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document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A253/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 08 September 2026
SIGNATURE
In the matter between:
B[...] G[...] P[...] Appellant
and
THE STATE Respondent
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to the
parties/their legal representatives by e -mail and by uploading it to the
electronic file of this matter on Caselines. The date for hand -down is deemed
to be 08 September 2026
JUDGMENT
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KUBUSHI, J
Introduction
[1] This is an appeal against sentence imposed by the Magistrate Court
Tsakane (the trial court) on 1 August 2023. The sentence emanates from the
conviction of the Appellant against three charges of rape of a minor child. The
child, who is the complainant and biological daughter of the Appellant, was 13
years old at the time of the commission of the offences. The charges were
read together with the provisions of section 51(1) of the Criminal Law
Amendment Act 105 of 1997.
[2] The Appellant pleaded guilty to the said charges. Upon conviction the
charges were taken together for purposes of sentence , and the Appellant was
sentenced to life imprisonment. He was declared unfit to possess a firearm in
terms of section 103(1) of the Firearms Control Act 60 of 2000 , and his name
was ordered to be registered in the National Register for Sex Offender s. He
was further found unfit to work with children.
[3] The Appellant has an automatic right of appeal and has approached
this Court appealing the sentence. It is submitted in the Appellant’s heads of
argument that the Appellant has made out a proper case for this Court to
interfere with the sentence imposed by the trial court.
Factual Background
[4] In his section 112(1) 1 statement, the Appellant states that the event
occurred when his daughter came to visit him at his home during the school
holidays. The y shared a bed during the three days of 27, 28 and 29
December 2020. While they were in bed, the Appellant took off her daughter’s
pyjamas and panty. He then kissed her and inserted his penis in her vagina
1 Section 112(1) of the Criminal Procedure Act 51 of 1977.
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without her consent. This he did on the three consecutive nights on the dates
mentioned above.
[5] According to what is stated in the Victim Impact Report that was before
the trial court, after the ordeal , the complainant borrowed a cell phone and
notified her mother about the rapes. Her mother came to fetch the
complainant and went to report the rapes at the Police Station . The
complainant was taken to the hospital for examination. No physical injuries
were noted in the medical report (J88) that was presented in court, but clefts
were noted which according to what is noted in the J88 are indication of
previous vaginal penetration by a blunt object, like an erect penis.
Legal Framework
[6] It is trite that an appeal court will not interfere with the sentence unless
it is convinced that the sentenc ing discretion has been exercised improperly
or unreasonably. The enquiry is not whether the sentence was right or wrong
but whether the court in imposing it exercised its discretion properly and
reasonably.
[7] The Supreme Court of Appeal in S v Malgas 2001 (1) SACR 469 (SCA)
(Malgas) at para 12 thereof, stated that a court of appeal will not,
“in the absence of a material misdirection by the trial court, approach the
question of sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do so would be to
usurp the sentencing discretion of the trial court”.
[8] The word “misdirection” is defined in S v Pillay 1977(4) SA 531 (SCA)
at p.535E-535G as follows:
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“A mere misdirection is not by itself sufficient to entitle the appeal court to
interfere with the sentence; it must be of such a nature, degree, or
seriousness that it shows, directly or inferentially, that the court did not
exercise its discretion at all or exercised it improperly or unreasonably. Such a
misdirection is usually and conveniently termed one that vitiates the court's
decision on sentence.”
The Issue for Determination
[9] The question therefore is whether the trial court materially misdirected
itself when imposing the sentence it did against the Appellant. Put differently
the question is whether the trial court exercised its discretion improperly or
unreasonably when imposing the sentence against the Appellant.
Grounds of Appeal and Analysis
[10] The Appellant’s submission is that the trial court misdirected itself in
finding that substantial and compelling circumstances did not exist in this
matter. The contention being that the trial court should have found that the
fact that the Appellant is a first offender, pleaded guilty and is remorseful,
spent a period of 30 months in custody awaiting trial and the complainant
having suffered no serious physical injuries constitutes substantial and
compelling circumstances justifying departure from the presc ribed minimum
sentence of life imprisonment.
[11] It was argued on behalf of the Appellant that the trial court conceded
that the Appellant was remorseful. The conten tion was that the trial court
should have conceded such factor for rehabilitation purposes. This factor,
according to the Appellant , should have been considered cumulatively with
the other mitigating factors to conclude that the re were substantial and
compelling circumstances warranting deviation from the prescribed minimum
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sentence. It was then argued that the trial court having not done so, was, thus
materially misdirected. This argument was fortified by reliance on the
judgment in S v Nkomo 2007 (2) SACR 198 (SCA) at para 31 where it was
found that there is hardly a person of whom it can be said that there is no
prospect of rehabilitation; and in S v Khumalo 1984 (3) SA 327 (A) (Khumalo)
para 16, where that court remarked that:
"it is the experience of prison administrators that unduly prolonged
imprisonment, far from contributing towards reform, brings about the complete
mental and physical deterioration of the offender".
[12] The offences the Appellant is convicted of are mandated by the
provisions of section 51(1) of the Criminal Law Amendment Act which
prescribes a sentence of life imprisonment in the absence of substantial and
compelling circumstances.
[13] In Malgas at para 9 the court stated that
“There is no indication in the language it has employed that it intended the
enquiry into the possible existence of substantial and compelling
circumstances justifying a departure, to proceed in a radically different way,
namely, by eliminating at the very threshold of the enquiry one or more factors
traditionally and rightly taken into consideration when assessing sentence.
None of those factors have been singled out either expressly or impliedly for
exclusion from consideration.”
[14] In accordance with S v Zinn 1969(2) SA 537 (A) at 540 G the factors
traditionally considered in assessing an appropriate sentence are stated as
follows:
“What has to be considered when imposing sentence is the triad consisting of
the crime, the offender and the interest of society.”
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[15] What the Appellant presented before the trial court to be substantial
and compelling circumstances warranting deviation from the prescribed
sentence was
15.1 The long period of incarceration of two years awaiting trial.
15.2 The Appellant was a first offender and pleaded guilty which
indicates that he showed remorse and took responsibility for his
actions.
[16] The trial court having considered the totality of the merits of the
offence, found that the lengthy period of incarceration, the Appellant being a
first offender and the plea of guilty are not substantial and compelling
circumstances to deviate from the prescribed minimum sentence.
[17] In coming to such a conclusion, the trial court considered the triad,
namely the personal circumstances of the Appellant, the seriousness of the
offence and the interests of society.
[18] In regard to the personal circumstances the trial court considered all
the factors that were contained in the pre -sentencing report that was before it,
and the submission made on behalf of the Appellant . The Appellant was 35
years old at the time of the commission of the offences. He was married and
had four children aged 3, 12, 14, and 17 years respectively. Although he was
not staying with the children, h e took care of their financial needs. He passed
grade 12 but could not further his studies due to lack of financial support. He
was raised by an extended family as his mother was considered too young at
the time the appellant was born. He is a first offender. He pleaded guilty and
was said to be remorseful and further accept ed responsibility for his actions.
He had spent a period of 30 months in custody awaiting trial.
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[19] As regards the seriousness of the offence, the trial court considered
the general impact of rape on the victim as stated in S v Chapman 1997(3) SA
341 (SCA) at page 34 4 J, as a serious offence humiliating, degrading , and
brutal invasion of the privacy , dignity and the person of the victim. The trial
court, naturally, accepted that the rape of a child is a heinous crime, which is
why the law-maker saw it fit to place this type of rape in the category of crimes
attracting a minimum sentence of life imprisonment in the absence of
substantial and compelling circumstances.
[20] The trial court considered that even though no long -lasting physical
trauma is suffered by the child, it is reasonable to assume that the child may
have suffered emotional trauma, the effect of which may survive longer than
bruises or broken bones and may even be permanent.
[21] The fact that the Appellant raped the complainant, his own child on
three consecutive days , weighed heavily on the trial court. This the court
considered to be more shocking and heinous as the child has a natural trust in
its parent to protect and safeguard it and not cause it harm.
[22] The third aspect considered was the interest of society and specifically
of the complainant. In this respect the trial court considered three
consequences to minor children that are recognised by the courts. Firstly, that
children often suffer immediate physical and psychological harm. Secondly,
children who have been sexually abused may never be able as an adult, to
form a loving, caring relationship with another adult. Thirdly, children who
have been sexually abused are prone to become abusers themselves when
they reach adulthood. The trial court concluded on this basis that the harm
occasioned to children by adult sexual offenders is a cause for great concern
because children are robbed of their youth and innocence.
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[23] The court also considered what was reported in the Victim Impact
Report that the complainant dreamt of the accused coming for her and gets
impregnated by him. She blamed herself and has become irritable and even
had suicidal thoughts. She indicated that she misses her grandmother and
uncle who she said used to take care of her better than her mother. She
experienced a lack of concentration at school which led her to repeat Grade 8
and refrained from attending life orientation classes because of the
discussions of sex and rape in those classes . She could no longer associate
with her friends because of the annual traditional ceremony, which was
attended only by virgins, she, no longer being a virgin, could not attend.
[24] The trial court considered that under such circumstances, families have
often been torn apart and rendered dysfunctional. In this matter the mother of
the complainant had become oversensitive and cried a lot, which the trial
court concluded was indicative of self -blame. The complainant wrote a long
letter to her mother blaming her for what happened. At the time of drafting the
report the social worker noted that the complainant and her family still
required professional intervention which was difficult to be attained because of
the family financial constraints.
[25] Having considered all these factors, the trial court concluded that on a
balanced consideration, it could not find the presence of substantial and
compelling circumstances and imposed a sentence of life imprisonment. It is
however argued by the Appellant that the trial court erred in not considering
the possible rehabilitation of the Appellant because if it had done so , it would
have found that there are substantial and compelling circumstances.
[26] The court in Khumalo at para 16 when discussing the issue of possible
rehabilitation remarked as follows:
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“The trial judge said that he had accorded due weight to the offenders'
"personal circumstances and in particular your relative youth." He did not say
that he had regard to their possible rehabilitation. That does not mean that he
had ignored it. In connection with the possible rehabilitation of an offender, I
want to add the following. Firstly, in similar cases it has been said that the
possibility that the offender may be rehabilitated does not signify that a long
term of imprisonment is the only fitting sentence and that the sentence of
death is accordingly excluded. The possibility of rehabilitation also does not
mean that a short term of imprisonment is the only fitting sentence even
though other factors may indicate a longer term. Rehabilitation is one of a
number of factors which the judge has to consid er together when passing
sentence. Secondly, if in the course of a prisoner's detention it should appear
to the prison authorities that the sentence which had been imposed, was so
long that it hampered them in their efforts to rehabilitate him, they should
consider the necessity for remission of sentence or parole.”
[27] From perusal of the record, it is apparent that the trial court accorded
due weight to the Appellant’s personal circumstances, and in particular that he
was a first offender and had spent about 30 months in custody awaiting trial. It
is indeed so that the trial court did not mention rehabilitation in its judgment,
but the fact that it accepted that the Appellant showed remorse and took
responsibility for his action serves as an indication that it did not ignore the
possible rehabilitation o f the Appellant. Besides, rehabilitation is one of a
number of factors which the court has to consider together with other factors
when passing sentence.
[28] I can find no fault in the manner in which the trial court cumulative ly
considered all the factors that were before it . The trial court went at length to
considered all the factors that were before it . The trial court went at length to
consider all the personal circumstances of the Appellant. In particular, it
accepted that the Appellant was remorseful and took responsibility for his
actions. However, that was not the end of the matter. It had to further balance
the personal circumstances of the Appellant against the gravity of the offence
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and the interest of society. It thus concluded, correctly so in my view, that the
gravity of the offence as well as the interest of society outweighed the
personal circumstances of the Appellant.
[29] The trial court was correct to have come to such a conclusion. Both the
gravity of the offence and the interest of society are self evident in the
circumstances of this matter. The complainant was a child of 1 3 years; she
was raped by her own father who should be protecting her instead of harming
her. Not only was she raped once but she was raped on three consecutive
days. She was vulnerable. Appellant states in his section 112 statement that
the child was confused, and he could tell that she did not know what was
happening or understand and that he took advantage of her. The trial court’s
reliance on Chapman and its acceptance that the rape of a child is a heinous
crime, which led the lawmaker to place this type of rape in the category of
crimes attracting a minimum sentence of life imprisonment in the absence of
substantial and compelling circumstances, is correct.
[30] The impact of the offe nces on this minor child is enormous. As the trial
court found , even though no long -lasting physical trauma is suffered by the
child, it is reasonable to assume that the child may have suffered emotional
trauma, the effect of which may survive longer than bruises or broken bones
and may even be permanent. Additionally, the trial court found, rightly, that the
harm occasioned to children by adult sexual offenders is a cause for great
concern because children are robbed of their youth and innocence. The
Supreme C ourt of Appeal in S v Mahomotsa 2002 (2) SACR 435 (SCA)
(Mahomotsa) stated at para 11 that
“The learned judge meant, no doubt, that no serious or lasting physical
injuries had been sustained and that no evidence as to the extent and likely
duration of psychological damage was placed before the court. If, on the other
duration of psychological damage was placed before the court. If, on the other
hand, he meant to find that no physical injury or psychological damage
whatsoever was done, he erred. While it may theoretically be possible that a
victim of rape committed in the circumstances and manner I have described
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may not suffer any psychological damage other than that experienced while
the attack is taking place and in its immediate aftermath, it is in the highest
degree unlikely. Where as here, the complainants were young girls, it is quite
unrealistic to suppose that there will be no psychological harm. To quantify its
likely duration and degree of intensity is of course not possible in the absence
of appropriate evidence, but that does not mean that one should approach the
question of sentence on the footing that there was no psychological harm .”
(Own emphasis)
[31] What is reported in the Victim Impact Report is telling. T he report
records that the complainant dreams about the Appellant coming for her and
gets impregnated by him. She is blaming herself for what has happened and
becomes irritable and even had suicidal thoughts. The complainant indicated
that she misses her grandmother and uncle who she said used to take care of
her better than her mother. She experienced a lack of concentration at school
which led her to repeat Grade 8 and refrained from attending life orientation
classes because of the discussions of sex and rape in those classes. She
could no longer associate with her friends because of the annual traditional
ceremony, which was attended only by virgins, she, no longer being a virgin,
could not attend. What is of more concern is that the probation officer reports
that the complainant and the mother require therapy which they might not be
able to access because of financial constraints.
[32] The family life has been negatively impacted as a result of the conduct
of the Appellant. The mother of the complainant has become oversensitive
and cries a lot, which the trial court concluded was indicative of self -blame.
The mother has trust issues now, even towards her husband who has been
with the family since the complainant was six years. She is now suspicious of
the husband’s support towards the children and constantly asks the children if
the husband’s support towards the children and constantly asks the children if
her husband has not displayed any unacceptable and/or suspicious conduct.
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[33] Under these circumstances I am constrained to reject this ground of
appeal out of hand.
[34] In the heads of argument, i t was further argued that courts should be
reluctant to readily impose a sentence of life imprisonment and that, life
imprisonment should be reserved only for the worst of the cases and that a
determinate sentence ought to have been imposed . Th e argument was
substantiated by reference to the judgment in Malgas at para 25 (I), which laid
down a determinative test as follows:
"if the sentencing court on consideration of the circumstances of the particular
case is satisfied that they render the prescribed sentence unjust in that it
would be disproportionate to the crime, the criminal, and the needs of society,
so that an injustice would be done by imposing that sentence, it is entitled to
impose a lesser sentence."
[35] In addition, the Appellant sought support for his submission in the
judgment in Mahomotsa at para 18, where that court when dealing with the
differences in the seriousness of offences held that:
"Even in cases falling within the categories delineated in the Act there are
bound to be differences in the degree of their seriousness. There should be
no misunderstanding about this: they will all be serious but some will be more
serious than others and subject to the caveat that follows, it is only right that
the differences in seriousness should receive recognition when it comes to
the meting out of punishment."
[36] The Appellant contends that the sentence of life imprisonment in this
matter is disproportionate to the crime, the offence and the interest of society
on the basis that this is not a case where a se ntence of life imprisonment
should have been imposed because the injuries the complainant sustained do
not warrant such a sentence.
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[37] The Appellant seem to have ignored what the court in Mahomotsa at
para 19 thereof stated when commenting about the degree of the seriousness
of the offence. That court expressed itself as follows:
“One must of course guard against the notion that because still more serious
cases than the one under consideration are imaginable, it must follow
inexorably that something should be kept in reserve for such cases and
therefore that the sentence imposed in the case at hand should be
correspondingly lighter than the severer sentences that such hypothetical
cases would merit. There is always an upper limit in all sentencing
jurisdictions, be it death, life or some lengthy term of imprisonment, and there
will always be cases which, although differing in their respective degrees of
seriousness, none the less all call for the maximum penalty imposable. The
fact that the crimes under consideration are not all equally horrendous may
not matter if the least horrendous of them is horrendous enough to justify the
imposition of the maximum penalty.”
[38] Even if it might be that this matter falls under the least of the
horrendous matters , it is in our view horrendous enough to warrant the
sentence of life imprisonment when the seriousness of the matter is
considered as alluded to above.
[39] Furthermore, the probation officer states in the Pre-Sentencing Report
that the Appellant was identified as a high risk and that should his unlawful
behaviour not be addressed, he might re -offend. As the trial court found, in
deciding what is an appropriate sentence, the plight of children in general and
the principles and objects of sentencing must take precedence. As a result, in
the absence of exceptional circumstances, in the case of adult offenders, the
objectives of sentencing commonly referred to as denunciation, general and
specific deterrents and the need to separate offenders from society, must take
preference over the other recognised objectives of sentencing.
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[40] I am in alignment with the manner i n which the court in S v C 1996(2)
SACR 181 (C) at 186 d – f defined rape, when that court said the following:
“Rape is regarded by the society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim, he murders her self -respect
and destroys her feeling of physical and mental integrity and security. His
monstrous deeds often haunt his victim, and subjects her to mental torment
for the rest of her life, a fate often worse than loss of life.”
[41] This ground of appeal falls to be rejected, as well.
[42] Having considered the Appellant’s grounds of appeal, I have not been
persuaded that the re has been any relevant material misdirection by the trial
court, and the appeal ought, therefore, to be dismissed.
Order
[43] The following order is made:
1. The appeal on sentence is dismissed.
2. The sentence of life imprisonment is confirmed.
_________________________
E.M KUBUSHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I concur
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_________________________
B.M.T MORE AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Appellant : Adv J L Kgokane
For the Respondent : Adv C Pruis
Date of the hearing :25 August 2026
Date of judgment : 08 September 2026