the following excerpt by
the author SS Terblanche in his work entitled A Guide to Sentencing in South
Africa:15 The learned author states:
‘The intake of alcohol or drugs is not necessarily a mitigating factor; the circumstances of the
case will determine whether it is. Generally, however, once the court is satisfied that the
offender was intoxicated, his intoxication will be a mitigating factor. The reason for this is
that “[liquor] can arouse sense and inhibit sensibilities”, which may diminish the
responsibility of the offender. However, it has to be shown that the intoxication actually
impaired the mental faculties of the offender; only then can his blameworthiness be regarded
as diminished.’
[24] Whilst there is evidence that the appellant consumed liquor, there is no
evidence indicating that it made any appreciable difference to his moral
reprehensibility. In the light of the progression of his conduct as events
unfolded, it could hardly be contended with justification that his mental
faculties or sensibilities were blunted by intake of liquor.
13 DPP, Grahamstown v Peli 2018 (2) SACR 1 (SCA) at 4g.
14 Para 24.
15 2nd edition, pp 200-201, para 7.3.9.
[25] The fact that the appellant takes care of his family and is in the process of
paying off his house cannot solely be the primary justification for leniency
either. The Supreme Court of Appeal in the case of Tsobo v Tsobo 16 said that
the Domestic Violence Act 17 places upon the courts and law enforcement
functionaries extensive obligations to assist and protect victims of domestic
violence. This obligation is inescapable. In a country that is tainted and plagued
by crime, where women and children’s rights are trampled on daily, the only
message that the courts should be clearly communicating to the general public is
that they are intolerant when it comes to domestic violence. This can only be
shown by the courts meting out harsh sentences on those who commit domestic
violence-related offences.
[26] In the case of Aliko v The State 18 Dambuza JA, as she then was, had the
following to say;
‘It remains the paramount function of the sentencing court to independently apply its mind to
the consideration of a sentence that is proportionate to the crime committed, and that the
cardinal principle that the punishment should fit the crime should not be ignored.’
16 2022 (2) SACR 233 (SCA)
17 116 of 1998
18 (552/2018) [2019] ZASCA 31 (28 March 2019).
[27] Taking all the factors mentioned above, I am not persuaded that the
sentence imposed by the lower court ought to be interfered with.
[28] In the result, I make the following order
1. The appeal is dismissed, and the sentence imposed by the trial court is
confirmed.
______________________
DN Ngoqo
Judge of the High Court (Acting)
I agree
___________________________
S Rugunanan
Judge of the High Court
APPEARANCES
Appellant’s Counsel: D. P Geldenhuys, instructed by Legal Aid South Africa,
Makhanda;
Respondent’s Counsel: T Kaleni, Instructed by the Office of the Director of
Public Prosecutions, Makhanda; Tel: 046 602 3000.
Date heard: 18 March 2026.
Date delivered: 18 August 2026