THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 545/13
In the matter between:
PETER MASHUDU NEVILIMADI

APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Peter Mashudu Nevilimadi v The State (545/13) [2014]
ZASCA 41 (31 March 2014)
Coram:

Mhlantla, Wallis and Saldulker JJA
Heard:

5 March 2014
Delivered:

31March 2014
Summary:        Criminal law and procedure - appeal against conviction on a
charge of rape - sentence – whether sentence of 39 years’ imprisonment
appropriate. On appeal – conviction confirmed – sentence set aside and
replaced with one of 15 years’ imprisonment.

_____________________________________________________________
ORDER
________________________________________________________________
On appeal from: Limpopo High Court, Thohoyandou (Lukoto J sitting as
court of first instance):
1 The appeal against conviction is dismissed and the conviction is confirmed.
2 The appeal against the sentence is upheld.
3 The sentence imposed by the court below is set aside and replaced with the
following:
‘The accused is sentenced to 15 years’ imprisonment.’
4 The sentence is antedated in terms of section 282 of the Criminal
Procedure Act 51 of 1977 to 24 December 2001, being the date upon which
the sentence was imposed.

JUDGMENT

Mhlantla JA (Wallis and Saldulker JJA concurring):

[1] Mr Mashudu Nevilimadi (the appellant) stood trial in the Sexual Offences
Court, Thohoyandou, Limpopo on a charge of rape.1 He pleaded not guilty and
at the end of the trial was found guilty of rape involving a girl under the age of
16 years. The magistrate stopped the proceedings in terms of section 52 of the

1 The charge sheet read:
“The accused is guilty of rape in that upon or about the 10 February 2001 and at or near Masia Sinthumele in
district of Vuwani, Northern Province Regional Division the said accused did wrongfully, unlawfully and
intentionally have sexual intercourse with Ms X, a female person.”

Criminal Law Amendment Act 105 of 1997 (the Act)2 and referred the matter to
the Limpopo High Court, Thohoyandou for sentence. On 24 December 2001 the
court below (Lukoto J) imposed a sentence of 39 years’ imprisonment. The
appeal against conviction and sentence is before us with leave granted by
Makhafola J on 4 December 2012.

[2]   The trial in the Sexual Offences Court commenced on 8 June 2001. The
appellant pleaded not guilty and in amplification of his plea stated that the
complainant was his girlfriend and that they had consensual sexual intercourse.
The complainant was due to testify when it became evident that she was 12
years old. The magistrate immediately stopped the proceedings and warned the
appellant about the consequences in the event of conviction on a charge of rape
involving a girl under the age of 16. In this regard, he warned the appellant that
the minimum sentence was 15 years’ imprisonment and that his case would be
referred to the high court for sentencing. It is noteworthy to state that the
prescribed sentence in the circumstances of this case was imprisonment for life.
The magistrate thereafter adjourned the proceedings and afforded the appellant
an opportunity to engage the services of an attorney.

[3]   The case was postponed on numerous occasions to enable the appellant to
secure the services of a legal representative. On 27 October 2001 the trial
resumed. At that stage the appellant was legally represented. The complainant

2  Section 52 prior to its amendment provided:
Committal of  accused for sentence by High Court after conviction in regional court of offence referred to
in Schedule 2– (1) If a regional court, following on –
(a) a plea of guilty; or
(b) a plea of not guilty,
has convicted an accused of an offence referred to in –
(i) Part I of Schedule 2
(ii) …
The court shall stop the proceedings and commit the accused for sentence as contemplated in section 51(1) or
(2), as the case may be, by a High Court having jurisdiction.

and Ms Rosinah Rasimphi, to whom the first report was made, testified on
behalf of the State. A medical report (J88 form) prepared by Dr Sivhada of
Tshilidani Hospital was handed in by consent between the parties. The appellant
testified in his defence. It is not in dispute that sexual intercourse between the
appellant and the complainant took place on the day in question. The only issue
that had to be determined by the trial court was whether the sexual intercourse
was consensual. The essential facts may be briefly stated.

[4]    The complainant’s version was that she was alone at home when the
appellant approached her. He requested some water to drink. She was inside the
hut when she discovered that the appellant had entered the hut. Upon enquiry,
he told her not to ask questions. He took a knife that was on the table and locked
the door. He threatened her with it and ordered her to lie down. She resisted
whereupon he wielded the knife at her. She eventually complied and removed
her clothes. The appellant had sexual intercourse with her. She felt pain in her
vaginal region and cried during this encounter. She could not scream for help as
the appellant had covered her mouth and was still in possession of the knife. He
eventually stopped and put on his clothes. As he left, he ordered her not to tell
anyone about the incident otherwise he would assault her.

[5]    As her mother had not yet returned from attending a funeral, she waited
outside her home for her neighbour Ms Rasimpi to return. She subsequently
made a report to her and Ms Rasimpi in turn related this to her mother when she
returned.  Her mother thereafter took her to the clinic and to the police station.

[6] The complainant denied the appellant’s version that they had an intimate
relationship which had been on-going for three years. She stated that this was
her first sexual encounter and it was without her consent. She and the appellant
were not friends, albeit she knew him as at some stage they had attended the
same school and been in the same class. She denied ever arranging to meet him
or telling him that her parents would be away attending a funeral and that he
could visit her.

[7]    She testified that the incident had emotionally affected her as she had
become afraid of men. She struggled to play with other children and has lost her
self-esteem and confidence.

[8]   Ms Rosinah Rasimpi confirmed that she and the complainant were
neighbours. On the day of the incident at about 19h00 she was proceeding to her
house when she saw the complainant standing outside her premises. The
complainant appeared upset, withdrawn and was crying. Upon enquiry, the
complainant just shook her head and followed her inside her house.

[9]    Once inside, the complainant made a report about the incident; that she
was alone at home when the appellant arrived; entered the hut under false
pretences, closed the door; threatened her with a knife and raped her. He did this
after enquiring about the whereabouts of her parents and siblings. Rosina took
the complainant to her home and related what she had been told by the
complainant to her mother. After reporting the matter, the complainant was
taken to the clinic and to the police station.

[10]   The medical report was handed in by agreement between the parties. The
examination was conducted on the same day of the incident by Dr T H Sivhada.
He recorded that the complainant was physically small and had small breasts
which were still developing. She was healthy and mentally healthy. He recorded
that the complainant had never menstruated. The doctor’s gynaecological
examination was painful for the complainant. Her vagina admitted only one
finger of the doctor.   The labia3 were normal whilst the hymen was rugged.
Rugged means having a rocky and uneven surface. There was no bleeding. A
slight watery discharge was detected. The doctor concluded that the absence of
injuries did not exclude forceful penetration.

[11]     The appellant testified in his defence and stated that he was born on 16
June 1983. His defence was that he and the complainant had been having an
intimate relationship for more than a year and that they had sexual intercourse
on more than ten occasions.  In this regard, he denied the earlier version put by
his counsel that the relationship had been on-going for three years. He stated
that on the day in question, the complainant had initiated everything. He denied
the complainant’s version that he had threatened her with a knife and was
unable to explain why this was never contested when the complainant testified.
He conceded that the complainant appeared to be very young. He thereafter
closed his case.

[12]      On 1 November 2001, the regional magistrate rejected the appellant’s
version as not being reasonably possibly true and convicted him of rape
involving a girl under the age of 16 years. Pursuant to the conviction, he
stopped the proceedings and referred the matter to the Limpopo High Court,

3 The inner folds of the skin forming the margins of the vaginal orifice.

Thohoyandou, in terms of the provisions of the section 52 of the Act for
sentencing.

[13]   On 24 December 2001, the matter came before Lukoto J in the court
below. He confirmed the conviction of the appellant. At that stage all the parties
were aware that the prescribed sentence was imprisonment for life in terms of
section 51(1) of the Act. The defence adduced evidence in mitigation. The judge
thereafter proceeded to consider the question of an appropriate sentence. The
judge found that the youthfulness of the appellant as well as other mitigating
factors constituted substantial and compelling circumstances to deviate from
imposing the sentence of imprisonment for life. He imposed a sentence of 39
years’ imprisonment. The appellant appeals against this conviction and
sentence.

[14]   At the commencement of the appeal, counsel for the appellant conceded,
correctly in my view, that the conviction was in order. He advised us that the
appellant had abandoned his appeal against conviction and only persisted in his
appeal against the sentence imposed. In the light of this concession it remains
only for me to consider the appeal against sentence.

[15] Suffice it to state that I agree that there is no merit in the appeal against
conviction. The appellant’s version that he had a long - term relationship with a
12 year old girl was patently false.  If true, that would mean that the relationship
commenced when the complainant was nine or eleven years old. The trial court
observed that she was very young. Furthermore his version that he had sexual

intercourse with her on more than ten occasions is inconsistent with the medical
evidence which clearly showed that the complainant was not sexually active.

[16] On a conspectus of the evidence and the findings of the court below, I am
satisfied that the appellant’s version was correctly rejected. His conviction must
stand. The appeal against conviction therefore fails.

[17] Regarding the appeal against sentence, the imposition of sentence is pre-
eminently within the discretion of the trial court. A court of appeal will be
entitled to interfere with the sentence imposed by the trial court if the sentence
is disturbingly inappropriate or out of proportion to the seriousness of the
offence or is vitiated by a misdirection showing that the trial court exercised its
discretion unreasonably.4

[18]   Counsel for the appellant submitted that the court below, notwithstanding
its conclusion that substantial and compelling circumstances did exist, over-
emphasised the seriousness of the offence and interests of society and imposed a
sentence that is startlingly inappropriate and excessive. Counsel for the
respondent, rightly conceded, that the sentence was indeed shockingly
inappropriate and that this Court should interfere and impose sentence afresh.

[19]    I agree. It is difficult to comprehend how the court below determined the
sentence it imposed in this matter. This Court is at large to interfere.

4 S v Romer 2011 (2) SACR 153 (SCA) para 22.

[20]    It is important for the court to maintain the delicate balance between the
triad. In S v Banda and others5, the court said:
‘The elements of the triad contain an equilibrium and a tension. A court should, when
determining sentence, strive to accomplish and arrive at a judicious counterbalance between
these elements in order to ensure that one element is not unduly accentuated at the expense of
and to the exclusion of the others. This is not merely a formula, nor a judicial incantation, the
mere stating whereof satisfies the requirements. What is necessary is that the Court shall
consider, and try and balance evenly, the nature and circumstances of the offence, the
characteristics of the offender and his circumstances and the impact of the crime on the
community, its welfare and concern. This conception as expounded by the Courts is sound
and is incompatible with anything less.’

[21]   Rape is a horrific offence which deserves severe punishment. In S v
Chapman,6 Mahomed CJ stated:
‘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.’

[22]   The aggravating factors in this case are: the complainant was a very
young girl of 12 years of age. She had not reached puberty and her breasts were
still developing.  She was at an early stage of her sexual development. She
endured the humiliation of being attacked in the sanctity of her home. The
experience left her traumatised and has emotionally affected her.

[23] On the other hand, the appellant’s personal circumstances are that he was
17 years old when the offence was committed and 18 years of age at the time of

5 S v Banda and others 1991 (2) SA 352 (BGD) at 355A-D.
6 S v Chapman 1997 (2) SACR 3 (SCA) at 5B.

sentencing. He was raised by a single parent, his mother and due to financial
constraints left school in Standard 3; he was employed as a general worker and
has no previous convictions.

[24]   The appellant has been convicted of a very serious offence and deserves a
sentence of direct imprisonment. However, the sentence to be imposed must not
have the effect of over – emphasising the elements of retribution and deterrence.
Having regard to all the relevant factors, I am of the considered view that a
sentence of 15 years’ imprisonment will be appropriate under the
circumstances.

[25]     In the result, the following order is made:
1 The appeal against conviction is dismissed and the conviction is confirmed.
2 The appeal against the sentence is upheld.
3 The sentence imposed by the court below is set aside and replaced with the
following:
‘The accused is sentenced to 15 years’ imprisonment.’
4 The sentence is antedated in terms of section 282 of the Criminal
Procedure Act 51 of 1977 to 24 December 2001, being the date upon which
the sentence was imposed.

__________________
N.Z MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

For Appellant:
A L Thomu
Instructed by:
Thohoyandou Justice Centre,

Justice Centre, Bloemfontein

For Respondent:
A Madzhuta
Instructed by:
Director of Public Prosecution, Limpopo
Director of Public Prosecution, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 March 2014
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

PETER MASHUDU NEVILIMADI v THE STATE

The Supreme Court of Appeal (SCA) today, partially upheld an appeal against a decision
of the Limpopo High Court, Thohoyandou in that, the appeal against conviction was
dismissed whilst appeal against sentence was upheld. This court set aside a sentence of 39
years’ imprisonment and replaced it with one of 15 years imprisonment.

Mr Nevilimadi (the appellant) stood trial in the Sexual Offences Court, Thohoyandou,
Limpopo, on a charge of rape. He pleaded not guilty and at the end of the trial was found
guilty of rape involving a girl under the age of 16 years. The magistrate stopped the
proceedings and referred the matter to the Limpopo High Court, Thohoyandou for
sentencing. At that stage, the appellant was 18 years old. The high court found substantial
and compelling circumstances and imposed a sentence of 39 years’ imprisonment.

In this court, the appellant abandoned his appeal against conviction and persisted in his
appeal against sentence. On a conspectus of the evidence and the findings of the court below
this court was satisfied that the appellant’s version was correctly rejected. The conviction was
therefore confirmed.

With regards to the appeal against sentence, this court agreed with counsel for both parties
that the court below, notwithstanding its conclusion that substantial and compelling
circumstances did exist, imposed a sentence that was disturbingly inappropriate and unduly
harsh. This court concluded that, for those reasons, it was entitled interfere and impose
sentence afresh.

After considering all the relevant factors, this court concluded that a sentence of 15 years’
imprisonment would be appropriate under the circumstances.

Accordingly the SCA made an order dismissing the appeal against conviction and upholding
the appeal against sentence. A sentence of 15 years’ imprisonment was imposed. The
sentence was antedated to 24 December 2001, being the date upon which the sentence was
imposed.