THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 440/2019
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS, FREE STATE
APPELLANT

and

JOHANNES MOKATI
RESPONDENT

Neutral citation:
Director of Public Prosecutions, Free State v Mokati (Case no
440/2019) [2022] ZASCA 31 (25 March 2022)
Coram:
MAKGOKA
and
MABINDLA-BOQWANA
JJA
and
KGOELE,
PHATSHOANE and UNTERHALTER AJJA
Heard:
29 September 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the
Supreme Court of Appeal website and released to SAFLII. The date and
time for hand-down is deemed to be 25 March 2022 at 10h00.
Summary:  Criminal law and procedure – conviction and sentence – culpable
homicide – causation – mens rea – whether questions of law properly reserved.
Rape – sentence – whether the prescribed minimum sentence inadequate given
aggravating factors.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein, (Mathebula J
sitting as the court of first instance):
The appeal by the State to reserve questions of law is dismissed.
The respondent’s cross-appeal against the conviction and sentence is
dismissed.
The sentence on count 2 stands.
The State’s appeal against the sentence on count 1 is upheld.
The sentence of 10 years’ imprisonment on count 1 is set aside and in its place
is substituted the following:
‘The accused is sentenced to 18 years’ imprisonment.
13 years of the 15 years on count 2 shall run concurrently with the sentence on
count 1. The effective sentence is thus 20 years’ imprisonment.’
The substituted sentence is antedated to 27 September 2018 in terms of s 282
of the Criminal Procedure Act 51 of 1977.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Phatshoane AJA (Mabindla-Boqwana JA and Unterhalter AJA concurring):
[1] The respondent, a 22-year old, Mr Johannes Mokati, was convicted on two
counts in the Free State Division of the High Court (the trial court), namely rape (count
1), for which he was sentenced to 10 years’ imprisonment, and robbery with
aggravating circumstances (count 2), for which he was sentenced to 15 years’
imprisonment. It was ordered that five years of the prison term on count 1 would run
concurrently with the sentence on count 2, thus resulting in an effective term of
20 years' imprisonment. The respondent was acquitted of murder (count 3). The
appellant, the Director of Public Prosecutions, Free State (the State), appealed against
the sentence imposed on the respondent for rape. It also reserved certain questions
of law in terms of s 319 of the Criminal Procedure Act 51 of 1977 (CPA), in respect of
the acquittal of the respondent on the count of murder and contended that the

competent verdict of culpable homicide ought to have been returned. The respondent
cross-appealed against his conviction and sentence in respect of the rape and robbery
counts. The appeal and cross-appeal as well as the reservation of points of law, are
with the leave of the trial court. At the request of this Court, Advocates Reinders and
Nkhahle of the Free State Society of Advocates appeared as Amicus Curiae. We are
grateful for their written and oral submissions.

[2] The respondent did not dispute that on 9 February 2017 he had sexual
intercourse with the 21-year old Ms AM, now deceased, at her workplace – an
attorney’s office. Thereafter, the respondent took the deceased’s belongings, namely
a cellular phone, a laptop computer, a tablet computer and accessories. According to
the respondent, the sexual intercourse was consensual and he took the deceased’s
belongings as a form of security for an amount of R1500 owed to him by the deceased.
In terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, the trial court
admitted into evidence a statement made by the deceased to the police on the evening
of the day of the incident. It also considered the evidence of the deceased’s sister, the
police, the forensic and medical experts.

[3] The trial court then made the following factual findings: The deceased was
alone at her workplace on 9 February 2017 when the respondent entered the premises
armed with a knife. He forcibly raped the deceased after subduing her by threatening
her at knifepoint. After the rape, he took her electronic devices mentioned above. He
threatened to kill her and her family if she reported the incident to the police. Later that
evening, the deceased reported her ordeal to her sister, at home. According to her
sister, the deceased was emotional. Although the deceased did not expressly tell her
that the respondent had raped her, she confirmed that by nodding in agreement upon
probing by her sister. After the rape, the deceased was examined by Dr De Lange,
who prescribed her doxycycline 100mg and flagyl 400 mg, broad-spectrum antibiotics
that prevent and treat sexually transmitted diseases. Later the same evening, the
deceased made a detailed statement to the police about the incident.

[4] The following day the deceased was examined by a clinical forensic nurse,
Sister Qhathatsi, at a rape centre.  The deceased reported to the nurse that she was
vaginally and anally penetrated. No visible (vaginal) injuries were noted. However, the

nurse observed fresh anal lacerations consistent with anal penetration. Sister
Qhathatsi gave her post-exposure treatment (prophylaxis), a type of antiretroviral
(ARV) to prevent infection, to use for 28 days. She also gave her avral, a hormonal
pill. From 9 February 2017, several medicines were prescribed for the deceased by a
number of medical practitioners. She died on 24 February 2017. The cause of death
was recorded as cerebral venous sinus thrombosis.

[5] With regard to the count of robbery with aggravating circumstances, the trial
court accepted the evidence of Mr Matendere, a technology specialist who operated
a shop near the deceased’s workplace. He testified that the respondent handed over
to him a tablet for repairs on 9 February 2017, the day of the incident. The respondent
also offered to sell him a laptop computer, which offer he declined. While updating the
tablet’s software, he noticed several Afrikaans WhatsApp messages and became
suspicious that the tablet might have been stolen. He sent a message to one contact
he recognised from the tablet list to ask if she knew the tablet’s owner. He later
received a call from the police who requested him to inform them when the respondent
had come to collect the tablet. The following day, the respondent was arrested when
he arrived at Mr Matendere’s shop. The trial court rejected the respondent’s version
that he had given Mr Matendere the devices for safekeeping because he did not want
to take them to his place in the township. It also rejected his evidence that Mr
Matendere had requested him to sell him the laptop.

[6] Based on the above findings, the trial court rejected the respondent’s version
and convicted him of rape and robbery with aggravating circumstances, against which
he was granted leave to cross-appeal. There are three issues to be considered. First,
the cross-appeal by the respondent against the conviction on the rape and robbery
counts. Secondly, the appeal by the State on the questions of law reserved in terms
of s 319 of the CPA. Thirdly, the appeal and cross-appeal against sentence. I consider
them in turn.

The cross-appeal by the respondent against the conviction on the rape and
robbery counts

[7] In the absence of demonstrable and material misdirection by the trial court, its
findings of fact are taken by the appeal court to be correct and will only be disturbed if

they are clearly wrong.1  The respondent’s evidence was at variance with the warning
statement he made to the police on how the purported consensual sexual intercourse
occurred. He kept his counsel in the dark on numerous crucial aspects of his evidence
and claimed not to have known that the issues would be canvassed in court. The trial
court found the respondent to have been 'a poor witness' whose version was
interspersed with contradictions. On an overall analysis of the record, this finding is
unassailable. Furthermore, the deceased’s reports of the rape, her sudden panic
attacks, anxiety and stress dispel any notion that the sexual intercourse could have
been consensual. The overall evidence presented by the State portrays a picture that
is consistent and probable that the respondent had raped the deceased.

[8] With regard to the robbery with aggravated circumstances, apart from the
inherent improbabilities in the respondent’s version, there is independent and objective
evidence of Mr Matendere. It was his exemplary conduct that led to the arrest of the
respondent. Once his evidence was accepted, it put paid to the respondent’s version
that he took possession of the deceased’s property as a form of security. It makes no
sense that the deceased would give the respondent very valuable items (a tablet, a
laptop and a cell phone) as security for a debt of only R1 500. Also, if Mr Matendere
had an interest in the laptop, it would defy logic for him to jeopardise his chances of
acquiring it by having the respondent apprehended, as he did.

[9] In my view, the trial court was correct in convicting the respondent on these two
counts. His cross-appeal must fail.

The appeal by the State on the questions of law reserved in terms of s 319 of the
CPA
[10] I now turn to the murder count on which the respondent was acquitted and
against which the State has been granted leave by the trial court to reserve questions
of law. It is to be remembered that the State contended that the competent verdict of
culpable homicide ought to have been returned. The State has a right of appeal only

1 S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645E-F.

against a trial court's mistakes of law, not its mistakes of fact.2 The restriction cannot
be relaxed simply because the trial judge considered the facts incorrectly.3
Section 319(1) of the CPA provides that:
‘If any question of law arises on the trial in a superior court of any person for any offence, that
court may of its own motion or at the request either of the prosecutor or the accused reserve
that question for the consideration of the Appellate Division, and thereupon the first-mentioned
court shall state the question reserved and shall direct that it be specially entered in the record
and that a copy thereof be transmitted to the registrar of the Appellate Division.’

[11] Three jurisdictional requirements must be satisfied in terms of the section,
namely: (a) only a question of law may be reserved; (b) the question of law must arise
'on the trial' in a superior court; (c) the reservation may be made by the court of its own
motion or at the request of the prosecutor or the accused, in which event the court
should 'state the question reserved' and direct that it be entered in the record. This
Court in Magidela4 stated that the question must be framed by the judge to accurately
express the legal point he or she had in mind. There must also be certainty concerning
the facts on which the legal point is to be decided. The relevant facts should be set
out fully in the record so as to decide the question of law. Moreover, the point of law
should be readily apparent from the record for, if it is not, the question cannot be said
to arise 'on the trial' of a person.

[12] Apparent from the trial court’s factual findings, the deceased had been on a
contraceptive pill called Yaz for a year prior to the incident. After the rape, she was
prescribed other drugs – ARVs, antibiotics – to which she did not respond well. After
taking the first ARV treatment, she experienced severe nausea and took fluids with
difficulty, as a result of which she had dehydration. She started vomiting, which was
followed by diarrhoea. The doctor who initially treated her, added further medication,
which apparently made her health condition worse. She later visited a district hospital
where a doctor prescribed a different ARV regimen. Her condition worsened until she
died on 24 February 2017. As mentioned already, the cause of death was recorded

2 Director of Public Prosecutions, Western Cape v Schoeman and Another [2019] ZASCA 158; 2020
(1) SACR 449 (SCA) para 39.
3 Ibid. See also E Du Toit, F De Jager, A Paizes, A Skeen and S E Van der Merwe ‘Commentary on the
Criminal Procedure Act’ Supplementary Volume at 31-38A.
4 Director of Public Prosecutions: Natal v Magidela and Another [2000] 2 All SA 337 (A); 2000 (1) SACR
458 (SCA) para 9.

as cerebral venous sinus thrombosis.  According to expert evidence adduced during
the trial, this occurs when a blood clot forms in the brain’s venous sinuses and prevents
blood from draining out of the brain. As a result, blood cells may break and leak blood
into the brain tissues, forming a haemorrhage. A clinical pharmacologist testified that
this had most likely been caused by dehydration due to vomiting and diarrhoea, which
was worsened by lack of taking enough fluids. She also explained that nausea,
vomiting and diarrhoea were all known side-effects of the ARVs.

[13] The State contended that the respondent should be held responsible for the
deceased’s death because, had he not raped her, she would not have had to take the
ARVs. The trial court held that it was ‘clear from the evidence that the use of different
medication could have independently caused the clotting or worked against each other
to cause sagittal venous thrombosis.’ It concluded that, based on the proven facts, the
respondent could not have foreseen the chain of events that ultimately led to the
deceased’s death. Accordingly, the trial court acquitted the respondent on the murder
count.

[14] It is this finding that the State is aggrieved by, and reserved the following eight
questions of law in three categories:
‘7.
CAUSALITY:
7.1
Is it correct in Law for the Learned Judge to have found that there is no causal link or
nexus between the rape and/or aggravated robbery and the death of the deceased?
7.2
Were the legal principles underlying the element of causality properly considered and
applied?
8. EXPERT EVIDENCE
8.1
Was the approach by the Learned Judge pertaining to expert evidence and the
evaluation of the testimony of the expert witnesses correct in Law?
8.2
Was proper weight attached to the opinion and findings of the expert witnesses,
especially in the light of their expertise in different fields?
8.3
Was the approach by the Learned Judge correct in Law to have found that the state
relied on three expert witnesses in its quest to prove the allegations in count 3 whereas the
state called five experts in the medical and forensic fields?
9. MENS REA
9.1
Were the principles of dolus eventualis correctly applied vis-à-vis culpa?

9.2
Is it correct in Law for the Learned Judge not to have considered the argument and
concession by the state that the accused should be convicted of culpable homicide on the
proven facts?
9.3
Is it correct in Law for the Learned judge not to have considered the competent verdict
of culpable homicide.’

[15] For the most part the opposing contentions before this Court were confined to
questions of law relating to legal causation, the principles of which are well established
and not in issue. It is not in dispute that the respondent's conduct was the factual cause
of death. The question whether it was correct for the trial court to have found that there
is no causal link or nexus between the rape and/or aggravated robbery and the death
of the deceased, in my view, is a factual enquiry which would involve the evaluation of
evidence to determine whether the rape was the operative cause of death. The
conclusion by the trial court that the State had failed to discharge the onus was based
upon a finding that ‘the use of different medication could have independently caused
the clotting or worked against each other to cause sagittal venous thrombosis’. It
reasoned that, based on the proven facts, the respondent could not have foreseen the
chain of events that ultimately led to the deceased’s death. This was not a conclusion
of law. Indeed, a different court might have approached the facts differently. However,
this would not morph a factual issue to one of law.

[16] In Director of Public Prosecutions, Western Cape v Schoeman5 this Court cited
S v Coetzee6 as an example of how our courts distinguish carefully between errors of
law and fact. The following remarks were made:
‘. . . There [in Coetzee] the question posed was whether on the facts found the court had
correctly applied the law. There had been two separate incidents resulting in the death of a
person. On a charge of murder, the accused's version was that he had acted in self-defence.
The trial court acquitted him. The state appealed, contending that he was at least guilty of
culpable homicide. It appeared from the record that the trial judge had treated the two incidents
in isolation, as if the first incident had no bearing on the second. It was also apparent that he
had not analysed the evidence properly by asking himself whether the accused had acted in
self-defence or whether the facts showed that there had been a 'free-for-all' between him and
the deceased. This court concluded that it may well have been that the trial judge had

5 Ibid fn 2 para 71.
6 S v Coetzee 1977 (4) SA 539 (A).

misdirected himself with regard to his treatment of the facts, but there was no indication of any
misdirection regarding the law.’ (Footnotes omitted.)

[17] As to the second set of questions relating to the evaluation of expert evidence,
the weight to be attached thereto and the trial court’s supposed error in having found
that the State relied on three expert witnesses to prove murder whereas it called five
experts, it suffices to say that these matters are not questions of law.7 Dealing with the
evidence in a fragmented fashion would amount to a misdirection of fact, not that of
law. So too, ignorance of the evidence or a lack of appreciation for its relevance are
questions of fact, not of law. The mere fact that the judicial process has become flawed
by the way a trial court goes about assessing the evidence before it does not justify
permitting s 319 to be used by the prosecution to reserve a point of law for what is in
truth misdirection of fact.8

[18] The third and last category of questions concerns the State’s complaint that the
trial court failed to consider its concession, and submission, on the proven facts, that
the respondent was guilty of culpable homicide, not murder. Even on their most liberal
construction, it takes the matter no further because the trial court, and the State, failed
to identify the facts that we should consider for purposes of answering those questions.
There is a paucity of factual findings leading to the trial court’s conclusion that the
respondent could not have foreseen the chain of events that ultimately led to the
deceased’s death. The absence of adequate factual substantiation does not give rise
to a question of law.

[19] In its application for leave to appeal, the State endeavoured to set out the
factual basis upon which the purported points of law hinged. These are almost identical
to the recorded findings in paras 3 and 4 above. In addition, it stated that from 9
February 2017, several medicines were prescribed for the deceased by a number of
medical personnel. From the rape and robbery to her death, the deceased’s condition
never improved but deteriorated rapidly from 20 February 2017 until her death four
days later. Before the attack, it states, the deceased was in perfectly good health and
suffered no chronic illness. The mechanism of death, contributing factors and the

7 Ibid at 544H–545A.
8 Ibid fn 2 paras 74.

cause of death were correctly evaluated, investigated and described by the respective
expert witnesses.

[20] The generalised findings on the evidence of the experts, as set out by the State,
upon which the professed points of law are predicated, suffer deficiencies. In my view,
the trial court’s findings on this aspect ought to have been explicitly delineated and
fully set out in the record. The following remarks in Schoeman (supra) para 45 are
apposite:
‘If we were to entertain the appeal on the merits, we would face the task of having to ascertain
the relevant facts. To this end, we would have to read the entire record and re-evaluate all of
the evidence, thereby second-guessing the trial judge who was best placed to do this. We
would thus have to approach the matter as if this were a full appeal on the merits. The problem
does not end there. Having embarked on this task, we would have to decide whether the facts
established by us accord with those found by the trial court. It is only if we find that the factual
findings of the trial court were wrong and the result of a legal error would we be obliged to
interfere with the decision of the trial court.’
Where it is unclear from the trial court's judgment what its findings of fact are, it is
necessary to request the trial judge to clarify its factual findings. Where this is not done,
the point of law is not properly reserved and that ought to be the end of the matter.9

[21] Apart from the deficient factual basis underpinning the supposed points of law,
I have endeavoured to demonstrate that the stated questions were, in truth, questions
of fact. The trial court erroneously granted leave in this regard. If this Court were to
accede to the State’s contentions, it would open the door to appeals by the prosecution
against acquittals on the questions of fact, contrary to the sound legal practice and the
enduring jurisprudence of our courts. The State’s appeal on this ground must therefore
fail.

The appeal and cross-appeal against sentence
[22] I now consider the appeal and cross-appeal against the sentence. Essentially
the State appeals against the 10-year prison sentence for rape on the basis that it is
shockingly lenient and thus inappropriate. This is the prescribed minimum sentence in

9 Ibid fn 2 paras 40 and 46.

terms of s 51(2)(b) of the Criminal Law Amendment Act 105 of 1997 (the CLAA) read
with Part III of Schedule 2. In the indictment, the State alleged that the respondent had
repeatedly penetrated the deceased. Ordinarily, if multiple acts of rape are
established, this would attract a sentence of life imprisonment in terms of s 51(1) of
the CLAA. The respondent was sufficiently apprised of this provision and the possible
sentence of life imprisonment in the event of a conviction.

[23] The State contended that the respondent had raped the deceased in four
different positions and at three different places in the office. Consequently, it argued,
he should have been sentenced to life imprisonment in terms of s 51(1) of the CLAA.

[24] The trial court had accepted the evidence in the deceased’s statement that the
respondent had raped her as follows: he first penetrated her vaginally on a chair;
secondly, he made her lean on a table and once more penetrated her; thirdly, he
pushed her on her knees on the carpet and again penetrated her, and fourthly, when
his penis slid out, he turned her on her back and penetrated her. There was also the
evidence of sister Qhathatsi that the deceased had reported both vaginal and anal
penetration.  The nurse also observed fresh anal lacerations that are consistent with
anal penetration. This was corroborated by Dr Johanna Maria Kotzé, a clinical forensic
medicine specialist, who stated that the multiple tears of the skin around the anus
extending inside suggested that the penetration was from the outside and excluded
tears occasioned by constipation or inflammatory bowel disease. Thus, the respondent
penetrated the deceased in different positions at various places within the office.

[25] The trial court found the rape to have been a single continuous act which fell
within the purview of s 51(2)(b). It based its conclusion on the reports which the
deceased made to Dr De Lange and Cst Prinsloo, whose evidence was that they
understood her report to have been that the rape was one continuous sexual
encounter in different positions. In addition, concerning whether the deceased was
anally penetrated, the trial court gave the respondent the benefit of the doubt because,
so reasoned the trial court, the deceased did not convey that report to either
Dr De Lange, the police or sister Qhathatsi. It found no substantial and compelling
circumstances to deviate from the prescribed minimum sentence hence it imposed the

sentence of 10 years’ imprisonment, five years of which was ordered to run
concurrently with the 15-year jail term for robbery with aggravating circumstances.

[26] The process which must be followed in placing an appeal before the court is
sourced from the provisions of the CPA. In the case of an appeal by an accused
person, it is s 316 which applies and if the State pursues the appeal, s 316B read with
s 316 applies.10 Chief amongst the grounds of appeal against the sentence raised by
the State is that the trial court erred in finding that the deceased was raped once and
had not been raped anally. The trial court dealt with the enquiry into the question
whether there had been multiple acts of rape when it considered the respondent’s
conviction. Based on its conclusion that the rape ‘was one continuous act [in] different
positions’, it found the respondent guilty on one count of rape.

[27] The State’s ground of appeal that there had been multiple acts of rape was not
competently placed before this Court for re-evaluation. Its contentions on this score
have a bearing on the respondent’s conviction, and no appeal by the State lies against
that part of the judgment. To illustrate the difficulty with the prosecution of this appeal
on the basis suggested by the State, I can do no better than refer to the apt example
made by the Constitutional Court in S v Nabolisa11 as follows:
‘Take, for instance, a case where the accused person applies for leave to appeal against
conviction and sentence. The trial court grants him or her leave in respect of conviction only.
He or she would not be allowed to prosecute an appeal against sentence because the scope
of his or her appeal is limited to conviction.’

[28] The well-established principle is that when a high court grants leave to appeal
to this Court it may limit the grounds of appeal to be addressed or it may grant leave
generally so that all the relevant issues might be canvassed. Where the high court has
limited the grounds of appeal this Court has no jurisdiction to expand the grounds of
appeal. If an appellant is dissatisfied with a high court’s decision to limit the grounds
of appeal his or her remedy is to petition this Court to expand the grounds of appeal,
not to appeal directly to this Court.12

10 Nabolisa v S [2013] ZACC 17; 2013 (2) SACR 221 (CC); 2013 (8) BCLR 964 (CC) para 75.
11 Ibid para 73.
12 Delport and Others v S [2014] ZASCA 197; [2015] 1 All SA 286 (SCA); 2015 (1) SACR 620 (SCA)
para 41.

[29] In my view, it is impermissible for the State, on an appeal against the sentence,
to seek a reversal of the trial court’s finding on issues having a bearing on the
conviction without having sought leave against the conviction through a reservation of
a point of law on them. Even though the trial court granted the State leave to appeal
against the sentence generally, it did not extend such leave to issues which fell within
the ambit of the respondent’s conviction. Therefore, it is not open to this Court to re-
evaluate whether there had been multiple acts of rape in this case. To hold otherwise
would lead to manifest prejudice to the respondent.

[30] It is so that the charge to which the respondent pleaded refers to several acts
of penetration, including anal penetration. In the end, he was convicted on one count
of rape. The offence attracts a minimum sentence of 10 years’ imprisonment for a first
offender.13 Therefore, the appeal by the State against the sentence should be
approached on that basis. This is regrettable because the trial court made factual
findings in error on a number of issues including whether the deceased suffered anal
penetration. The adjudication of rape offences calls for accurate understanding and
careful analysis of all the evidence, whereas those who are called upon to sentence
convicted offenders in such cases call for considerable reflection.14

[31] The evidence concerning anal penetration is so glaring that any reasonable
court would not have given the respondent any benefit of the doubt. That the deceased
did not report the anal penetration to Dr De Lange and Cst Prinsloo is of no moment.
It is to be remembered that the deceased was extremely reticent about her ordeal
because the respondent had threatened her with death if she were to report the matter.
The deceased had to be implored to report the rape to the police. Dr Kotzé explained
that ‘in this acute [stressful] situation it is not unusual that the history might lack some
detail’. It matters not that sister Qhathatsi did not specify in her report that the
deceased told her of the anal penetration. Of importance is that she examined the
deceased and recorded the anal lacerations in the medical report. The independent

13 In terms of s 51(2)(b) of the CLAA read with Part III of schedule 2, a term of 10 years’ imprisonment
is prescribed for a first offender, 15 years for a second offender, and 20 years for a third or subsequent
offender.
14 S v Vilakazi [2008] ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA); 2012 (6) SA
353 (SCA) para 21.

corroborative evidence of Dr Kotzé puts the matter beyond doubt that there had been
anal penetration.

[32] Clearly, a complete disregard of anal penetration by the trial court did not
accurately reflect the recorded evidence, which is lamentable, given that this would be
an aggravating issue. Non-consensual anal penetration of women and young girls
constitutes a form of violence against them, equal in intensity and impact to non-
consensual vaginal penetration.15  But for the reasons given above we are bound by
the findings made by the trial Court on this point.

[33] The State did not only rely on the multiple acts of rape in its contention that the
sentence was inordinately light. It advanced a number of aggravating circumstances
which, it submitted, were not properly considered by the trial court.

[34] Rape is undoubtedly a serious offence which invades the dignity, sexual
autonomy and privacy of its victims. The respondent graduated into being a menace
to society. He committed the offences three days following his release on parole. He
has a previous conviction for assault with intent to do grievous bodily harm, for which
he was sentenced to six months’ imprisonment. This suggests that he has a propensity
for violence. The high court found that ‘on the accepted evidence, it appears that the
accused planned meticulously his offence’. He entered the deceased’s workplace, an
isolated space, at the end of the business day, which is trespassing. He then subdued
her with threats of physical violence at knifepoint. The manner in which he forced the
deceased into different positions and repeatedly penetrated her showed a blatant
display of his aggression. During the entire episode, as his penis slid out, the deceased
said, it ignited the respondent’s ire. That the deceased was on her menstrual cycle did
not deter him. The trial court correctly labelled this a violation of the deceased’s
womanhood in the ghastliest manner. The deceased had three fresh bruises or burn
marks on her back caused by the carpet she was dragged and laid on during the rape.

15 Masiya v Director of Public Prosecution, Pretoria and Another (Centre for Applied Legal Studies and
Another, Amici Curiae) 2007 (5) SA 30 (CC); [2007] ZACC 9 (CC); 2007 (2) SACR 435 (CC); 2007 (8)
BCLR 827 (CC) para 37.

[35] The overwhelming expert evidence adduced provides an adequate measure of
the deleterious effect that the offence had upon the deceased. Dr De Lange says when
he examined her on 9 February 2017 she was hysterical. He saw her at regular
intervals after this date and had to give her calming medication because she suffered
from anxiety attacks and had emotional outbursts. He also gave her medicines for
head-aches, neck pain and nausea. On 20 February 2017 the deceased started
having convulsions and epileptic fits. She is reported to have appeared ‘very anxious
and frightened’. On her last days of life, after 20 February 2017, she was incoherent
in her speech and later was unresponsive to verbal communication. Increased tongue,
limbs and focal convulsions were also observed. She could not walk and had to be
carried. On 23 February 2017 she went into a coma and died the next day.

[36] Prof Richard John Nichol, a psychiatrist, with reference to the docket, noted
that two days following the rape the deceased had hypersomnia, excessive
sleepiness. Three days on she had episodes of irregular sleeping with ‘strong
emotional components’. Prof Nichol says that the anxiety and panic attacks would
have fuelled the events. Acute mental stress, negative emotions and psychological
trauma trigger atherothrombotic events (clot formation) and the possibility of venous
thromboembolism. Prof Nichol opined that not only was the medicine the trigger of the
thrombus events, so too was the acute stress. Dr Paulina Maria Van Zyl, a clinical
pharmacologist, intimated that apart from the medication, the other factors that could
have contributed to the clot formation include the trauma the deceased experienced
‘due to the violet manner in which she was treated during the rape.’ According to Dr
Van Zyl, the extreme anxiety was directly linked to rape. The stress hormone and
stress response were activated at all times. She went on to state that ‘there is literature
that shows that there is an association between psychological trauma and blood
clotting.
[37] Thus, there can be little question that the rape evoked ongoing severe
psychological and physical distress on the once industrious and perfectly healthy 21-
year old woman until her death 14 days later. This signifies the gravity of the offence
which ought to have been accorded sufficient weight by the trial court. On this score,

I can do no better than to refer to the remarks made by this Court in S v De Beer16
that:
'Rape is a topic that abounds with myths and misconceptions. It is a serious social problem
about which, fortunately, we are at last becoming concerned. The increasing attention given
to it has raised our national consciousness about what is always and foremost an aggressive
act. It is a violation that is invasive and dehumanising. The consequences for the rape victim
are severe and permanent….'

[38] The offences also caused considerable hardship on the deceased’s family. Her
father’s health condition is said to have been negatively affected and deteriorating. It
is remarkable that the respondent did not show any contrition and sought to do so
during the sentencing phase. This cannot be equated to genuine remorse and
flounders in the face of the weight of authority of this Court.17 All of the above are
serious aggravating circumstances.

[39] The trial court acknowledged that it was enjoined to strike a proper balance
between the Zinn18 triad of factors which consist of the crime, the criminal and the
interest of the society. Despite this, one searches in vain at the factors the trial court
considered in respect of the crime and its impact on the deceased. It also perfunctorily
referred to some of the aggravating factors and did not direct its mind to the interest
of society and the need for deterrence. This constituted a misdirection.

[40] In his cross-appeal, the respondent urged that his sentence be reduced to five
and 10 years’ imprisonment for rape and robbery with aggravating circumstances,
respectively. His argument, that the trial court erred in not finding substantial and
compelling circumstances present, which merited a deviation from the imposition of
the prescribed sentence under s 51(2)(b) of the CLAA, does not carry any persuasion.
As recited by the trial court, the respondent's personal circumstances were that he
was single with a minor child who lives with its grandmother. Prior to his arrest, he was
employed at a furniture store earning R250 per week. It was not contended that his
mitigating factors constituted substantial and compelling circumstances. Instead, it

16(SCA case No 121/2004, 12 November 2004)
17 S v Matyityi [2010] ZASCA 127; 2011 (1) SACR 40; [2010] 2 All SA 424 (SCA) (SCA) para 13.
18 S v Zinn 1969 (2) SA 537 (A); [1969] 3 All SA 57 (A).

was argued that, although the deceased was subjected to mental and physical trauma
following the rape, she did not sustain any injuries during the act.  This argument must
falter. This factor should be considered along with other relevant factors to conclude
whether there are substantial and compelling circumstances.19 An apparent lack of
physical injury to the complainant, without more, would not suffice.

[41] Insofar as the trial court reasoned that there were no substantial and compelling
circumstances present in this case, no cogent criticism can be sustained. In cases of
serious crime, the offender's personal circumstances are in themselves largely
immaterial to what the period of imprisonment should be.20

[42] The crimes which impair the dignity of women and children; which violate their
sexual autonomy and privacy rights, such as rape and other sexual offences, are
rampant in our society. Society craves justice and looks up to our courts to impose
sentences commensurate to the crime and fit the criminal.

[43] It is trite that punishment is pre-eminently a matter for the trial court's
discretion.21 The circumstances in which a court of appeal may interfere in the
sentencing discretion of a lower court are circumscribed. The principles were restated
in S v Malgas22 as follows:

‘. . . A court exercising appellate jurisdiction cannot, in the absence of 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 . . . 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 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”.’

19 S v SMM 2013 (2) SACR 292 (SCA) para 26.
20  Ibid fn 14 para 58.
21 S v Rabie 1975] 4 All SA 723 (A);1975 (4) SA 855 (A) at 857D-E.
22  S v Malgas 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222; [2001] 3 All SA 220 (A) para 12.

[44] As adumbrated above, the trial court imposed the 10-year statutory minimum
sentence for rape.  The fact that the law prescribes minimum sentences does not
prevent the court, in appropriate circumstances, from imposing a more severe
sentence. Following Malgas, this Court had occasion to consider the import of s 51(1),
51(2) and 51 (3) of the CLAA in S v Mthembu.23 The principles adverted to, apply with
equal force here with regard to the interpretation of s 51, in particular, the sentencing
discretion of the trial court when imposing a sentence greater than the statutory
minimum. Mthembu dealt with the question whether a court contemplating the
imposition of a sentence higher than the prescribed minimum sentence was obliged
to forewarn the accused of its intention. At the heart of that appeal was the correctness
of the decision in S v Mbatha24  where, amongst other matters, the full court of Kwa-
Zulu Natal Division held that the approach that had been laid down regarding
downward revisions from the minimum sentences was also correct when a court was
contemplating the imposition of a greater sentence than that prescribed.

[45] In Mthembu, paying particular respect to the provisions of s 51 of the CLAA,
this Court held:
‘[5] Thus far our courts have simply accepted that if, upon an evaluation of the cumulative
effect of all the circumstances of a case, a higher sentence was called for, there were no
constraints on its discretion to impose a sentence far in excess of the ordained minimum
(Director of Public Prosecutions, Transvaal v Venter 2009 (1) SACR 165 (SCA) ([2008] 4 All
SA 132) para 19)…
[8] It is noteworthy that s 51 is headed 'Discretionary minimum sentences for certain serious
offences'. That, together with repeated reference to the words 'not less than' in ss (2), is the
clearest indicator that the legislature did not intend to fetter the discretion of the sentencing
court…
[11] Plainly what we are dealing with is a legislative provision that fetters only partially the
sentencing discretion of the court. That much emerges from ss (3)(a) which entitles a court to
impose a lesser sentence than the sentence prescribed if it is satisfied that substantial and
compelling circumstances exist which justify the imposition of such lesser sentence. It follows
that, even were a court to conclude that substantial and compelling circumstances do indeed
exist, it may in the exercise of its sentencing discretion nonetheless impose the prescribed
minimum or such higher sentence as to it appears just. (Emphasis added.)

23 2012 (1) SACR 517 (SCA) paras 5-13 and 18.
24 2009 (2) SACR 623 (KZP), see also Mthembu fn 23 para 4.

…
[13] Whilst ss (3)(a) obliges a sentencing court to enter the circumstances on the record if it is
minded to impose a lesser sentence than that ordained by the legislature, there is no indication
in the language of that provision that a similar course must be followed where a more
severe sentence is contemplated. (Emphasis added.)
And at para 18 it was there pronounced:
[18]…After all, any sentence imposed, like any other conclusion, should be properly motivated
(S v Maake 2011 (1) SACR 263 (SCA). And we should not lose from sight that our appellate
courts have, in terms of long standing practice, reserved for themselves the right to interfere
where a sentence has been vitiated by a material misdirection or where it is shocking or
startlingly inappropriate…a 'vigilant examination of the relevant circumstances' is required…’

[46] The legislature has deliberately left it to the courts to decide whether the
circumstances of any particular case call for a departure from the prescribed sentence
in view of the obvious injustice implicit in an obligation to impose only the prescribed
sentences in any given circumstance.25 The courts are freer to depart from the
prescribed sentences than has been supposed in some of the previously decided
cases.26

[47] What is clear from Mthembu is that where there are no substantial and
compelling circumstances the trial court retains its sentencing discretion. If the trial
court has imposed the minimum sentence in terms of the CLAA an appellate court
may still determine whether the minimum prescribed sentence  is disturbingly
inappropriate and accordingly determine the appropriate sentence where the minimum
sentence imposed is grossly disproportionate. There is nothing in the CLAA which
posits that a deviation from the prescribed minimum sentences be justified in the same
way as would be the case where a lesser punishment is called for. Such a construction
would manifestly inhibit the object of the CLAA. In addition, on the plain reading of the
CLAA, there is nothing indicating that the aggravating circumstances of this case have
already been factored in the prescribed minimum sentence of 10 years as the second
judgment suggests. This Court in S v Kolea27 held that the term of 10 years'

25 See Malgas fn 22 para 18; Director of Public Prosecutions, Transvaal v Venter [2008] ZASCA 76;
[2008] 4 All SA 132 (SCA); 2009 (1) SACR 165 (SCA) para 17; Mthembu fn 23 para 10.
26 See Malgas fn 22 para 25; Mthembu fn 23 para 10.
27 S v Kolea [2012] ZASCA 199 (SCA); 2013 (1) SACR 409 (SCA) para 17.

imprisonment referred to in s 51 (2) is the minimum sentence that can be imposed.
This means that any sentence in excess of 10 years' imprisonment, and possibly even
life imprisonment, can be imposed by a court having jurisdiction to do so and having
had regard to the cumulative effect of all the circumstances of the case. This was
echoed in Director of Public Prosecutions, Transvaal v Venter,28 when increasing the
sentence imposed by the trial court, in this terms:
‘It needs to be borne in mind that the sentences provided for in the Act are minimum sentences
for the prescribed offences and Malgas was directed to whether a lower sentence might be
called for in a particular case. But an evaluation of the cumulative effect of all the
circumstances, in accordance with the approach in that case, might well indicate that a higher
sentence is called for.’ (Emphasis added.)

[48] The holding in Mthembu (supra) is dispositive of the discretion enjoyed by a
sentencing court to impose a sentence above the statutory minimum. It specifically
declined to adopt the reasoning in Mbatha. It is so that this Court in Maake made the
following remarks:
‘[28] The safeguards in relation to minimum sentences must a fortiori apply to the
contemplated imposition of a maximum sentence. In relation to motivating the imposition of a
maximum sentence, it is necessary to have regard to what was stated in S v Mbatha 2009 (2)
SACR 623 (KZP) (at 631f – j):
'On that approach there is as much a necessity for the court in its judgment on sentence to identify on
the record the aggravating circumstances that take the case out of the ordinary, as there is for it in the
converse situation to identify those substantial and compelling circumstances that warrant the
imposition of a lesser sentence than the prescribed minimum. The trial judge should identify the
circumstances that impel her or him to impose a sentence greater than the prescribed minimum and
explain why they render the particular case one where a departure from the prescribed sentence is
justified. The factors that render the accused more morally blameworthy must be clearly articulated. . .
. Otherwise the whole purpose of a reasonably consistent and standardised approach to sentence in
the case of the most serious crimes will be defeated, as it will be open to those judges who have
particularly stern views on sentence, and regard Parliament's response to serious crime as inadequate,
to impose those views in disregard of the purpose of the legislation.'

[49] In respect of the above finding in Maake, this Court in Mthembu said the
following:

28 Fn 25 para 19.

‘[19]… Maake, in support of the broad hypothesis that conclusions by a court should be
properly motivated, called in aid Mbatha. It was submitted to us that Maake cited Mbatha with
apparent approval and that that constitutes an endorsement of its correctness on this score.
We do not agree. Maake did not subject the judgment in Mbatha to careful scrutiny, nor was
the correctness of its conclusion or reasoning properly considered. It sought support
from Mbatha in a wholly different context.’
Maake dealt at length with the salutary practice for judicial officers to provide reasons
to substantiate their conclusions. Mthembu confined the ratio of Maake to this well
understood proposition. As the holding in Mthembu made clear, the authority of Maake
does not extend further. I again endorse the position adopted in Mthembu as to the
basis upon which a sentencing court may exercise its discretion to increase a sentence
above the prescribed minimum, and I apply it in this judgment.

[50] The position may thus be stated as follows. First, Parliament has legislated a
minimum sentencing regime in respect of particular crimes to reflect the seriousness
with which such offences should be considered by the courts when imposing a
sentence. Second, this legislative regime imposes a minimum sentence, absent
substantial and compelling circumstances. The presence of such circumstances
requires the downward revision of the sentence below the prescribed minimum, so as
to ensure that sentencing is not rendered disproportionate, and hence
unconstitutional. Third, a prescribed minimum sentence does not prevent a sentencing
court from imposing a sentence above the prescribed minimum, if a careful
consideration of all the factors relevant to the imposition of a fair and proportionate
sentence warrants a sentence above the prescribed minimum. Fourth, the sentencing
court’s discretion to determine the correct sentence is not constrained by the
requirement that it must find substantial and compelling circumstances before a
sentence is imposed that is above the prescribed minimum. That would entail a
minimum sentence being a presumptive sentence, which it is not. The sentencing
court will take account of the fact that the prescribed sentence, at a minimum, reflects
the gravity that Parliament attaches to the crime. However, the variability of crimes
and the offenders who commit crimes is legion. Hence, the sentencing court, if it
considers that the crime warrants a sentence above the prescribed minimum, should
exercise its discretion to do so, taking account of the guidance provided in Malgas and
the overarching constitutional constraint of proportionality. Fifth, if an appellate court

considers that the sentencing court has failed to impose a sentence above the
prescribed minimum when it should have done so, the appellate court may only
intervene if the imposition of the prescribed minimum sentence is grossly
disproportionate.

[51] It is so that sometimes decided cases provide useful guidance where they show
a succession of punishment imposed for a particular type of crime. However, in  S v
Sinden29 this Court added that it is an idle exercise to match the colours of the case at
hand and the colours of other cases with the object of arriving at an appropriate
sentence. Each case must be determined on its peculiar facts.

[52] Insofar as reference is made in the second judgment that the multiple rapes in
S v Swart, S v Nkomo, S v Fifana and Mhlongo v The State30 were accompanied by
far more humiliating and gruesome circumstances than in the present case and that
none of the perpetrators were sentenced to anything more than 18 years’
imprisonment, caution should be exercised in making comparative judgments of the
gravity of offences committed in other cases where all the factual circumstances are
difficult to compare. As stated by this Court in S v Kwanape,31 the fact that more
serious cases than the one under consideration may be found is not decisive. The
enquiry should be whether the circumstances are serious enough that they justify the
imposition of a heavy penalty in a particular case, and not whether the level of justified
outrage is equal to or not as severe as in other cases in which a lesser penalty was
imposed. This Court has cautioned against the danger that lies in that approach.32
There comes a point beyond which incremental gradations of judicial outrage make
little sense. Where a rape, as here, is a cruel infliction of grave harm the sentence
must reflect the gravity of the offence. This bearing in mind that the consistency
required in sentencing does not equal uniformity.
[53] A sentence should be individualised to fit the crime, the criminal and the interest
of society. A court should not shy away from imposing a sentence that accounts for all
the triad of factors on the basis that it would be ‘tantamount to breaking’ the accused,

29 1995 (2) SACR 704 (A) at 708a; see also S v Fraser 1987 (2) SA 859 (A) at 863C – D.
30 S v Swart 2004 (2) SACR 370 (SCA); S v Nkomo [2007] 3 All SA 596 (SCA); 2007 (2) SACR 198
(SCA); S v Fifana and Others [2008] ZAGPHC 326; Mhlongo v The State [2016] ZASCA 152
31 S v Kwanape  [2012] ZASCA 168; 2014 (1) SACR 405 (SCA) para 22.
32 S v Mahomotsa 2002 (2) SACR 435 (SCA) para 19.

as the trial court reasoned. The respondent should atone for his actions. I am of the
view that, having regard to the cumulative effect of all the circumstances and the
serious aggravating features of this case, the trial court could not reasonably have
imposed the sentence that it did. In addition, the minimum sentence imposed in terms
of s 51(2)(b) of the CLAA is 'disturbingly inappropriate’ and markedly out of kilter with
the sentence I would have imposed. In sum, the deceased suffered great anguish:
there had been, among other harms, an intrusion by a stranger into her private
workplace; the explicit threat of extreme violence against her; the ongoing use of
coercion and rape in several humiliating and undoubtedly painful forms; and the ordeal
had a devastating psychological impact. This justifies our interference to prevent an
injustice. In my view, 18 years’ imprisonment for rape would best serve all the
objectives of punishment. The sentence imposed for robbery with aggravating
circumstances need not be disturbed. It follows that the State’s appeal against the
sentence must be upheld and the respondent’s cross-appeal dismissed. In the result,
the following order is made:
1.
The appeal by the State to reserve questions of law is dismissed.
2.
The respondent’s cross-appeal against the conviction and sentence is
dismissed.
3.
The sentence on count 2 stands.
4.
The State’s appeal against the sentence on count 1 is upheld.
5.
The sentence of 10 years’ imprisonment on count 1 is set aside and in its place

is substituted the following:
‘The accused is sentenced to 18 years’ imprisonment.
The 13 years’ imprisonment on count 2 shall run concurrently with the sentence
on count 1.’
6.
The substituted sentence is antedated to 27 September 2018 in terms of s 282
of the Criminal Procedure Act 51 of 1977.

_______________________
M V PHATSHOANE
ACTING JUDGE OF APPEAL

Makgoka JA (Kgoele AJA concurring):
[54] I have read the judgment prepared by my colleague, Phatshoane AJA. I agree
with the order of the judgment, except in respect of the sentence on the rape count.
As already mentioned in the majority judgment, the rape attracted the prescribed
minimum sentence of 10 years’ imprisonment in terms of s 51(2) of the Criminal Law
Amendment Act 105 of 1997 (the Act),33 as the respondent was a first offender. Having
found, in terms of s 51(3)(a) of the Act, that no ‘substantial and compelling
circumstances’ existed for the imposition of a lesser sentence, the trial court imposed
the prescribed minimum sentence of 10 years’ imprisonment. Five of those years were
ordered to run concurrently with 15 years’ imprisonment imposed in respect of the
robbery. Thus the effective sentence was 20 years’ imprisonment.
[55] On appeal, the State contends the sentence imposed in respect of the rape
count is lenient. The majority judgment agrees, and sets aside the sentence of
10 years’ imprisonment imposed by the trial court and substitutes it with a sentence of
18 years’ imprisonment. 13 years of the sentence imposed for the robbery is ordered
to run concurrently with the substituted sentence for rape, which leaves the effective
sentence of 20 years’ intact.
[56] I respectfully disagree with the substituted sentence and the reasoning
underpinning it. In my view, there is no basis to interfere with the sentence imposed
by the trial court. My difference with the majority judgment lies in our respective
answers to the following question: is a sentencing court which imposes a sentence
higher than the prescribed minimum sentence, enjoined to demonstrate factors which
render the prescribed minimum sentence inappropriate? The question was differently
formulated by the full court in S v Mbatha 2009 (2) SACR 623 (KZP) para 12 thus:
‘…[D]oes the court simply have a free and unbounded discretion once it concludes that a
sentence greater than the statutory minimum is appropriate? What influence does the
statutory minimum have in the determination of sentence in such a case?

33 This is because there are no aggravated circumstances referred to in Schedule 2 Part I read with s
51(1) of the Act, for which life imprisonment is prescribed.

[57] I answer that question in the affirmative. The majority judgment holds the
opposite view. It places much store on the dictum in para 13 of S v Mthembu [2011]
ZASCA 179; 2012 (1) SACR 517 (SCA) that, whilst ss 3(a) obliges a sentencing court
to enter the circumstances on the record if it is minded to impose a lesser sentence
than that ordained by the legislature, there is no indication in the language of that
provision that a similar course must be followed where a more severe sentence is
contemplated. These remarks should be understood in their proper context, taking
into account (a) what the issue in that case was, and (b) the seemingly contrary views
expressed in two other decisions of this Court, namely, Maake v Director of Public
Prosecutions [2010] ZASCA 51; 2011 (1) SACR 263 (SCA); [2011] 1 All SA 460 (SCA)
and S v Mathebula [2011] ZASCA 165; 2012 (1) SACR 374 (SCA).

[58] The main issue in Mthembu was whether a court contemplating to impose a
sentence higher than the prescribed minimum sentence was obliged to forewarn the
accused of its intention to do so. This had been a finding, among others, of the full
court in Mbatha. This Court (in Mthembu) ruled that Mbatha was wrongly decided on
this issue, and that there is no such a duty on a court to forewarn an accused. About
this finding, there is nothing controversial, as there are no conflicting pronouncements
by this Court on it, and it does not arise in this case.

[59] Of relevance to the present case, and which has resulted in conflicting
pronouncements by this Court, is how the full court in Mbatha had answered the
question referred to in para 56 above. Wallis J, writing for the unanimous full court,
said the following at paras 14 and 15:
‘I appreciate that the Supreme Court of Appeal laid down this approach [in Malgas] in the
context of cases concerned with a departure from the statutory minimum sentence by virtue
of the presence of substantial and compelling circumstances. I am also alive to the fact that
the legislation contains no provision corresponding to s 51(3)(a) when the departure from the
prescribed minimum sentence is upwards rather than downwards. Nonetheless it seems to
me that this must remain the correct approach when the court is contemplating imposing a
greater sentence than the prescribed minimum, in the same way as where it is contemplating
imposing a lesser sentence. Otherwise, the process of determining the appropriate sentence
will be bifurcated in a most undesirable way… If the approach is different from that which I
have indicated it will lead to the following situation. The court will first determine whether the

case is one falling within the minimum sentencing legislation. If it is, then it will enquire whether
there are substantial and compelling circumstances justifying the imposition of a lesser
sentence. If it concludes that there are none, it will then abandon all that has gone before and
simply determine in the exercise of its discretion an appropriate sentence, having no regard
to the legislation.
In my view such an approach disregards one of the purposes of the minimum sentencing
legislation, which is to provide a measure of uniformity and not simply to limit in one direction
the discretion of courts in imposing sentence in particular cases, whilst leaving them entirely
at large in the other direction…’
[60] And at para 20 Wallis J further explained:
‘On that approach there is as much a necessity for the court in its judgment on sentence to
identify on the record the aggravating circumstances that take the case out of the ordinary,
as there is for it in the converse situation to identify those substantial and compelling
circumstances that warrant the imposition of a lesser sentence than the prescribed minimum.
The trial judge should identify the circumstances that impel her or him to impose a sentence
greater than the prescribed minimum and explain why they render the particular case one
where a departure from the prescribed sentence is justified. The factors that render the
accused more morally blameworthy must be clearly articulated. . . . Otherwise the whole
purpose of a reasonably consistent and standardised approach to sentence in the case of the
most serious crimes will be defeated, as it will open to those judges who have particularly
stern views on sentence, and regard Parliament’s response to serious crime as inadequate,
to impose those views in disregard of the purpose of the legislation.’
[61] The findings in para 20 of Mbatha were cited with approval by this Court in
Maake and Mathebula. In Maake (at para 28) this Court said:
‘The safeguards in relation to minimum sentences must a fortiori apply to the contemplated
imposition of a maximum sentence. In relation to motivating the imposition of a maximum
sentence it is necessary to have regard to what was stated in S v Mbatha 2009 (2) SACR 623
(KZP) (at 631fj)…’
And in Mathebula (at para 11):
‘The proper approach to be adopted by a sentencing court which contemplates to impose
higher than the prescribed minimum sentence seems to me to be the one adumbrated by
Wallis J in S v Mbatha 2009 (2) SACR 623 (KZP) para 20… [T]his salutary approach was
endorsed in [Maake] (above) para 28…’ (Emphasis added.)

[62] As already mentioned, this Court in Mthembu (in the dictum at para 13) declined
to endorse the  findings in para 20 of Mbatha. About the endorsement of those findings
in Maake, this Court said the following at para 19:
‘One further aspect merits mention. Maake, in support of the broad hypothesis that
conclusions by a court should be properly motivated, called in aid Mbatha. It was submitted
to us that Maake cited Mbatha with apparent approval and that that constitutes an
endorsement of its correctness on this score. We do not agree. Maake did not subject the
judgment in Mbatha to careful scrutiny nor was the correctness of its conclusion or reasoning
properly considered. It sought support from Mbatha in a wholly different context.’

[63] It is significant that despite the misgivings expressed in Mthembu about the
correctness of Maake endorsing para 20 of Mbatha, this Court did not overturn Maake
as being clearly wrong on the issue. The effect is that there are three decisions of this
Court in seeming disharmony – Maake and Mathebula expressly endorsing those
views, and Mthembu disapproving of them. This is the context in which Mthembu is to
be understood. Incidentally, Mathebula and Mthembu, expressing contrary views on
the issue, were delivered on the same day ie 29 September 2011, the two cases
having been heard on 5 and 16 September 2011, respectively.

[64] To the extent of this seeming disharmony between Maake and Mathebula on
the one hand, and Mthembu, on the the other, Mthembu does not seem to be the final
and authoritative pronouncement on the issue. I therefore respectfully disagree with
the proposition in the majority judgment that Mthembu is dispositive of the issue. It
could only be so had Mthembu overturned Maake. As mentioned already, it did not. In
the light of the seeming disharmony pointed out, it seems that the jury is still out on
the correctness of the holding in para 20 of Mbatha.

[65] As I see it, where a minimum sentence is prescribed in the Act, it is not enough
for a court to simply invoke its ‘inherent jurisdiction’ to deviate from the prescribed
minimum sentence and impose a higher one. Something more is needed to justify
departure from the prescribed minimum sentence to a higher one. There must be an
objective and juridical basis to ensure that imposing a sentence higher  than the
prescribed minimum is not undertaken on an undefined basis, and influenced by a
particular judicial officer’s subjective views as to what is appropriate. Where a court
deviates downward, the basis for doing so is found in s 51(3)(a) of the Act, in terms of

which a court may deviate from the prescribed minimum sentence and impose a lesser
sentence, if it finds ‘substantial and compelling circumstances’ to exist.
[66] This proviso serves as a jurisdictional factor without which, a court is obliged to
impose the prescribed minimum sentence, subject to the caveat enunciated in S v
Malgas 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222; [2001] 3 All SA 220 (A).34 In
Malgas, considering an appeal to reduce the prescribed minimum sentence of life
imprisonment, this Court cautioned that the specified prescribed minimum sentences
were not to be departed from lightly and for flimsy reasons which could not withstand
scrutiny.35
[67] To my mind, the proviso in s 51(3)(a) and the dictum in Malgas referred to
above, is a good pointer at the other end of the sentencing equilibrium.  Thus, where
a court is called upon to impose a sentence higher than that prescribed by the Act,
weighty considerations are required to demonstrate the out-of- ordinary facts of the
case which render the prescribed minimum sentence inadequate. By prescribing
minimum sentences in respect of particular offences, the legislature has set normative
benchmarks against which sentencing discretion should be exercised.
[68] Accordingly, in my view, when a court imposes a sentence higher than the
prescribed minimum sentence, it must bear the normative benchmark in mind, and
demonstrate the circumstances of the case which takes it out of the ordinary to justify
a sentence higher than the prescribed minimum. Thus, where there is a deviation from
the prescribed minimum sentences, either downward or upward, the extent of the
deviation requires justification. To my mind, the greater the deviation the greater the
burden of justification. In my view, this threshold is even higher where a court of appeal

34 In S v Malgas 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222; [2001] 3 All SA 220 (A) para 22 it was
explained: ‘The greater the sense of unease a court feels about the imposition of a prescribed sentence,
the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the point
where unease has hardened into a conviction that an injustice will be done, that can only be because it
is satisfied that the circumstances of the particular case render the prescribed sentence unjust or, as
some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of
society. If that is the result of a consideration of the circumstances the court is entitled to characterise
them as substantial and compelling and such as to justify the imposition of a lesser sentence’.
35 Fn 3 above para 11.

is asked to interfere with the exercise of a discretion by a trial court, which, as already
stated, is subject to a stringent test.
[69] Before I turn now to the issues in this case, it is necessary to restate trite
principles which govern an appeal court’s powers in respect of the sentence imposed
by the trial court. It is settled that sentencing is a matter which falls pre-eminently within
the discretion of a trial court. A court of appeal can interfere with a sentence imposed
by a trial court only in two situations. First, where material misdirection by the trial court
vitiates its exercise of that discretion. The nature of the misdirection referred to here is
one envisaged in S v Pillay 1977 (4) SA 531 (A) at 535E-F, being ‘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’. Second, where
the disparity between the sentence imposed by the trial court and that which the court
of appeal would have imposed had it been the trial court, is so marked that it can
properly be described as ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’.36 Where
minimum sentences are prescribed for particular offences identified in the Act, there
is an added consideration in that a trial court imposes a sentence within a particular
legislative framework.
[70] Another important sentencing principle is this. In appeals against sentence,
where it is contended that a sentence by the trial court is either excessive or lenient,
the appellate court is not at large in the sense in which it is in a situation where
misdirection is the basis of the appeal.37 Thus, in the former situation, an appellate
court can only interfere if the sentence is one that no reasonable court would have
imposed.
[71] In the present case, the State, correctly in my view, does not contend that the
trial court misdirected itself when it imposed the prescribed minimum sentence.
Instead, the assertion is that, given the circumstances of the case, the prescribed
minimum sentence is inadequate, and that a higher sentence should have been
imposed. Thus, the two issues are whether: (a) there are circumstances justifying a

36 S v Sadler 2000 (1) SACR 331 (SCA); [2000] 2 All SA 121 (A) para 8; Cwele and Another v S [2012]
ZASCA 155; [2012] 4 All SA 497 (SCA); 2013 (1) SACR 478 (SCA) para 33; S v Swart 2000 (2) SACR
566 (SCA) para 21; S v Coetzee 2010 (1) SACR 176 (SCA); S v Matlala 2003 (1) SACR 80 (SCA).
37 Ibid para 12.

sentence higher than the prescribed minimum sentence of 10 years’ imprisonment;
and (b) the sentence imposed by the trial court is one that no reasonable court would
have imposed in the circumstances. I consider them, in turn.

Are there circumstances justifying a higher sentence?
[72] The majority judgment mentions several factors to justify a higher sentence.
They are that: the respondent has a previous conviction for assault with intent to do
grievous bodily harm; the respondent had ‘meticulously’ planned the rape; the
respondent ‘trespassed’ onto the premises where the rape took place; the deceased
was subdued with threats of physical violence at knifepoint; the respondent penetrated
the deceased in different positions thereby showed a ‘blatant display of aggression’;
the deceased was on her menstrual cycle; the rape was a violation of the deceased’s
womanhood in ‘the ghastliest manner’; the deceased had three fresh bruises or burn
marks on her back caused by the carpet she laid on during the rape acts; the deceased
suffered severe physical and mental distress.
[73] In my view, none of these aggravating factors, either individually or cumulatively
with others, constitutes a basis for a higher sentence. I should not be understood to
say that these are not important as aggravating factors in considering sentence. What
I emphasise is that they are inherent in most rapes. They are integral features of the
offence of rape, and their presence is already reflected in the prescribed minimum
sentences decreed in s 51(2) and, in particular, the sentence of 10 years’
imprisonment for rape simpliciter, with which we are concerned. Thus, they cannot be
used as justification for increasing the sentences further. The same applies to an
accused, who cannot advance the fact that he or she is a first offender as a basis to
reduce the prescribed minimum sentence, as this has already been factored in by the
legislature. Thus, in the absence of the aggravated factors mentioned in s 51(1) which
would attract life imprisonment, the prescribed minimum sentence of 10 years’
imprisonment must, subject to the Malgas caveat, ordinarily be imposed.
[74] I briefly comment on some of the factors mentioned in the majority judgment as
being sufficient to impose a higher sentence, and endeavour to show that this is not
justified. In almost all the rapes, either a weapon or actual violence is used to subdue

a complainant’s resistance. There is no evidence that the offences were ‘meticulously
planned’. The trial court mentioned this without reference to any  factual or
circumstantial basis from the evidence on record. But even if they were, there are few
rapes that occur spontaneously. However, whether planned or spontaneous, rape
remains abhorrent. The fact that one is commited without planning does not make it
less serious. Thus, the issue of planning is a neutral factor. As to ‘trespassing’, most
rapes occur in the complainant’s homes or on private properties. It is a factor inherent
in the crime of rape.
[75] With regard to ‘repeated acts of penetration’, on a careful reading of the
deceased’s statement, it seems that the repeated acts of penetration had to do with
the fact that the respondent’s penis kept sliding out, and less to do with demonstration
of aggression. But, once more, aggression is inherent in the offence of rape, as does
the fact that the deceased’s womanhood is violated ‘in a ghastly’ manner. All rapes
against women, irrespective of the circumstances in which they take place, fit that
description. Similarly, the fact the deceased suffered bruises or marks on her back is
an inherent incidence of the violent nature of rape, which, like all other factors
mentioned above, have been factored in by the legislature in the prescribed minimum
sentence of 10 years’ imprisonment.
[76] As to the impact of the rape on the deceased, on the face of it, the death of the
deceased itself might be said to constitute a factor that should move a court to impose
a higher sentence. It must be accepted that every rape would have negative
psychological effect on those who survive the horrific ordeal. It is here where a proper
and dispassionate appraisal of the facts is called for.
[77] It is common cause that a few hours after the rape, the deceased was placed
on a cautionary treatment consisting of anti-retroviral drugs and antibiotics. At that
stage, the deceased had been using a contraceptive pill called Yaz. The deceased’s
body reacted negatively to this combination of drugs and the contraceptive pill.
According to the deceased’s sister, the deceased experienced extreme nausea shortly
after she started using the initial ARV regime. It got worse when a further ARV regime
was added to the initial ones. This eventually led to the deceased’s death, the cause
of which was recorded as cerebral venous sinus thrombosis.

[78] It was further common cause during the trial that had the deceased not reacted
negatively to the combination of the prescribed medications, it is conceivable that she
would not have died. A cerebral venous sinus thrombosis occurs when a blood clot
forms in the brain’s venous sinuses and prevents blood from draining out of the brain.
A haemorrhage forms when the blood cells break and leak blood into the brain tissues.
According to Dr Paulina van Zyl, a clinical pharmacologist,38 who testified during the
trial that the condition was caused by a combination of ARV drugs, antibiotics and the
contraceptive pill the deceased had been using.
[79] As a result of the deceased’s immediate negative reaction to the drugs, and her
unfortunate and untimely death, the expert evidence before the trial court focused on
the pathological impact of the drugs on the deceased, rather than the nature and extent
of the psychological impact of the rape on her. The limited evidence of the
psychological impact is that the deceased had acute stress disorder. She was very
fearful and would not leave her home unless accompanied by a person known to her.
She also had episodes of insomnia, although this could be attributed to the effect of
the medication she had been prescribed. But, on the whole, the factors mentioned in
the majority judgment as having a deleterious psychological effect on the deceased
are the predictable, natural consequences to be expected of a traumatic event such
as rape. They do not add to the respondent’s moral blameworthiness as to justify a
sentence higher than the prescribed minimum sentence.
[80] Whilst the death of the deceased is a factor that should undoubtedly be borne
in mind in considering sentence, it must never displace the need for a proper and
balanced approach. Ordinarily, one does not expect a rape incident such as the one
in the present case to result in the chain of events that lead to death. It is important to
emphasise that the deceased did not die from the injuries sustained during the rape,
but as a result of the precautionary medical intervention following the rape. Indeed,
during rape itself, the deceased suffered no more than the bruises on her back and on
her genital organs, which, as I have said, are inherent in the offence of rape.

38 This is a specialist in the study of interaction between humans and medicine.

[81] There is therefore a point beyond which the respondent cannot be sentenced
for the chain of events which followed the rape. The respondent’s causal liability ends
where the effect of the ARVs begins, which, as mentioned already, was immediate.
Any sentence which ignores this fine line, is likely to result in the respondent indirectly
being punished for the tragic death of the deceased, for which he was acquitted.
Simply put, the respondent can only be punished for rape simpliciter, and its
predictable, inherent consequences, which unfortunately do not include death. Viewed
in this light, the death of the deceased, tragic and unfortunate as it is, is not a factor
which would justify the imposition of a higher sentence. The upshot of all of the above
is that there is no basis to interfere with the sentence imposed by the trial court.
[82] I need to briefly comment on the majority judgment’s criticism of the trial court’s
finding that there was no anal penetration. In paras 25-30 the majority judgment
explains why it is not competent for this Court to take into account anal penetration in
considering sentence. That reasoning, is with respect, correct. That should be the end
of the matter. But the majority judgment proceeds to critisise the trial court’s decision
to afford the respondent the benefit of the doubt in this respect, and actually make a
definitive finding that there was anal penetration. In my view, this is unnecessary, and
serves no purpose, given the acceptance, for the reasons given, that there is nothing
this Court can do about this issue. The issue is therefore irrelevant to the consideration
of sentence on appeal.
Is the sentence imposed by the trial court one which no reasonable court would
have imposed?
[83] The threshold to establish that the prescribed minimum sentence of 10 years’
imprisonment is so lenient that no reasonable court would have imposed it, is self-
evidently high. A court of appeal should not easily conclude that the requisite threshold
has been reached in a particular case. This is for the simple reason that, absent
substantial and compelling circumstances, and subject to the Malgas caveat referred
to earlier, the imposition of a prescribed minimum sentence is deemed adequate and
reasonable.
[84] In the context of s 51 of the Act, there are further considerations why the
sentence of 18 years’ imprisonment is disproportionate. The prescribed minimum

sentence for murder in terms of s 51(2) of the Act is 15 years’ imprisonment for a first
offender. This is the sentence the respondent would have faced had he been convicted
of murder as initially charged. On the approach of the majority judgment, the
respondent would have been sentenced to 15 years for murder and 18 years for rape.
This would have been an incongruous outcome, as murder, being the capital offence,
must perforce carry the heavier of the two sentences. It is also worth noting that the
sentence of 18 years’ imprisonment is close to the sentence prescribed for murder
where an accused is a second offender, which is 20 years. With respect, I do not think
this can be justified for rape simpliciter, the specific circumstances of the rape in this
case nothwithstanding. As alluded earlier, care must be taken that the respondent is
not unwittingly sentenced for the death of the deceased. He was charged with murder,
but acquitted of that charge.
[85] What is more, it must be borne in mind that the legislature has consciously not
made any gradation of determinate sentences for rape. The prescribed minimum
sentence of 10 years’ imprisonment progresses immediately to life imprisonment once
any of the aggravating features is present.39 Viewed in that light, the sentence of
18 years’ imprisonment imposed by the majority judgment seems to be, with respect,
an impermissible judicial intervention and an attempt to fill a deliberate aperture
created by the legislature.
[86] I therefore conclude that the sentence of 10 years’ imprisonment imposed by
the trial court is not such that no court acting reasonably, would have imposed it.
Granted, another court might have considered a higher sentence.  But as emphasised
earlier, this is not the test on appeal. It is not about what the appeal court prefers, but
whether a court acting reasonably, would have imposed the impugned sentence.
Whether the sentence imposed by the trial court in the present case can be said to be
unreasonable in the sense envisaged in the authorities, can also be tested with
reference to sentences imposed in far more aggravated circumstances than the
present case, which I consider below.

39 See the observation in S v Vilakazi [2008] ZASCA 87; 2009 (1) SACR 552 (SCA); [2008] 4 All SA
396 (SCA); 2012 (6) SA 353 (SCA) para 13 where the gap was described as ‘striking’.

[87] I refer to previous cases conscious of the fact that sentences imposed in such
cases can only serve as mere guidelines. As this Court explained in S v Sinden 1995
(2) SACR 704 (A) at 708A:
‘Decided cases dealing with sentence may be of value also as providing guidelines for the trial
court’s exercise of discretion (see S v S 1977 (3) SA 830 (A)) and they sometimes provide
useful guidance where they show a succession of punishment imposed for a particular type of
crime. (See R v Karg 1961 (1) SA 231 (A) at 236G). But it is an idle exercise to match the
colours of the case at hand and the colours of other cases with the object of arriving at an
appropriate sentence. “(E)ach case should be dealt with on its own facts, connected with the
crime and the criminal . . ..”’
In S v D 1995 (1) SACR 259 (A) at 260e, it was stated that ‘decided cases on sentence
provide guidelines, not straightjackets’. And, in S v PB 2013 (2) SACR 533 (SCA)  (at
para 16) this Court cautioned against a slavish following of decided cases on
sentences, which could result in an abdication by the court of ‘its duty and discretion
to consider sentence untrammeled by sentences imposed by another court, albeit in a
similar case’. Ultimately each case must be decided in the light of its peculiar facts.40
[88] On the other hand, whilst sentence is always individualised and bound to the
facts of a particular case, value can be gained by considering sentences imposed in
comparable cases.41 For, as pointed out in Malgas at para 21:
‘It would be foolish of course, to refuse to acknowledge that there is an abiding reality which
cannot be wished away, namely, an understandable tendency for a court to use, even if only
as a starting point, past sentencing patterns as a provisional standard for comparison when
deciding whether a prescribed sentence should be regarded as unjust.’
[89] With these dictates in mind, I consider a few cases.
(a) I commence with S v Swart 2004 (2) SACR 370 (SCA), where this Court remarked
that the respondent had subjected the complainant to ‘extreme humiliation and
degradation’. The respondent and the complainant lived on the same property as
tenants but were not used to each other. One evening, while the complainant was
asleep, the respondent, who was drunk, broke into her room. He hit her in the face,

40 See S v Kwanape [2012] ZASCA 168; 2014 (1) SACR 405 (SCA) para 16.
41 Tiry and Others v S [2020] ZASCA 137; [2021] 1 All SA 80 (SCA); 2021 (1) SACR 349 (SCA) para
120.

and hurled profanities at her. He forced her legs apart and pinned her down and
tried to penetrate her vaginally, but his penis was not sufficiently erect, so he
pushed one of her legs up behind her head and then succeeded in penetrating her.
He later dragged the complainant by her hair to the kitchen where he forced her to
smear margarine on his penis and on her vagina. All the time he had her in his
control, holding her by her hair and pulling her about by it.
Still pulling the complainant by her hair he dragged her to the adjoining bathroom
where he pushed her over the bath and penetrated her anally. That caused pain to
the complainant and when she screamed, the respondent hit her hard on one of
her ears. The complainant felt a bowel movement and begged to use the toilet. The
respondent, still pulling her by the hair, dragged her from the bath and pushed her
onto the toilet. The complainant lost control of her bowel movement and defecated
on the floor on her way to the toilet and then again in the toilet. While the
complainant sat on the toilet the respondent pulled hard at head and put his penis
into her mouth, causing the complainant almost to choke. He pulled her back to the
bedroom, pushed her onto the bed, and penetrated her vaginally. When she
screamed, he put his hand into her mouth, with his fingers behind her teeth, and
pulled her jaw. She bit his hand and the respondent in turn bit her breast. He then
altered his position, withdrew his penis, and penetrated her yet again. On that
occasion he pinned her arm to her chest and she felt as if she was suffocating.
As to the psychological impact of the rape on her, the complainant’s uncontested
evidence was that she had lost confidence in herself, and had not been able to
work and could not bring herself to look for work. In the first few weeks after the
incident, she wore dark glasses when going out. She had a nervous breakdown
and was admitted to hospital, but could only stay in hospital for a week because
her medical aid funds had been exhausted. Because of that fact, she also had to
give up anti-depressant drugs prescribed for her. The rape incident had affected
her sex life with her husband. There was no intimacy between her and the husband,
and, as she put it, she ‘just get all uptight and everything when he comes near me.
I had flashbacks’. It took at least five months before they had any sexual
relationship after the incident. When her husband was having to work nightshifts,
she would lie awake at night with every light on in her flat, fully clothed, with three

kitchen knives and her husband’s gun in the bed. She felt badly about herself and
described herself as ‘a wreck.’
The respondent was convicted in the high court of housebreaking with intent to
rape, two counts of rape, and two counts of indecent assault. The offences were
taken together for the purposes of sentence by the trial court, and the respondent
was sentenced to seven years’ imprisonment, which was suspended for five years
on certain conditions. On appeal by the State against the sentence, this Court set
aside the sentence imposed by the trial court and substituted it with a sentence of
eight years’ imprisonment.
(b) Next is S v Nkomo [2007] 3 All SA 596 (SCA); 2007 (2) SACR 198 (SCA).
The complainant met the appellant in a bar, who gave her a drink laced with
alcohol. He forced her into a hotel room where he raped her. He locked her in the
room and went back to the bar for more drinks. She attempted to escape from the
room by jumping out of a window, and fell some ten metres to the ground and
injured her leg. She fell where the appellant had been sitting and drinking. He
forced her back into the hotel room and raped her four more times during the
course of the night. He also forced her to perform oral sex on him and slapped her,
pushed her and kicked her. He prevented her from leaving the room again by taking
her clothes away. The complainant managed to escape the following morning. The
appellant was sentenced to life imprisonment by the high court after the matter had
been referred to it by the regional court after conviction. On appeal, this Court, by
majority, allowed the appeal on sentence and replaced the sentence of life
imprisonment with that of 16 years’ imprisonment.
(c) In S v Fifana and Others [2008] ZAGPHC 326 a four-months pregnant woman was
gang-raped at knife point by three men after they had broken into her house at
night whilst she was asleep. Over and above being gang-raped, each of the three
assailants repeatedly raped her. Although one of the accused initially used a
condom, during one of the repeated rapes he did not. Another accused was HIV
positive, thereby exposing the complainant and her unborn baby to the risk of
HIV/Aids infection. The accused were sentenced to 15 years each for the rapes.
(d) In S v SM 2014 (1) SACR 53 (GNP) a 15-year-old girl was raped and impregnated
by her father, who had threatened to kill her if she reported him to anyone. When

her pregnancy started to show, the complainant disclosed that she had been raped
by the appellant. A psychosocial report on the complainant's post-crime situation
recorded severe emotional impact of the rape on the complainant. She had: low
self-esteem, sense of loss and powerlessness, anger and hostility. Furthermore,
she developed a sense of guilt, shame and developed pseudo-maturity and
inappropriate sexual behaviour. The report concluded that the complainant was put
through a ‘life threatening and traumatic experience which can affect her for the
rest of her life’. The appellant was sentenced to life imprisonment by the regional
court. On appeal, the high court set aside that sentence and substituted it with one
of 15 years’ imprisonment.
(e) In S v Mabaso 2014 (1) SACR 299 (KZP) the complainant was accosted by an
unknown man on her way from work who threatened her with a knife, and forced
her into a forest, where he raped her in a spot where there were dense trees, grass,
soil and stones. The thorns pierced her shoulders. Then he instructed her to get
dressed, and they continued walking. After a while he forced her to undress again,
upon which he raped her once more. The entire ordeal lasted for about an hour
and a half, and was very painful. Thick, long and sharp thorns pierced her back
and feet. The tips broke into her feet. During the incident, the appellant robbed the
complainant of her cellular phone and her wallet. She also lost her shoes. The trial
court sentenced him to life imprisonment. On appeal to the high court, the majority
upheld his appeal against the sentence and imposed a sentence of 15 years’
imprisonment in respect of each of the two rapes and eight years imprisonment for
the robbery. With the concurrency order the appellant was sentenced to an
effective 20 years’ imprisonment. The minority judgment would have imposed a
term of 25 years’ imprisonment for the two rape counts.
(f) In Mhlongo v The State [2016] ZASCA 152 the complainant, a 27-year-old woman
was subjected to ‘a night of terror and repeated rapes’. On the day of the incident,
the complainant was lured by the appellant and his uncle to get a lift home. Instead
of driving her home, the appellant took her to his own home, where he assaulted
her and threatened to kill her, whereupon he overpowered and raped her
repeatedly throughout the night until he released her the next day. The complainant
was still a virgin. She was subsequently diagnosed with HIV, from which she later

died. The regional court sentenced the appellant to life imprisonment. On appeal
to the high court, the sentence was set aside and substituted with a sentence of 18
years’ imprisonment. Although this Court, at para 21, expressed disquiet about the
reduction of the sentence by the high court, it held that ‘in the light of there being
no cross appeal by the State against sentence; this court can, unfortunately, do no
more’.
[90] A common theme in the cases referred to above, is the presence of aggravated
factors referred to in s 51(1) of the Act, in that there were multiple rapes, which
attracted life imprisonment. In addition, the multiple rapes were accompanied by far
more humiliating and gruesome circumstances than in the present case, especially
those in Swart, Nkomo, Fifana and Mhlongo. But none of the perpetrators were
sentenced to anything more than 18 years’ imprisonment. It is therefore not clear how,
in the present case, in respect of a rape unaccompanied by the aggravated factors
mentioned in s 51(1), a sentence of 18 years’ imprisonment can be justified.
As explained in Malgas (at para 8) one of the purposes of the Act was to ensure ‘… a
severe, standardised, and consistent response’ from the courts to the commission of
such crimes. That purpose is not achieved where there is no consistency in the
sentences imposed by the courts, especially where, as here, aggravated rapes have
been met with lesser sentences, and a rape simplicister, attracts a more severe
sentence. In my view, this could never have been the intention of the legislature.
[91] Two further obvious points remain to be made. The first is that when an
appellate court sets aside a sentence imposed by a trial court, and substitutes it with
its own, it exercises a discretion. It must therefore ensure that its substituted sentence
is not itself vitiated by misdirection or a disturbingly lenient or heavy sentence. The
second is that the constitutional right to a fair trial also covers the sentencing stage. In
S v Dodo 2001 (1) SACR 594 (CC); 2001 (5) BCLR 423 (CC) paras 37-38, the
Constitutional Court noted that proportionality between the seriousness of the offence
and the period of imprisonment lies at the core of the right not to be punished in a
cruel, inhuman or degrading way.42 A disproportionate sentence is therefore
unconstitutional. It therefore remains the duty of a sentencing court, whether at first

42 See s 12(1)(e) of the Constitution of the Republic of South Africa, 1996.

instance or at appellate stage, to exercise its discretion in such a manner that that right
is not infringed.
Conclusion
[92] In the circumstances of the present case, a sentence of 18 years’ imprisonment
is in my view, totally disproportionate, and thus not constitutionally compliant. As
mentioned already, in the context of the minimum sentences prescribed in s 51 of the
Act, it is heavier than the sentences prescribed for murder (a capital offence) where
an accused is a second offender and almost the same as the sentence for murder
where an accused is a third offender. Comparatively, it is also far heavier than the
sentences imposed in more aggravated circumstances, evidenced by the cases to
which I have referred. For these reasons, I am unable to support the sentence of 18
years’ imprisonment imposed by the majority judgment. I find it disturbingly severe and
shockingly inappropriate.
[93] However, the principled basis for my disagreement remains that a juridical basis
to interfere with the sentence imposed by the trial court, as envisaged in both Maake
and Mathebula, has not been established.
[94] I would in the circumstances dismiss the State’s appeal against the sentence.
Save for that, I concur in the rest of the order of the majority judgment.

_________________
T Makgoka
Judge of Appeal

APPEARANCES:

For appellant:

J M de Nysschen
Instructed by:

Director of Public Prosecutions, Bloemfontein

For respondent:

P L Van der Merwe
Instructed by:

Legal Aid South Africa, Bloemfontein

Amicus curiae:

S J Reinders (with R J Nkhahle)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY: JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

25 March 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 judgment of the Supreme Court of Appeal
Director of Public Prosecutions, Free State v Mokati (440/2019) [2022] ZASCA 31(25 March 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment in an appeal against the decision
of the Free State Division of the High Court of South Africa, Bloemfontein (the trial court), dismissing
the appeal by the Director of Public Prosecutions, Free State (the State), the appellant, on the questions
of law reserved; Mr Mokati’s (the respondent’s) cross- appeal against his conviction and sentence;
upholding the State’s appeal against the sentence of 10 years imprisonment on the count of rape and
substituting it with a sentence of 18 years imprisonment. The sentence of 15 years’ imprisonment for
robbery with aggravating circumstances was ordered to run concurrently with the 18-year jail term for
rape.
The respondent faced three counts, rape (count1), robbery with aggravating circumstances (count 2)
and murder (count 3). The trial court found that Ms AM (the deceased) was alone at her workplace on
9 February 2017 when the respondent entered the premises armed with a knife. He forcibly raped the
deceased after subduing her by threatening her at knifepoint. He penetrated the deceased in different
positions at various places within the office. First, he penetrated her vaginally on a chair; secondly, he
made her lean on a table and penetrated her; thirdly, he pushed her on her knees on the carpet and
again penetrated her, and fourthly, when his penis slid out, he turned her on her back and penetrated
her. A clinical forensic nurse testified that the deceased had reported vaginal and anal penetration. After
the rape, the respondent took the deceased’s electronic devices: a cellular phone, a laptop computer,
a tablet computer and accessories. He threatened to kill her and her family if she reported the incident
to the police. The deceased was examined by Dr De Lange, who prescribed her broad-spectrum
antibiotics that prevent and treat sexually transmitted diseases. She was also examined by the forensic
nurse, who gave her post-exposure treatment to prevent infection and some hormonal pills. From 9
February 2017, for the treatment of, amongst others, acute stress, anxiety, panic attacks, convulsion,
several medicines were prescribed for the deceased by a number of medical practitioners. She died 14
days later following the rape. The cause of death was recorded as cerebral venous sinus thrombosis.
The trial court convicted the respondent of rape (count 1) and robbery with aggravating circumstances
(count 2) and sentenced him to 10 and 15 years’ imprisonment, respectively. It further ordered that five
years of the prison term for rape would run concurrently with the sentence on count 2. The respondent
was acquitted of murder (count 3).
Before the SCA, the State appealed against the sentence imposed on the respondent for rape. It also
reserved questions of law in terms of s 319(1) of the Criminal Procedure Act 51 of 1977 (CPA) in respect
of the acquittal of the respondent on the count of murder. It contended that the competent verdict of
culpable homicide ought to have been returned. The respondent cross-appealed against his conviction
and sentence in respect of the rape and robbery counts.
The SCA first considered the cross-appeal by the respondent against his conviction on the rape and
robbery counts. During his trial he contended that the sexual intercourse was consensual and that he

took the deceased’s belongings as a form of security for an amount of R1500 that the deceased
allegedly owed him. Following a brief analysis, the SCA found that the overall evidence presented by
the State portrayed a picture that was consistent and probable that the respondent had raped the
deceased. On the count of robbery there were inherent improbabilities in the respondent’s version. It
was illogical that the deceased would give him very valuable items as security for a debt of only R1 500.
Accordingly, so held the SCA, the trial court was correct in convicting the respondent on these two
counts. Therefore, it dismissed his cross-appeal.

The SCA then considered the appeal by the State on the questions of law reserved on the count of
murder in respect of which the respondent was acquitted. The State argued both in the trial court and
in the SCA that the respondent ought to have been found guilty of culpable homicide in that had he not
raped the deceased, she would not have had to take different kinds of medication. The trial court had
found that the use of different medications could have independently caused the sagittal venous
thrombosis. It concluded that the respondent ‘could not have foreseen’ the chain of events that
ultimately led to the deceased’s death and acquitted him.

In broad outline the questions of law came down to this: whether was it correct in law for the trial court
to have found that there was no causal link between the rape and/or aggravated robbery and the death
of the deceased; whether ‘the legal principles underlying the element of causality were properly
considered and applied’; whether the evaluation of expert evidence was correct in law; and whether
was it correct for the trial court not to have considered the competent verdict of culpable homicide.

The SCA held that the question whether was it correct for the trial court to have found that there is no
causal link between the rape and/or aggravated robbery and the death of the deceased was a factual
enquiry which would involve the evaluation of evidence to determine whether the rape was the operative
cause of death. The conclusion reached by the trial court was not one of law. On the evaluation of the
expert evidence- the SCA held that dealing with the evidence in a fragmented fashion would amount to
a misdirection of fact, not that of law. So too, ignorance of the evidence or a lack of appreciation for its
relevance are questions of fact, not of law. Concerning the argument that the respondent ought to have
been found guilty of culpable homicide – it held that even on the most liberal construction of the
questions posed by the State it took the matter no further because the trial court and the State had
failed to identify the facts that would have to be considered for purposes of answering those questions.
The generalised findings on the evidence of the experts, upon which the professed points of law were
predicated, suffered deficiencies. The trial court’s findings ought to have been explicitly delineated and
fully set out in the record. Consequently, the State’s ground of appeal under s 319 (1) of the CPA had
to fail.

Lastly, the SCA dealt with the appeal and cross-appeal against sentence on the count of rape. The
State contended that the prescribed minimum sentence of 10 years’ imprisonment in terms of s 51(2)(b)
of the Criminal Law Amendment Act 105 of 1997 (the CLAA) read with Part III of Schedule 2, imposed
on the respondent for rape, was shockingly lenient and inappropriate. It argued that the respondent had
raped the deceased in four different positions and at three different places in the office. Therefore, the
multiples acts of rape called for life imprisonment in terms of s 51(1) of the CLAA. The trial court had
found the rape to have been a single continuous act which fell within the purview of s 51(2)(b). The SCA
held that it was impermissible for the State, on an appeal against the sentence, to seek a reversal of
the trial court’s finding on issues having a bearing on the conviction without having sought leave against
the conviction through a reservation of a point of law on them. In light of this, it was not open to re-
evaluating whether there had been multiple acts of rape.

On the State’s further argument that the minimum sentence imposed was inordinately light because of
a number of aggravating circumstances which, it submitted, were not properly considered by the trial
court, in a split decision – the majority of the SCA stated the position as follows: First, Parliament has
legislated a minimum sentencing regime in respect of particular crimes to reflect the seriousness with
which such offences should be considered by the courts when imposing a sentence. Second, this
legislative regime imposes a minimum sentence, absent substantial and compelling circumstances. The
presence of such circumstances requires the downward revision of the sentence below the prescribed
minimum, so as to ensure that sentencing is not rendered disproportionate, and hence unconstitutional.
Third, a prescribed minimum sentence does not prevent a sentencing court from imposing a sentence
above the prescribed minimum, if a careful consideration of all the factors relevant to the imposition of
a fair and proportionate sentence warrants a sentence above the prescribed minimum. Fourth, the

sentencing court’s discretion to determine the correct sentence is not constrained by the requirement
that it must find substantial and compelling circumstances before a sentence is imposed that is above
the prescribed minimum. That would entail a minimum sentence being a presumptive sentence, which
it is not. The sentencing court will take account of the fact that the prescribed sentence, at a minimum,
reflects the gravity that Parliament attaches to the crime. However, the variability of crimes and the
offenders who commit crimes is legion. Hence, the sentencing court, if it considers that the crime
warrants a sentence above the prescribed minimum, should exercise its discretion to do so, taking
account of the guidance provided in Malgas and the overarching constitutional constraint of
proportionality. Fifth, if an appellate court considers that the sentencing court has failed to impose a
sentence above the prescribed minimum when it should have done so, the appellate court may only
intervene if the imposition of the prescribed minimum sentence is grossly disproportionate.
Having regard to the cumulative effect of all the circumstances and the serious aggravating features of
the case - as set out in the judgment – the majority held that the trial court could not reasonably have
imposed the sentence that it did. In addition, the minimum sentence imposed in terms of s 51(2)(b) of
the CLAA was 'disturbingly inappropriate’ and markedly out of kilter with the sentence it would have
imposed. It further held that 18 years’ imprisonment for rape would best serve all the objectives of
punishment. In the result, it upheld the State’s appeal.
As to the respondent’s cross-appeal, the SCA found his argument, that the trial court erred in not finding
substantial and compelling circumstances present which merited a deviation from the imposition of the
prescribed sentence under s 51(2)(b) of the CLAA, not to have carried any persuasion and thus
dismissed it.
The dissenting judgment would have dismissed the State’s appeal against the sentence. It held that
where a minimum sentence is prescribed in the Act, it was not enough for a court to simply invoke its
‘inherent jurisdiction’ to deviate from the prescribed minimum sentence and impose a higher one. There
must be an objective and juridical basis to ensure that the sentencing is not undertaken on an undefined
basis, and influenced by a particular judicial officer’s subjective views as to what is appropriate. In
addition, it held that by prescribing minimum sentences in respect of particular offences, the legislature
set a benchmark against which minimum sentences must be considered. Accordingly, when a court
imposes a sentence higher than the prescribed minimum sentence, it must bear in mind that the
legislature has ordained the prescribed sentences as guidelines. Thus, where there is a deviation from
the prescribed minimum sentences, either downward or upward, the extent of the deviation requires
justification, given what the legislation has stipulated. The greater the deviation the greater the burden
of justification. It further held that none of the aggravating factors presented in this case, either
individually or cumulatively with others, constituted a basis for a higher sentence. They were inherent
in most rapes and their presence was already reflected in the 10 years’ prescribed minimum sentences
decreed in s 51(2) of the CLAA. Held that the sentence of 10 years’ imprisonment imposed by the trial
court was not such that no court acting reasonably, would have imposed it. Consequently, a sentence
of 18 years’ imprisonment was wholly disproportionate.

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