THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 546/2021
In the matter between:
FREDERICK CORNELIUS BOTHA

APPELLANT
and
THE STATE

RESPONDENT
Neutral citation: Botha v The State (546/2021) [2022] ZASCA 87 (08 June
2022)
Coram: MOLEMELA, CARELSE and HUGHES JJA, and MEYER and SALIE-
HLOPHE AJJA
Heard:13 May 2022
Delivered:08 June 2022
Summary: Criminal law and procedure - sentence – special leave cumulative
effect totalling 36 years’imprisonment - where appellant convicted of similar
multiple offences: circumstances in which an appeal court will interfere:
cumulative effect of sentences in this case does not induce a sense of shock-
inteference not warranted

ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Van der Schyff
J with Maritz AJ sitting as a court of appeal)
The appeal against the sentences imposed is dismissed.

JUDGMENT
Carelse JA (Molemela and Hughes JJA, Meyer and Salie-Hlophe AJJA
concurring):
Introduction
[1] At issue in this appeal is whether the cumulative effect of a sentence of 36
years’ imprisonment imposed by the Gauteng Division of the High Court,
Pretoria (the high court) for a range of sexual offences, is shockingly or
disturbingly inappropriate: pertinently, whether this Court should interfere with
the sentences imposed by making an order in terms of s 280 of the Criminal
Procedure Act 51 of 1977 (CPA).1 This appeal brings into sharp focus the serving
of concurrent sentences. The rationale for such orders is that a sentencing court
should be mindful of the cumulative (and sometimes harsh) impact of sentences
where an offender has been convicted of multiple offences.

1 Section 280 provides that:
‘(1) When a person is at any trial convicted of two or more offences or when a person under sentence or
undergoing sentence is convicted of another offence, the court may sentence him to such several punishments
for such offences or, as the case may be, to the punishment for such other offence, as the court is competent to
impose.
(2) Such punishments, when consisting of imprisonment, shall commence the one after the expiration, setting
aside or remission of the other, in such order as the court may direct, unless the court directs that such sentences
of imprisonment shall run concurrently……’

Background Facts
[2] The appellant was convicted in the regional court (Pretoria) on the
following charges: three counts of indecent assault in contravention of s 14(1) of
the Sexual Offences Act 23 of 1957 against a boy under the age 16 years;2 six
counts of sexual assault in contravention of s 5(1) of the Criminal Law (Sexual
Offences And Related Matters) Amendment Act 32 of 2007 - thus committing an
act of sexual violation against a boy under the age of 16;3 and three counts of rape
- thus committing sexual penetration in contravention of s 3 of Act 32 of 2007
against a boy under the age of  16.4 The appellant was sentenced to three terms
of life imprisonment for his convictions of rape, three years’ imprisonment for
each conviction of indecent assault, and five years’ imprisonment for each
conviction of sexual assault.

[3] In terms of s 309(1)(a) of the CPA,5 the appellant became entitled to an
automatic right of appeal against both his convictions and sentences to the high
court. On appeal to the high court, the convictions and sentences in respect of
counts one, four, five, eight and eleven were set aside. The conviction in respect
of count six (rape) was set aside and replaced with common assault. In addition,
the conviction in respect of count seven (rape) was set aside and replaced with
assault with intent to do grievous bodily harm.

2 Counts one, two and three.
3 Counts four, five, nine, ten, eleven and twelve.
4 Counts six, seven and eight.
5 Section 309(1)(a) provides that:
‘Subject to section 84 of the Child Justice Act, 2008 (Act No 75 of 2008), any person convicted of any offence
by any lower court (including a person discharged after conviction) may, subject to leave to appeal being
granted in terms of section 309B or 309C, appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction: Provided that if that person was sentenced to imprisonment for life
by a regional court under section 51(1) of the Criminal Law Amendment Act, 1997 (Act No 105 of 1997), he or
she may note such an appeal without having to apply for leave in terms of section 309B: Provided further that
the provisions of section 302(1)(b) shall apply in respect of a person who duly notes an appeal against a
conviction, sentence or order as contemplated in section 302(1)(a).’

[4] The high court sentenced the appellant as follows: three years’
imprisonment for each of the two indecent assault convictions;6 five years’
imprisonment for the conviction of assault;7 10 years’ imprisonment for the
conviction of assault with intent to cause grievous bodily harm;8 and five years’
imprisonment for each of the three convictions of sexual assault.9 The high court
ordered that the sentences imposed should not run concurrently without providing
any reasons. Accordingly, the cumulative effective sentence imposed was 36
years’ imprisonment which was antedated to the date of sentencing by the trial
court (9 October 2017).

[5] A summary of the relevant evidence led at the trial is as follows: Over a
period of five years, the appellant sexually abused the complainant, a minor boy.
The sexual abuse started when the complainant was only six years old. Because
the complainant’s parents were employed during the school holidays, he would
be sent to his paternal grandmother’s house, where the appellant, who lived with
the complainant’s paternal grandmother, offered to take care of him when his
paternal grandmother was at work. It was mostly during these times when the
complainant’s paternal grandmother was at work that the appellant started to
groom the complainant, which eventually led to the sexual abuse of the
complainant. In April 2012, the complainant found the courage to report to his
mother that he had been repeatedly sexually abused by the appellant.

[6] Most of the incidents of sexual abuse took place in the sitting room whilst
the complainant was watching television. The complainant gave a graphic and
chilling account of the sexual abuse. At first, the appellant instructed the
complainant to touch the appellant’s private parts, and in turn, the appellant

6 Counts two and three.
7 Count six.
8 Count 7.
9 Counts 9, 10 and 12.

would do the same to him. There were times when the appellant instructed the
complainant to insert his penis into the complainant’s mouth. The complainant
conceded that the appellant penetrated him anally once and was uncertain whether
this occurred in 2007 or 2008. The complainant described the act of penetration
as follows: ‘. . . in and out, he moved forwards and backwards . . .’ and his
description of the other forms of sexual abuse amounts to masturbation. In
addition, the appellant instructed him to have sexual intercourse with other
children whilst the appellant watched them. The complainant’s mother took him
to a psychologist after she discovered that the complainant had been involved in
sexual acts with other children. The appellant threatened the complainant that if
he were to tell anyone, the appellant would tell his parents that he was engaging
in sexual activity with other children.

[7] Throughout cross-examination the complainant repeatedly stated that he
had been afraid to tell his parents what the appellant had been doing to him
because the appellant had threatened to kill his paternal grandmother and his
parents. In about 2011, the complainant’s mother had another child. The appellant
told the complainant that his intention was that as soon as his younger sibling
turned a year  old, the appellant would sexually abuse his younger sibling as well.
This threat caused the complainant to tell his parents that the appellant had been
sexually abusing him over a five-year period. The medical doctor testified that
the minor complainant suffered trauma to the foreskin of his penis due to sexual
assault, and as a result had to undergo a circumcision. The appellant was arrested,
and, as I have outlined in the introductory part of this judgment, subsequently
convicted and sentenced.

[8] In S v Malgas,10 Marais JA provides guidance as to when an appellate court
can interfere with a sentence:
‘. . . A court exercising appellate jurisdiction cannot, 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. Where material misdirection by the trial court
vitiates its exercise of that discretion, an appellate court is of course entitled to consider the
question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance
and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is
at large. 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”.’

[9] A guiding principle in sentencing is that all sentences must be
proportionate to the seriousness of the offence. Sentences can be appealed if it is
believed that the sentence is disproportionate to the crime committed or unfairly
imposed.11 In S v Sadler,12 the court held that:
‘. . .it is important to emphasise that for interference to be justified, it is not enough to conclude
that one’s own choice of penalty would have been an appropriate penalty. Something more is
required; one must conclude that one’s own choice of penalty is the appropriate penalty and
that the penalty chosen by the trial court is not. Sentencing appropriately is one of the more
difficult tasks which faces courts and it is not surprising that honest differences of opinion will
frequently exist. However, the hierarchical structure of our courts is such that where such
differences exist it is the view of the appellate court which must prevail.’

[10] It is well within a trial court’s discretion to determine the type and severity
of a sentence on a case by case basis. In determining an appropriate sentence,

10 S v Malgas [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA) para 12.
11 For example see S v Willemse [2021] ZAWCHC 92; 2022 (1) SACR 43 (WCC) para 13 citing S v Bogaards
[2012] ZACC 23; 2012 (12) BCLR 1261 (CC); 2013 (1) SACR 1 (CC) para 41.
12 S v Sadler  2000 SACR 331 (SCA); [2000] 2 All SA 121 (A) para 10.

three guiding principles must be considered, collectively. These principles are
known as the ‘triad of Zinn’ and include the gravity of the offence, the
circumstances of the offender, and public interest.

[11] The trial court took into account two reports, a victim impact report and a
pre-sentencing report, which were compiled on behalf of the complainant and the
appellant respectively. The complainant’s father informed the probation officer
that after laying charges against the appellant, he would drive past their home and
swear at them. It was also reported that the appellant once bumped the
complainant with his vehicle when the complainant walked home from the shops.
As a result, the complainant’s family decided to move to another house. The
appellant denied this, but, on the probabilities, there was no reason for the
complainant’s family to relocate if the appellant had not harassed them. The
complainant had experienced nightmares, panic attacks, struggled to sleep and
suffered from depression as a result of the psychological trauma he had suffered
due to the sexual abuse. The complainant continues to have therapy, if and when
it is necessary. The probation officer found the complainant to have a lack of self-
esteem which caused him to become withdrawn, and in turn his peers took
advantage by bullying him.

[12] The trial court had regard to the triad of factors and also warned itself to
balance them. Because of the trial court’s findings that the complainant was raped
more than once, inter alia, it imposed three life sentences. On appeal to the high
court, the rape convictions and sentences were set aside. The remaining
convictions and sentences were confirmed on the basis that the individual
sentences imposed by the trial court ‘. . . are not shockingly inappropriate, given
the age of the complainant being . . . between 6 and 11 years old when so
abhorrently and repeatedly abused by the appellant’.

[13] The appellant has one previous conviction from 1991, for malicious
damage to property. For the purposes of sentence, he was treated as a first
offender, which is the only mitigating factor present. Counsel for the appellant
submitted that the probation officer opined that the appellant was not a fixated
child molester. There is no factual basis for this opinion. Counsel for the appellant
correctly conceded that the ongoing sexual abuse of the complainant constituted
not only serious crimes, but also heinous crimes. The appellant was born on 5
August 1968. At the time of sentencing, he was 49 years old. He had a successful
panel beating business that he lost due to his incarceration. Prior to his
relationship with the complainant’s grandmother, which ended after she was
made aware of the sexual abuse, the appellant was married for 14 years and raised
two step children with his ex-wife. The appellant is engaged to be married.
Counsel for the appellant submitted that he had no history of previous sexual
offences.

[14] The aggravating factors are numerous. The sexual abuse took place over a
period of five years. The complainant was only six years old when he was first
violated. The appellant gave no indication that he was going to stop his deviant
behaviour. The complainant had to undergo surgery because the foreskin of his
penis was injured as a result of the continuous sexual abuse perpetrated against
him by the appellant. The complainant was groomed over a sustained period. He
was threatened and manipulated to engage in sexual conduct with other children.
The appellant threatened to kill the complainant’s family. All these deeds and
threats caused the complainant deep emotional trauma, as a result of which he
suffered from depression. That he had to endure this in silence for five years of
his childhood is a serious aggravating factor.

[15] The complainant considered the appellant to be his grandfather. The
appellant was in a position of trust; it is betrayal of a high degree when a person

in the position of the appellant, whom he trusted and depended on continously
harmed him. The appellant not only encouraged the complainant to have sexual
intercourse with other children, but he also watched while they engaged in such
sexual activities. All indications are that the appellant had no plans to stop. He
told the complainant that he would sexually abuse his younger brother. If the
complainant had not mustered the courage to tell his parents. I shudder to think
what could have happened. It was submitted on behalf of the appellant that the
cumulative effect of the sentences should be taken into account to come to a more
balanced sentence that would serve the potential of rehabilitating the appellant.
Furthermore, so it was contended, the appellant is not a danger to society. I
disagree. The appellant showed no remorse and through his own actions showed
that he is a danger to other young children as well. Even after the appellant had
been charged, he threatened and intimidated the complainant and his family.

[16] The nub of the submissions on behalf of the appellant was that the
sentences were disproportionate to the crime. The various acts of sexual abuse
occurred at the grandmother’s house, over a period of five years and were
therefore not acts that  could be considered to be part  of a single transaction. The
appellant has shown no remorse for his behaviour. He did not plead guilty and
apologise for his deeds, instead he levelled various threats at the complainant and
his family. He, in fact, influenced the complainant to have sexual intercourse with
other children. Unfortunately, we do not know what impact this has had on the
other children.

[17] The high court did not give reasons for its order that the sentences should
not run concurrently. Despite this, it is clear that the appellant had no intention of
stopping. He had every intention of continuing with his deviant behaviour. Cases
dealing with sexual abuse of the vulnerable are a plague in this country and
continue unabated. The heinous crimes committed in this case, viewed in their

totality, are of a serious kind and nature. Too often, psychological harm is
downplayed and not viewed in the same light as physical harm.

[18] The aggravating factors far outweigh the mitigating factors in this case.
The individual sentences were not severe. The gravity of the offences and the
scourge of such offences on helpless and vulnerable children cannot be
downplayed and the effect of these crimes cannot be understated. The impact on
the family structure and community, as well as the psychological harm and
adverse emotional impact on the child, are well known. A concurrence of the
sentences was not possible on account of the abominable conduct of the
appellant.13 We accept that a sentence of 36 years’ imprisonment is severe, but
the facts of this case are such that a sentence of 36 years’ imprisonment is not
shockingly disproportionate to the crime. The high court did not exercise its
discretion unreasonably. There is no reason to interfere with the sentences
imposed.

[19] In the result, the following order is made:
The appeal against the sentences imposed is dismissed.

________________________
CARELSE JA
JUDGE OF APPEAL

13 Nthabalala v S [2014] ZASCA 28 (SCA).

APPEARANCES

For appellant:

J Potgieter

Legal Aid South Africa, Pretoria

Legal Aid South Africa, Bloemfontein

For respondent:

SD Ngobeni

Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

08 June 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Botha v The State (546/2021) [2022] ZASCA 87 (08 June 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment dismissing an appeal against the
decision of the Gauteng Division of the High Court, Pretoria (the high court).

The issue before the SCA concerned the question of whether the cumulative effect of 36 years’
imprisonment imposed by the high court for a range of sexual offences, was shockingly or disturbingly
inappropriate.

Over a period of five years, the appellant sexually abused the complainant, a minor boy. The sexual
abuse started when the complainant was only six years old. Because the complainant’s parents were
employed during the school holidays, he would be sent to his paternal grandmother’s house, where the
appellant, who lived with the complainant’s paternal grandmother, offered to take care of him when his
paternal grandmother was at work. It was mostly during those times when the complainant’s paternal
grandmother was at work that the appellant groomed the complainant, which eventually led to the
sexual abuse of the complainant. In April 2012, the complainant found the courage to report to his
mother that he had been repeatedly sexually abused by the appellant.

Following this, the appellant was convicted in the regional court (Pretoria) on the following charges:
three counts of indecent assault in contravention of s 14(1) of the Sexual Offences Act 23 of 1957
against a boy under the age 16 years; six counts of sexual assault in contravention of s 5(1) of the
Criminal Law (Sexual Offences And Related Matters) Amendment Act 32 of 2007 - thus committing an
act of sexual violation against a boy under the age of 16; and three counts of rape - thus committing
sexual penetration in contravention of s 3 of Act 32 of 2007 against a boy under 16 .The appellant was
sentenced to three terms of life imprisonment for his convictions of rape, three years’ imprisonment for
each conviction of indecent assault, and five years’ imprisonment for each conviction of sexual assault.

On appeal to the high court, the convictions and sentences in respect of counts one, four, five, eight
and eleven were set aside. The conviction in respect of count six (rape) was set aside and replaced
with common assault. In addition, the conviction in respect of count seven (rape) was replaced with
assault with intent to do grievous bodily harm. The high court sentenced the appellant as follows: five
years’ imprisonment for each of the two indecent assault convictions; five years’ imprisonment for the
conviction of assault; 10 years’ imprisonment for the conviction of assault with intent to cause grievous
bodily harm and five years’ imprisonment for each of the three convictions of sexual assault.  The high
court ordered that the sentences imposed should not run concurrently without providing any reasons.
Accordingly, the cumulative effective sentence imposed was 36 years’ imprisonment.

The SCA held that a guiding principle in sentencing was that all sentences must be proportionate to the
seriousness of the offence. Accordingly, sentences could be appealed if it was believed that the
sentence was disproportionate to the crime committed or unfairly imposed. Accordingly, the SCA held
that in determining an appropriate sentence, three guiding principles must be considered, collectively.

These principles are known as the ‘triad of Zinn’ and included the gravity of the offence, the
circumstances of the offender, and public interest.

The SCA considered that the trial court took into account two reports, a victim impact report and a
pre-sentence report, which were compiled on behalf of the complainant and the appellant respectively.
Following this, the SCA held that the trial court had regard to the triad of factors and also warned itself
to balance them. Consequently, the SCA held that the aggravating factors were numerous. The sexual
abuse took place over a period of five years, the complainant was only six years old when he was first
violated, the appellant gave no indication that he was going to stop his deviant behaviour, the
complainant had to undergo surgery because his foreskin was damaged, the complainant was groomed
over a sustained period, he was threatened and manipulated to engage in sexual conduct with his
cousins and the appellant threatened to kill his family.

The SCA found that the various acts of sexual abuse occurred at the grandmother’s house, over a
period of five years and were therefore not acts that could be considered to be part of one single
transaction. Moreover, the appellant had shown no remorse for his behaviour. He, in fact, influenced
the complainant to have sex with other children. Unfortunately, as noted, the SCA did not know what
impact that had on other children. In addition, the SCA held that, although the high court did not give
reasons for its order that the sentences should not run concurrently, it was clear that the appellant had
no intention of stopping. He had every intention of continuing with his deviant behaviour. Hence the
SCA held that cases dealing with sexual abuse of the vulnerable are a plague in this country and
continue unabated. According to the SCA, the heinous crimes committed in this case, viewed in its
totality, were of a serious kind and nature.

Finally, the SCA held that the aggravating factors far outweighed the mitigating factors. Thus, the
individual sentences were not severe. Similarly, the gravity of the offences and the scourge of such
offences on helpless and vulnerable children cannot be downplayed and the effect of these crimes
cannot be understated. Moreover, the impact on the family structure and community, as well as the
psychological harm and adverse emotional impact on the child, were well known. Thus, a concurrence
of the sentences was not possible on account of the abominable conduct of the appellant.  Given that,
the SCA accepted that a sentence of 36 years’ imprisonment was severe, but the facts of this case
were such that a sentence of 36 years’ imprisonment was not shockingly disproportionate to the crime.
According to the SCA, the high court did not exercise its discretion unreasonably. Hence, there was no
reason to interfere with the sentences imposed. As a result, the SCA dismissed the appeal against the
sentences.
~~~~ends~~~~