SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 527/2018
In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
LIMPOPO

APPELLANT

and

KOKETSO MOTLOUTSI

RESPONDENT

Neutral citation: The Director of Public Prosecutions, Limpopo v Motloutsi
(527/2018) [2018] ZASCA 182 (04 December 2018)

Coram:
Tshiqi, Swain and Dambuza JJA, Mokgohloa and Mothle AJJA

Heard:
01 November 2018

Delivered: 04 December 2018

Summary: Rape-Prescribed Minimum Sentence-whether respondent’s personal
circumstances constituted substantial and compelling circumstances-no evidence
that the respondent’s personal circumstances influenced his conduct-sentence for
rape increased on appeal to 10 years’ imprisonment.

ORDER

On appeal from: Limpopo Division of the High Court, Polokwane (Phatudi J,
sitting as court of first instance):
1 The appeal against sentence is upheld and the sentence imposed by the trial
court in respect of Count 2 (rape) is set aside and replaced with the following:
‘On count 2 (rape) the accused is sentenced to 10 years’ imprisonment’.
2 The above sentence is antedated to 14 August 2017, being the date upon which
sentence was originally imposed.

JUDGMENT

Mokgohloa AJA (Tshiqi, Swain and Dambuza JJA and Mothle AJA):

[1] The respondent was indicted in the Limpopo Division of the High Court,
Polokwane, on three counts, namely that of housebreaking with intent to rob
(Count 1), rape read with s 51 (1) of the Criminal Law Amendment Act
(Minimum Sentences Act)1 (Count 2), and robbery (Count 3). At the
commencement of the trial the respondent tendered a plea of guilty to rape in
terms of s 51 (2) of the Minimum Sentences Act and theft in respect of robbery.
In summary, the respondent admitted that he entered the complainant’s room,
raped her and stole certain items. He, however, stated that he committed these
offences alone. The prosecutor did not accept the plea in respect of rape. The trial
court then changed the respondent’s plea of guilty to not guilty in terms of s 113
of Criminal Procedure Act (CPA).2 The contents of his plea were recorded as
formal admissions in terms of s 220 of the CPA.

1 Criminal Law Amendment Act 105 of 1997.
2 Criminal Procedure Act 51 of 1977.

[2] The trial proceeded and the prosecutor led the evidence of the complainant
she testified that during the night of 7 May 2016 she was asleep in her room. She
heard a loud bang on the door. She opened her eyes and saw two males inside her
room. One of them approached her while she was still on her bed. He sat on the
bed and started to touch her. He instructed her to take off her clothes. The
complainant refused. He then undressed her and raped her while the other male
was busy searching her room. After the first male raped her, the second one
approached her and raped her. Thereafter, both males searched her room and took
her laptop, cellphone, money and two of her necklaces. They left. This incident
occurred during the night in a dark room and the complainant could not identify
either of her attackers.

[3] DNA tests results which implicated the respondent in these offences were
handed in. The respondent did not testify and closed his case. He was convicted
of theft and rape in terms of s 51 (2) of the Minimum Sentences Act (in terms of
his plea).

[4] The prosecutor called the complainant who testified in aggravation of
sentence. She stated that at the time of this incident, she was a student at the
University of Limpopo in the faculty of Information Studies. She could not
concentrate in her studies after the rape and failed one module.

[5] The respondent elected not to testify in mitigation and no evidence was led
on his behalf. His personal circumstances were placed on record from the bar:
that he was 19 years old at the time of the commission of the offences, he was a
first offender in respect of rape and he was still at school doing Grade 10. He is
an orphan and was raised by his aunt. He was under the influence of liquor when
he committed these offences, he spent a period of a year in custody awaiting trial,
he was remorseful, and the complainant did not suffer any injuries.

[6] Regarding these personal circumstances of the respondent, the trial court
stated:
‘. . .[W]hen you committed the offence in May or so of 2016, you were only 19 years old and .
. . the Courts regard a person of this age to be fairly young’.
The trial court went further and stated:
‘Your level of education is not that sophisticated, you went up to grade 10, that could be
because of financial constraints running in your family because you are an orphan. You were
raised by your aunt probably out of social grant and pensions alternatively’.
As regards the respondent’s state of sobriety, the trial court stated:
‘We are told that on the day in question you have consumed alcohol and it ran to your waist,
that is why you went into the complainant’s room . . .’
Referring to the respondent’s plea, the trial court stated:
‘By pleading guilty it’s an indication that you were remorseful and according to the DNA
results there is no indication of forceful penetration.’

[7] The trial court held that the respondent’s personal circumstances, justified
the imposition of a lesser sentence than the prescribed minimum sentence. He
was sentenced to 12 months’ imprisonment in respect of theft and five years’
imprisonment in terms of s 276 1(i) of the CPA in respect of rape. The sentences
were ordered to run concurrently.

[8] Aggrieved by the sentence imposed in respect of the rape, the Director of
Public Prosecutions (the DPP) appealed in terms of s 316B of the CPA, leave
having been granted on petition by this court. The basis of the appeal was that the
sentence was too lenient.

[9] The respondent’s conviction of rape rendered him liable for punishment
under s 51(2) of the Minimum Sentences Act which prescribe a minimum
sentence of 10 years’ imprisonment, unless substantial and compelling
circumstances are found to be present.

[10] The DPP contends, in essence, that the trial court had misdirected itself in
concluding that there were substantial and compelling circumstances which
justified the imposition of a lesser sentence than the prescribed minimum
sentence. Counsel for the respondent, on the other hand, argued in support of the
correctness of the trial court’s findings in respect of the substantial and
compelling circumstances and submitted that the sentence imposed was
appropriate.

[11] The question is whether, given the facts of this case, the trial court was
correct in its conclusion that the personal circumstances of the respondent
amounted to substantial and compelling circumstances that justified the
imposition of a lesser sentence than the prescribed one of 10 years’
imprisonment. Ponnan JA, referring to S v Malgas3, stated the following in S v
Matyityi4:
‘Malgas, which has since been followed in a long line of cases, set out how the minimum
sentencing regime should be approached, and in particular how the enquiry into substantial and
compelling circumstances is to be conducted by a court. To paraphrase from Malgas: the fact
that Parliament had enacted the minimum sentence legislation was an indication that it is no
longer ‘business as usual’. A court no longer had a clean slate to inscribe whatever sentence it
thought fit for the specified crimes. It had to approach the question of sentencing, conscious of
the fact that the minimum sentence had been ordained as the sentence which ordinarily should
be imposed, unless substantial and compelling circumstances were found to be present.’
The trial court erred in finding that the following constituted substantial and
compelling circumstances justifying the deviation from the prescribed sentence.

[12] It is settled that the younger the offender, the clearer the evidence needs to
be about his background, education, level of intelligence, and mental capacity, in
order to enable a court to determine the level of maturity and therefore moral

3 S v Malgas 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222; [2001] 3 All SA 220.
4 S v Matyityi 2011 (1) SACR 40 at 46d-e

blameworthiness.5 As stated earlier, the respondent did not testify. It appears
from the record of the proceedings that his aunt was present in court. She was
however not called to testify and give clearer evidence about the respondent’s
background and upbringing. There was therefore no evidence as to how the
personal circumstances of the respondent influenced his conduct.

[13] In his formal admissions, the respondent stated that although he had
consumed alcohol on the night of the incident, he was able to comprehend and
appreciate the consequences of his actions. There is therefore no evidence, and
his counsel did not argue, that the consumption of alcohol impaired his mental
judgment and diminished his moral blameworthiness to the extent that it may be
regarded as substantial and compelling circumstance.

[14] Remorse is an important consideration in sentencing. However, genuine
remorse
must
be
distinguished
from
self-pity
and
an
unavoidable
acknowledgment of guilt because the evidence against the accused is
overwhelming. Before remorse can be a valid factor in the imposition of
sentence, it has to be sincere and the accused must take the court into his or her
confidence. In S v Barnard6 the court held that a plea of guilty in the face of an
open and shut case against the accused is a neutral factor.

[15] The fact that the respondent pleaded guilty is not in itself an indication of
remorse. He failed to reveal his complicity to the police during the year before
the trial commenced. The evidence linking him to the crime was overwhelming
DNA evidence. The other factor that militates against a conclusion that the
respondent has shown genuine remorse is his decision not testify in mitigation of
sentence. His evidence would have demonstrated his candour, by subjecting his

5 S v Lehnberg en ‘n Ander 1975 (4) SA 553 (A) at 561 A-C.
6 S v Barnard 2004 (1) SACR 191 (SCA) at 197.

personal circumstances to the scrutiny of cross examination. This may have
assisted him in bringing to the court’s attention information about his background
and upbringing, to enable the court to make a determination regarding his level of
maturity and therefore his moral blameworthiness.  I find that the respondent
pleaded guilty in the face of overwhelming DNA evidence.

[16] Section 51(3) (aA) of the Minimum Sentences Act provides that when
imposing sentence in respect of the offence of rape the apparent lack of physical
injuries on the complainant shall not constitute substantial and compelling
circumstances. In S v Nkawu7 the court interpreted s 51(3) (aA) to mean that the
fact that the complainant in a rape case did not suffer serious or permanent
injuries may not, on its own, be regarded as a substantial and compelling
circumstance justifying deviation from the prescribed sentence, but may, together
with other factors cumulatively be considered, amount to substantial
circumstances.

[17] In S v Mahomotsa8 this Court stated:
‘While it may theoretically be possible that a victim of rape committed in the circumstances
and manner I have described may not suffer any psychological damage other than that
experienced while the attack is taking place and in its immediate aftermath, it is in the highest
degree unlikely. Where as here, the complainants were young girls, it is quite unrealistic to
suppose that there will be no psychological harm.’

[18] I agree with the DPP that the trial court attached insufficient weight to the
seriousness of the offence and the interests of society. Rape is a very serious
offence ‘constituting as it does a humiliating, degrading and brutal invasion of
the privacy, the dignity and the person of the victim.’9 It is a horrifying crime and
a cruel and selfish act in which the aggressor treats with the utmost contempt the

7 S v Nkawu 2009 (2) SACR 402 (ECG).
8 S v Mahomotsa 2002 (2) SACR 435 (SCA) para 11.
9 S v Chapman 1997 (2) SACR 3 (SCA) at 5b.

dignity and feelings of the victim.10 As stated in Chapman, women in this
country have a legitimate claim ‘. . . to enjoy the peace and tranquility of their
homes without fear, the apprehension and the insecurity which constantly
diminishes the quality and enjoyment of their lives’. The complainant in the
present matter was sleeping in the safety of her own room. The respondent
barged into her room, stole from her and raped her.

[19] The trial court failed to take into consideration the three elements that are
necessary when determining a proper sentence. These elements as enunciated in
S v Zinn11 consist of the offence, the offender and the interests of society. A court
should strike a judicious balance between these elements in order to ensure that
one element is not unduly accentuated at the expense of and to the exclusion of
other elements. To achieve this counterbalance a court must evaluate and evenly
balance the nature and the circumstances of the offence, the characteristics of the
offender and his circumstances and the impact of the crime on the community, its
welfare and concerns.12 I find that the trial court unduly emphasised the personal
circumstances of the respondent at the expense of the seriousness of the offence
and the interests of society.

[20] The respondent’s background is not unique and cannot justify his callous
deeds. There are many persons with similar and more challenging backgrounds
who do not resort to crime and who live as good citizens, respecting the law and
rights of their fellow human beings.

[21] I am mindful of the fact that sentencing is always within the discretion of
the trial court and that this court can only interfere where there has been an
irregularity that results in a failure of justice. The sentence of five years

10 N v T 1994 (1) SA 862 (C).
11 S v Zinn 1969 (2) SA 537 (A).
12 S v Banda & others 1991 (2) SA 352 at 355A-C.

imprisonment in terms of s 276 (1)(i) of the CPA imposed by the trial court is so
disproportionate and shocking, that no reasonable court could have imposed it.
The sentence undermines public confidence in the criminal justice system and
has to be set aside and replaced with the minimum sentence of 10 years’
imprisonment.

[22] Regrettably, it is necessary to comment on the manner in which the
presiding judge conducted the proceedings. As pointed out above, the respondent
was charged with contravening s 51 (1) of the Minimum Sentences Act, where it
is alleged that the complainant was raped more than once. The respondent
however tendered a plea of guilty to contravening s 51(2) of the Minimum
Sentences Act, which deals with the situation where a single rape is alleged.

[23] The respondent in his plea explanation made no mention of any other
person being involved in the crimes to which he had pleaded guilty.
When Phatudi J asked the prosecutor whether he accepted the plea, the
prosecutor asked for clarity on whether the plea of guilty to the charge of rape,
was in terms of s 51(1) or s 51(2) of the Minimum Sentences Act.  This
reasonable request then led to the following discussion between Phatudi J, the
prosecutor Mr Chauke, and the defense counsel Mr Kgatle:
‘Court: Alright, Mr Kgatle, do you wish to clarify whether this is 51(1) or 51(2)?
Mr Kgatle: M’Lord, in as far as, my instructions are concerned, it remains 51(2) and I would
submit that if there was any other person involved or companion, he would have been…
Court: Arrested.
Mr Kgatle: … in court facing the same charges and it will be clear from the court that, indeed,
there are two people who are facing same charge as gang rape, as it is submitted by my learned
colleague, here we are having only one accused.
Court: And he admits, in so far as, as I’m concerned.
Mr Kgatle: And he is admitting his conduct, he cannot admit and answer the allegations on
behalf of any other person…

Court: Who is not before court.
Mr Kgatle: That would very unfair and unconstitutional, hence we are standing by our
statement that it refers to only this accused before the court.
Court: Yes.
Mr Kgatle: As the Court pleases.
Court: Mr Chauke, you know what let us not complicate issues here, where is the other
accused to say that there was more than one accused?
Mr Chauke: He is unknown.
Court:  Ja, why do you say that you don’t accept what he says?
Mr Chauke: But the facts which we have indicated that two people raped the complainant.
Court: Ja, if that person is unknown, the witness, what is she going to say, will she identify
that person, it means it is an unknown man, so even if I can say alright call your witness, what
is she going to say?
Mr Chauke: Yes, that will be get later whether if a gang rape was committed by more than one
person and only one is before court, it does not fall within Section …[intervention]
Court: But I’m saying if you say the other accused or suspect or whoever is “unknown”?
Mr Chauke: Yes
Court: And if the complainant knew this person, this would be before court?
Mr Chauke: Yes.
Court: Now what are we trying to achieve because what are you going to say because if she
doesn’t know the assailant – if she knows the assailant, the assailant should have been before
court.
Mr Chauke: That’s my …[intervention]
Court: If she does not know the other party what is she going to say in evidence?
Mr Chauke: No, my point is on sentencing we know that an offence of rape is either
…[intervention]
Court: So you are looking at – yes, you are looking at that but remember that is in the court’s
discretion.
Mr Chauke: Yes, it is …[Intervention]
Court: So if the complainant does not know who the other party is, why must he plead guilty
to something which is – it’s not going to work at the end.
Mr Chauke: Yes, the issue of a plea it is up to him, it has nothing to do with the State, the State
only has to bring evidence to prove the offence is Section 51(1) or Section 51(2), simply as
that.

Court: Okay, I don’t want to be seen to be entering the arena, its fine, you are the dominus litis
but remember that there are rights here enshrined in the constitution, you know very well.
Anyway, fine thank you.’

[24] It is clear that Phatudi J in questioning the prosecutor exceeded the bounds
of what was reasonable in order for him to understand why the prosecutor refused
to accept the plea, as tendered. The prosecutor was subjected to undue pressure to
accept the plea tendered, simply because Phatudi J believed that because the
complainant was unable to identify the other assailant, a plea of guilty to a single
rape should be accepted by the prosecutor. In doing so, he failed to have regard to
his own admonition not to enter the arena.

[25] Phatudi J then proceeded to accept the respondent’s plea of guilty to theft
on count 3, but entered a plea of not guilty to rape in respect of count 2, as he was
obliged to do, as the prosecutor did not accept the plea of guilty tendered on that
count. The prosecutor then led the evidence of the complainant on the rape
charge in which she stated that she was raped by two individuals, but she was
unable to identify either of them. She was subjected to cursory cross-
examination, the object of which seems to have been to cast doubt on her
evidence that she was raped by two persons, but which failed in any way to affect
her credibility. The defence case was then closed without the respondent giving
evidence, with the result that the complainant’s evidence that she was raped by
two persons, stood unchallenged.

[26] The preconceived view held by Phatudi J as to the weight to be attached to
the evidence of the complainant that she was raped by two persons, then
unfortunately and erroneously found expression in his judgment. He rejected the
complainant's evidence on this issue simply on the basis that according to the
DNA evidence there was 'no indication that any other person except the accused

penetrated the complainant.'  He reached this conclusion on the basis that the
DNA evidence excluded a certain Mr Ntabani Matsatsi as the donor of the DNA
in the exhibits, with the result that ‘serious doubt’ was cast upon ‘the credibility
of the complainant as to how many people were actually involved in the rape.’
The erroneous reasoning of Phatudi J is self-evident. The fact that the DNA
evidence excluded Mr Matsatsi could not affect the complainant’s credibility,
when there was no evidence that she had ever identified him as one of her
assailants. To the contrary, her evidence was that she was unable to identify
either of her assailants. In addition, this evidence obviously could not exclude the
participation of an unidentified person in the rape.

[27] Although the appeal only concerns the sentence imposed upon the
respondent in terms of s 51 (2) of the Minimum Sentences Act, it has been
necessary to deal with the manner in which Phatudi J concluded that the
complainant was only raped once. This is because this case serves as a stark
reminder of the danger of a judicial officer forming a preconceived erroneous
view on a particular issue and thereafter imposing that view on counsel, without
affording a proper opportunity to counsel to persuade him or her, to the contrary.

[28] In the result the following order is granted:
1 The appeal against sentence is upheld and the sentence imposed by the trial
court in respect of Count 2 (rape) is set aside and replaced with the following:
‘On count 2 (rape) the accused is sentenced to 10 years’ imprisonment’.
2 The above sentence is antedated to 14 August 2017, being the date upon which
sentence was originally imposed.

___________________
FE MOKGOHLOA
ACTING JUDGE OF APPEAL

APPEARANCES

For the Appellants:
C Chauke

Instructed by:

Director of Public Prosecutions, Limpopo

Director of Public Prosecutions, Bloemfontein

For the Respondent:
LM Manzini
Instructed by:
Legal Aid South Africa, Polokwane

Legal Aid South Africa, Bloemfontein