REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
(1) REPORTABLE: ¥€SI NO
(2) OF INTEREST TO OTHER JUDGES: ¥ES/ NO
(3) REVISED
26th August 2026
DATE
In the matter between:
DOUGLAS SETHOSA
and
THE STATE
SIGNATURE
JUDGME NT
Cora m: STRIJDOM J and MATJEL E AJ
Case No: A323/2023
Appellant
Respondent
INTRODUCTION
1. This is an appeal against both conviction and sentence arising from proceedings
in the Regional Court, Pretoria North.
2. The appellant, Mr. Douglas Sethosa, was convicted of two counts of rape in
contravention of section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (SORMA), two counts of kidnapping, two
counts of assault and two counts of theft. He was sentenced to life imprisonment
on each of the two rape counts, together with terms of imprisonment in respect of
the remaining offences.
3. The appellant enjoyed an automatic right of appeal by virtue of the sentences of
life imprisonment imposed by the Regional Court. The appeal is directed against
both the convictions and sentences.
4. Two distinct enquiries arise. The first concerns whether the State proved the
appellant's guilt beyond reasonable doubt. The second concerns whether,
notwithstanding the correctness of the convictions, the Regional Court was legally
entitled to sentence the appellant to life imprisonment on the two rape counts.
5. Having considered the record, the evidence and the submissions of both parties, I
am satisfied that there is no basis to interfere with any of the convictions.
6. The sentences of life imprisonment stand on a different footing. For reasons that
follow, the court a quo materially misdirected itself regarding the version and
application of section 51 of the Criminal Law Amendment Act 105 of 1997 ("the
CLAA") applicable when the offences were committed.
THE APPEAL AGAINST CONVICTION
7. The appellant's principal contention is that the trial court erred in accepting the
evidence of the complainants and rejecting his version that the sexual intercourse
was consensual.
8. It was common cause that sexual intercourse occurred. The DNA evidence was
admitted by consent, as were the J88 medical reports relating to the complainants.
The central issue was accordingly consent.
9. In determining that question, the evidence cannot be fragmented. It must be
evaluated holistically, having regard to its strengths and weaknesses, the
probabilities and the evidence of the appellant.
10. In S v Hadebe and Others 1997 (2) SACR 641 (SCA) it was reaffirmed that,
absent demonstrable and material misdirection, the factual findings of a trial court
are presumed correct, and an appellate court will interfere only where the recorded
evidence demonstrates that those findings are wrong. Similarly, S v Francis 1991
(1) SACR 198 (A) emphasises the limited powers of an appellate court to interfere
with credibility findings, particularly because the trial court had the advantage of
observing the witnesses while they testified. These principles are relied upon by
the State.
11. I find no material misdirection in the trial court's assessment of the evidence.
12. Although the complainants were single witnesses concerning what occurred during
the respective rapes, section 208 of the Criminal Procedure Act 51 of 1977 permits
a conviction upon the evidence of a single competent witness. S v Sauls and
Others 1981 (3) SA 172 (A) makes clear that there is no formula for evaluating
such evidence. The court must consider its merits and demerits and determine
whether, notwithstanding any shortcomings , it is satisfied that the truth has been
told.
13. In the present matter, significant aspects of the complainants' accounts were
independently corroborated.
14. In respect of the first complainant, Mr Mashiyane confirmed that she emerged from
the bushes dirty and crying and reported that she had been raped. Her mother
similarly confirmed that she was crying, dirty, had grass in her hair and did not have
her school bag.
15. A fellow scholar, Poppy Mashiane's evidence supported the complainant's account
of the circumstances in which the taxi was stopped and contradicted the appellant's
version concerning a pre-arranged meeting. Tshepo Ndlovu provided further
corroboration concerning the complainant's cellphone, which was traced to the
appellant and contained photographs connected to the complainant's family.
16. The medical and other evidence also established that the first complainant had
sustained injuries.
17. These circumstances were inconsistent with the appellant's suggestion that the
sexual encounter was consensual. The trial court was accordingly entitled to reject
his version where it conflicted with the credible evidence accepted by the court.
18 Having considered the evidence in its totality, I am satisfied that the State proved
the appellant's guilt beyond reasonable doubt. There is therefore no basis to disturb
the rape convictions. Same applies to the convictions on the remaining counts of
assault, kidnapping and robbery or theft. No material misdirection has been
demonstrated which would justify appellate interference.
19. The appeal against conviction must consequently be dismissed.
THE APPEAL AGAINST SENTENCE
20. Sentencing is pre-eminently a matter for the discretion of the trial court. An appeal
court does not interfere merely because it would itself have imposed a different
sentence.
21. In S v Pillay 1977 (4) SA 531 {A) it was held that appellate interference is justified
where a material misdirection demonstrates that the sentencing discretion was not
exercised properly or judicially.
22. The present matter involves such a misdirection. The error does not arise
principally from me we1gnt accorded to me appellanrs personal clrcum:stance:s. It
arises from the court a quo's conclusion that the two rape convictions attracted the
prescribed sentence of life imprisonment under section 51 (1) of the CLAA.
The applicable version of the CLAA
23 The sentencing enquiry must begin with the legislation applicable when the
offences were committed.
24. That is important because Part I of Schedule 2 has subsequently been amended.
The current wording cannot retrospectively determine the sentencing
consequences of earlier conduct.
25. Under the version applicable to the offences in issue, rape fell within Part I of
Schedule 2, and thus attracted life imprisonment under section 51 (1 ), only where
one or more of the specified jurisdictional circumstances existed.
26. Those circumstances included, amongst others, rape where the victim was under
the age of 16 years, rape involving the infliction of grievous bodily harm, specified
circumstances involving repeated rape, and rape committed by a person falling
within the particular repeat-offender provision then prescribed by the Schedule.
27. The statutory jurisdictional facts cannot be assumed merely because rape is, by its
nature, an extremely serious offence. They must be established before the
prescribed sentence attached to that particular category of rape may be invoked.
The rape of the first complainant
28. The first difficulty concerns the complainant's age. The first complainant was 17
years old at the relevant time. Under Part I of Schedule 2 as it then stood, the age
based category attracting life imprisonment concerned rape where the victim was
a person under the age of 16 years. A 17-year-old complainant did not fall within
that statutory age category.
29. It follows that the first rape could not attract life imprisonment merely on the basis
of the complainant's age. The court a quo therefore erred insofar as it treated the
complainant's age as bringing that offence within section 51 (1 ).
30. This conclusion in no way diminishes the seriousness of the offence or the
vulnerability of the complainant. It concerns the proper application of a penal
statute.
31. Courts are obliged to impose severe punishment where the circumstances justify
it, but the prescribed sentencing jurisdiction created by section 51 must be
exercised within the boundaries established by Parliament.
The second rape and the repeat-offender provision
32. A further difficulty arises concerning the basis upon which the second rape was
treated as attracting life imprisonment.
33. The fact that the appellant was ultimately convicted of two separate rapes did not,
under the version of Part I applicable at the time, automatically mean that each
conviction attracted life imprisonment merely because there were two rape
convictions before the court.
34. The wording applicable at the time must be distinguished from later amendments
to the CLM. The applicable Part I provision referred, in the relevant repeat
offender category, to rape committed by a person who had been convicted of two
or more offences of rape or compelled rape but had not yet been sentenced in
respect of those convictions.
35. That statutory requirement was not established merely by the appellant being
convicted, in the proceedings under appeal, of the two rape offences presently
before this Court. Nor could one of the two offences retrospectively acquire the
character of a qualifying repeat offence merely because the appellant was later
convicted of the other in the same proceedings.
36. The jurisdictional requirements for life imprisonment must exist in accordance with
the legislation applicable to the offence. They cannot be created retrospectively by
the sequence in which verdicts are subsequently pronounced.
37. On the record before us, the statutory basis relied upon by the court a quo for
impo sing life imprisonment on this ground was therefore incorr e ct.
Notice of the minimum-sentence regime
38. There is an additional difficulty. The appellant contends that he was advised at the
commencement of the proceedings that the applicable prescribed minimum
sentences for rape were 10, 15 and 20 years, depending upon his status as an
offender, and was not warned that he faced life imprisonment under section 51 (1 ).
39. The State accepts the general proposition that an accused must be warned,
whether in the charge sheet or otherwise during the trial, that the State relies upon
the minimum-sentence regime exposing him to life imprisonment. It contends,
however, that the charge sheet referred to section 51, and that defence counsel
subsequently referred to section 51 (1) when addressing the court in mitigation.
40. In S v Legoa 2003 (1) SACR 13 (SCA) and S v Ndlovu 2003 (1) SACR 331
(SCA) the Supreme Court of Appeal emphasised the relationship between
adequate notice of the enhanced sentencing regime and an accused person's
constitutional right to a fair trial.
41. Ndlovu makes clear that where the State intends to invoke the minimum-sentence
regime, fairness will generally require that this intention be pertinently brought to
the accused's attention sufficiently early to permit the proper conduct of the
defence.
42. Knowledge demonstrated by counsel during mitigation does not necessarily
answer the question whether the appellant had adequate notice of the case and
sentencing regime he was required to meet during the trial.
43. It is, however, unnecessary to decide the sentence appeal exclusively upon this
procedural ground. The more fundamental difficulty is substantive: the court a quo
applied section 51 ( 1) to the two rape convictions upon an incorrect appreciation of
the statutory jurisdictional requirements applicable when the offences were
committed. This is more so that the learned Regional Magistrate found the accused
not guilty of assault with intent to do grievous bodily harm, but common assault
during the commission of the rape of the first complainant. Therefore 'rape
involving the infliction of grievous bodily harm' that would bring the first rape within
the life imprisonment regime, did not consequently apply.
Conse quence of the misdirection
44. That error constitutes a material misdirection. Once a sentencing court materially
misdirects itself in determining the statutory sentencing regime, the appeal court is
at large to reconsider sentence.
45. This does not mean that the seriousness of the offences falls away. Rape is a
grave violation of a person's dignity, bodily integrity and sexual autonomy. The
circumstances surrounding these offences were serious, and substantial custodial
sentences are plainly warranted.
46. The State correctly emphasised the circumstances in which the complainants
were taken away from their destinations and the consequences of the offences.
Those aggravating circumstances must nevertheless be considered within the
correct statutory sentencing framework.
47. The appellant was a first offender. The State did not establish previous
convictions. His personal circumstances included his age, four minor children,
employment history and the period spent in custody before finalisation of the
matter.
48. These considerations do not trivialise the offences. They are relevant to
individualised and proportionate sentencing once the erroneous life-imprisonment
regime is removed.
49. The sentences of life imprisonment imposed by the court a quo therefore cannot
stand.
Appropriate substituted sentences
50. The setting aside of life imprisonment does not mean that lenient sentences are
appropriate. The first complainant was 17 years old. She was particularly
vulnerable and the circumstances surrounding the offence were aggravating.
51. The evidence concerning the first complainant also established physical injuries,
although the precise statutory question whether those injuries amounted to the
"infliction of grievous bodily harm" for purposes of Part I must not simply be
assumed from the seriousness of the assault. The State's heads describe
abrasions, swelling and other injuries and relied upon them to contend that section
51 (1) applied.
52. In respect of the other complainant, the circumstances of the rape similarly call for
a substantial term of imprisonment.
53. The sentences must reflect the separate violations committed against two
complainants while also ensuring that the cumulative sentence remains
proportionate to the appellant's overall criminality. In determining appropriate
sentences, the Court has considered the triad of the offences, the offender and the
interests of society, together with the recognised purposes of punishment.
54. I am satisfied that substantial determinate terms of imprisonment are appropriate
and that the sentences should be structured to reflect both the individual
seriousness of the offences and their cumulative effect.
CONCLUSION
55. The trial court did not materially misdirect itself in evaluating the evidence relevant
to conviction. The complainants' evidence was properly evaluated in the context of
the evidence as a whole and was materially corroborated. The appellant's version
was not reasonably possibly true. The appeal against all the convictions must
therefore fail.
56. The sentences of life imprisonment imposed in respect of the two rape convictions
are, however, vitiated by material misdirection.
57. In respect of the first complainant, who was 17 years old, the age-based life
imprisonment provision applicable at the time required the victim to be under 16
years. In respect of the other rape, the applicable repeat-offender provision was
not triggered merely because the appellant was convicted of two rape offences in
me same proceedings. T he court a quo consequently appllea the life-Imprisonment
provision on an incorrect statutory footing.
58. The subsequent amendments to Part I of Schedule 2 cannot retrospectively be
applied to the appellant's offences. The present consolidated statute now contains
materially broader provisions, including a different formulation concerning multiple
rape convictions, but that wording was introduced only with effect from 5 August
2022.
59. The error was material and entitles this Court to interfere with sentence. The
appeal against sentence must accordingly succeed to the limited extent that the
sentences of life imprisonment imposed in respect of the two rape convictions are
set aside.
60. This Court is at large to impose sentence afresh. In doing so, the Court remains
mindful of the seriousness of the offences. The setting aside of the life sentences
results from the incorrect application of the statutory sentencing regime and does
not diminish the gravity of the rapes or their impact upon the complainants.
61. The appellant was a first offender. His personal circumstances included his age,
responsibility for four minor children, his employment history and the period spent
in custody before the matter was finalised. These circumstances must be balanced
against the serious and aggravating circumstances in which the offences were
committed.
62. The two rape offences were committed against different complainants and
constituted separate invasions of their dignity, bodily integrity and sexual
autonomy. Each offence therefore warrants a substantial custodial sentence in its
own right.
63. Having considered the nature and seriousness of each offence, the interests of
the complainants and society, the appellant's personal circumstances, the
purposes of punishment and the principle of proportionality, a sentence of 15
years' imprisonment in respect of each rape conviction is appropriate.
64. At the same time, the cumulative effect of the sentences must be considered.
Sentencing is not a mechanical exercise in which individual terms of imprisonment
are simply accumulated without regard to the overall punishment ultimately
imposed.
65. In order to achieve a sentence which adequately reflects the fact that two separate
complainants were raped, while avoiding an unjust cumulative effect, 5 years of
the 15-year sentence imposed in respect of the second rape shall run
concurrently with the 15-year sentence imposed in respect of the first rape.
66. The effective sentence in respect of the two rape convictions is consequently 25
years' imprisonment.
67. In my view, that sentence appropriately balances the seriousness of the offences,
the interests of society and the appellant's personal circumstances. It constitutes
substantial punishment for two grave offences committed against separate
complainants while remaining individualised and proportionate.
ORDER
68. In the result, the following order is made:
1. The appeal against conviction is dismissed.
2. All the convictions of the appellant are confirmed.
3. The appeal against sentence succeeds only in respect of the sentences
of life imprisonment imposed on the two counts of rape.
4. The sentences of life imprisonment imposed by the Regional Court in
respect of the two rape convictions are set aside and substituted as
follows:
4.1 Count 5 - Rape: Fifteen (15) years' imprisonment.
4.2 Count 9 - Rape: Fifteen (15) years' imprisonment.
5. Five (5) years of the sentence of fifteen (15) years' imprisonment imposed
on count 9 shall run concurrently with the sentence of fifteen {1 ::>) years·
imprisonment imposed on Count 5.
6. The effective sentence in respect of Counts 5 and 9 is therefore twenty
five (25) years' imprisonment.
7. The sentences imposed by the court a quo in respect of all the remaining
counts are confirmed. The sentences of offences committed with Count 5
will run concurrently therewith , so will the sentences commit ted with
count 9 run concurrently with its sentence .
8. In terms of section 282 of the Criminal Procedure Act 51 of 1977, the
substituted sentences are antedated to the date upon which the appellant
was originally sentenced.
JUDGE OF THE HIGH COURT
MATJELEAJ
I agree
APPEARANCES:
FOR THE APPELLANT: ADV. MORE
INSTRUCTED BY LEGAL AID, PRETORIA
FOR THE RESPONDENT: ADV. WILSENACH
INSTRUCTED BY: NATIONAL PROSECUTING AUTHORITY