THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable
Case no: 432/2020

In the matter between:

AADIEL ESSOP

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Essop v State (Case No. 432/2020) [2021] ZASCA 66 (1 June 2021)

Coram:
DAMBUZA and DLODLO JJA and GOOSEN AJA

Heard:
12 May 2021

Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the
website of the Supreme Court of Appeal and released to SAFLII.
The date and time for hand-down is deemed to be 10h00 on 1 June
2021.

Summary: Criminal law – Sentence – High court on appeal erroneously stating that s 51
(3) of the Criminal Law Amendment Act 105 of 1997 applied – misdirection requiring re –
consideration of trial court’s approach to sentence – trial court not exercising discretion –
on re – consideration of sentence finding that period of imprisonment appropriate – appeal
dismissed.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Kollapen J sitting as court
of first instance):
The appeal is dismissed.
The sentence imposed by the trial court is confirmed.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Dlodlo JA (Dambuza JA concurring):
[1] The appellant was convicted in the Regional Court for the Division of Gauteng (the
trial court) of 45 counts of contravening the provisions of section 24B (1) (a) of the Films
and Publications Act 1 (the Publications Act). The State alleged that the appellant had
unlawfully possessed film, game or publication containing depictions, descriptions or
scenes of child pornography or which advocated, advertised, encouraged, or promoted
child pornography or sexual exploitation of children. The 46th count on which the appellant
was convicted was kidnapping of a minor. The appellant pleaded guilty to all these
charges. His legal representative read and handed in a statement signed by the appellant
in terms of s 112 (2) of the Criminal Procedure Act2 (the Criminal Procedure Act). The
regional court magistrate (the Magistrate) considered all counts together for the purposes
of sentencing and sentenced the appellant to 10 years imprisonment. The Magistrate
granted the appellant leave to appeal. On 17 December 2019, the Gauteng Division of
the High Court, Pretoria (high court) dismissed the appellant’s appeal and confirmed the
sentence imposed by the Magistrate. The appellant unsuccessfully applied for leave to
appeal before the high court. However, he was granted special leave to appeal by this
court.

1 The Films and Publications Act 65 of 1996.
2 The Criminal Procedure Act 51 of 1977.

[2] The State led no evidence. The State accepted the appellant’s plea of guilty upon
the facts set out in his plea. Therein the appellant stated that on 22 June 2014 he visited
the Lenasia shopping mall. En route to his residence, as he drove in the direction of
Johannesburg South, he noticed the complainant at an intersection. He stopped at the
traffic light and the complainant knocked on his car’s window. She asked for a lift to the
nearby squatter camp. He allowed her to get into his car.

[3] According to the appellant, in the car, the complainant signalled to him her
preparedness to do him a favour in exchange for the lift. The appellant understood her as
offering him masturbation or oral sex. He told her that he would take her to his place of
residence where he would give her food and she would take a bath. She agreed. On
arrival at the appellant’s home, she was offered a shower and clean clothing. She
accepted the offer and indeed after a shower the appellant gave her clothing belonging
to his daughter to put on. She was given food to eat. The complainant offered to do the
appellant a favour in exchange for what he had done for her, to which the appellant
responded that he was not interested in having sexual contact with her; instead, he asked
to take some photographs of her. He reached for his camera and proceeded to take
photographs of the complainant. Whilst taking photographs of her he asked her to remove
some of her clothing and then took photographs of parts of her body that were exposed.
Thereafter, he took her back to her home and had to drive in the direction of Lenasia
where he had originally picked her up.

[4] It was at the Grasmere tollgate that the appellant was stopped by the police who
confronted him about the presence of the complainant in his motor vehicle. The appellant
kept quiet and the complainant told the police that he had taken photographs of her when
she was naked. The police searched the appellant’s motor vehicle and found the camera
that he had used in order to take the photographs. The police also found in the vehicle a
cellphone belonging to the appellant that he had also used to take photographs of the
complainant. These images were inspected by the police who thought that they were of
a child pornographic nature. The appellant admitted that the images referred to in the 45
counts fully described in Schedule 1 of the charge sheet were all stored in his cellular

phone and camera. He unreservedly admitted that the images constituted child
pornography for purposes of the Act as they showed bodies or parts of bodies of children
younger than the age of 18 years in circumstances that amounted to sexual exploitation.
He also admitted that the complainant was a female child of 13 years of age when the
offences were committed.

[5] In dismissing the appeal against sentence the high court said that the appellant
was convicted and sentenced to undergo 15 years imprisonment. It then referred to the
provisions of s 51 (3) of the Criminal Law Amendment Act3 (the Minimum Sentence Act),
apparently, having formed the view that the sentencing regime provided for therein was
applicable in this case. This was incorrect. The sentence appealed against was 10 years
imprisonment which the Magistrate had imposed. This misdirection on the part of the high
court enjoined this court to re-consider the sentence imposed by the Magistrate.

[6] However, the judgment of the Magistrate too had its shortcomings. Although, in
passing sentence, the Magistrate referred to the appellant’s personal circumstances, the
mitigating evidence led on his behalf, the prevalence of sexual exploitation of young
children in this country and the fact that the appellant had kidnapped the complainant, it
was apparent the judgment on sentence that the Magistrate considered himself bound to
impose the sentence imposed by the court in Director of Public Prosecutions North
Gauteng v Alberts4. This approach was incorrect. It is trite that in our legal system trial
courts enjoy a wide discretion in determining sentence in every case. Although guidance
from past decisions of higher courts engenders consistency, the primary principle is that
sentencing is a prerogative of a trial court. In this regard trial courts exercise a wide
discretion in determining individualised punishment based on the personal circumstances
of each offender, the gravity of the crime committed and public interest.5 Therefore the
magistrate’s erred in so far as he considered himself bound by a sentence imposed in

3 The Criminal Law Amendment Act 105 of 1997.
4 Director of Public Prosecutions North Gauteng v Alberts [2016] ZAGPPHC 495; 2016 (2) SACR 419 (GP)
(30 June 2016).
5 S v Zinn 1969 2 SA 537 (A) 540G–H.

Alberts. As a result of that error this court is enjoined to consider the issue of sentence
afresh.

[7] Child pornography is a highly pervasive, noxious conduct that has been ravaging
communities in this and many other countries around the world. In this country this
conduct is criminalised under both the Publications Act and the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007. The prohibition of child
pornography in both pieces of legislation demonstrates the seriousness with which the
legislature views the conduct. It is apparent from its inclusion in the Sexual Offences Act
that the offence is considered as part of the sexual offences scourge that is destroying
the fabric of South African communities.

[8] Although the appellant was not charged under the Sexual Offences and Related
Matters Act, ss 19 and 20 of that Act are relevant as they give insight to the seriousness
with which the Legislature considers child pornography. Section 19 prohibits the exposure
or display of images of child pornography, or the causing of such exposure and display
and s 20 prohibits the use of children for creation of child pornography.

[9] In addition, s 28(1)(d) of the Constitution entrenches the right of children protection
from maltreatment, neglect, abuse and degradation.6 In De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division7 the Constitutional Court deprecated child
pornography in these words:
‘In determining the importance of s 27 (1) of the [Publications] Act, it is necessary to examine its
objective as a whole. The purpose of the legislation is to curb child pornography, which is seen
as an evil in all democratic societies. Child pornography is universally condemned for good
reason. It strikes at the dignity of children, it is harmful to children who are used its production ,
and it is potentially harmful because of the attitude to child sex that it fosters and the use to which
it can be put in grooming children to engage in sexual conduct’.

6 Section 28 of the Constitution of the Republic of South Africa 1996.
7 De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004(1) SA 406 CC

[10] It is particularly distressing that the complainant in this case was only 12 years old
at the time of the commission of the offences. The appellant exploited her obviously
distressed background for his personal gratification. I have explained in paragraph 8
above that these offences are considered to fall under the rubric of sexual offences.  It
was submitted on behalf of the appellant that his conduct was less reprehensible than
that of the appellant in Alberts to which the magistrate referred when passing sentence.
In this case the extent of the appellant’s blameworthiness was less than in Alberts, so it
was argued. This submission was premised on Mr Albert’s 144 pornographic
transgressions compared to the appellant’s 45. However, this argument ignored the fact
that the appellant was both the creator and the consumer of pornographic material, a fact
which would not have been lost to the magistrate.

[11] The Magistrate was of the view that although the appellant was a first offender his
criminal conduct took off with a very serious offence. He correctly considered the graphic
nature of some of the photographs, particularly the explicit exposure of the complainant’s
private parts, to be aggravating.

[12] It will be recalled that, apart from the 45 convictions under the Publications Act, the
appellant was also convicted of kidnapping, the 46th count. Kidnaping alone is a serious
offence which if punished separately could easily attract a sentence of up to seven years
imprisonment.

[13] In mitigation of sentence the appellant called a clinical psychologist Ms Hurn and
his ex-wife. The appellant did not himself testify in mitigating of sentence. The State led
the evidence of two probation officers. Before us, an argument was presented that the
appropriate sentence was one of correctional supervision which had been recommended
by the probation officer(s).

[14] The trite basic principle in this regard is that a court is not bound by a
recommendation in a pre-sentence report. Imposition of sentence is a judicial function. In
performing this function the court takes account all recognised sentencing considerations

which include the offender’s personal circumstances, the seriousness of the crime
committed and the well-being of the society. Psychologists and/or psychiatrists are mostly
concerned with diagnosis and rehabilitation of the individual concerned.

[15] This Court has cautioned against attaching undue weight to the well-being of the
offender at the expense of the other aims of sentencing, warning that to do so distorts
sentencing process and will in all likelihood result in a misdirection.8 Whilst the offender’s
personal circumstances are of importance, the natural indignation of interested persons
and community must find expression and recognition in the sentences imposed by the
courts.

[16] The offences of which the appellant was convicted resulted from the same incident.
In my assessment, for the kidnapping of the complainant and the possession of
pornographic material relating to her in the circumstances set out above I would still have
imposed a sentence of 10 years imprisonment.

[17] Accordingly the following order is made.
The appeal is dismissed.
The sentence imposed by the trial court is confirmed.

___________________
DLODLO D V
JUDGE OF APPEAL

8 S v Lister 1993 (2) SACR 228 (A).

Goosen AJA
[18] I have had the benefit of reading the judgment of my brother Dlodlo JA. I am,
however, unable to agree with the outcome. In my view the appeal should succeed in
part, inasmuch as the effective sentence ought to be reduced. Whilst I agree with the
approach that my brother has adopted, I consider it necessary to elucidate a few aspects
regarding the high court’s judgment on appeal as well as that of the trial court.

[19] My brother has summarized the facts in his judgment. It will therefore only be
necessary to highlight those aspects of the evidence relevant to the sentence which I
would propose as outcome of this appeal.

[20] This matter comes before this court pursuant to an order granted in terms of s 17
(2) of the Superior Courts Act, 10 of 2013. The judgment on appeal is accordingly that of
the high court (per Maumela and Kollapen JJ). As is noted by Dlodlo JA, the high court
misdirected itself in regard to the sentence that had been imposed by the trial court and
in relation to the law applicable to such sentence.

[21] The high court correctly outlined the limited jurisdiction of an appellate court when
it deals with a sentence imposed by the trial court. The high court cited the well-known
passage from the judgment of this court in S v De Jager 1965 (2) SA (A) at p 629 where
it was held:
‘It would not appear to be sufficiently recognized that a Court of appeal does not have a general
discretion to ameliorate the sentences of trials Courts. The matter is governed by principle. It is
the trial Court which has the discretion, and a Court of appeal cannot interfere unless the
discretion was not judicially exercised, that is to say unless the sentence is vitiated by irregularity
or misdirection or is so severe that no reasonable court could have imposed it. In this latter regard
an accepted test is whether the sentence induces a sense of shock that is to say if there is a
striking disparity between the sentence passed and that which the Court of appeal would have
imposed. It should therefore be recognized that appellate jurisdiction to interfere with punishment
is not discretionary but, on the contrary, very limited.’

[22] What the court a quo was required to consider was whether the trial court had
exercised its discretion properly and whether the sentence imposed by it was vitiated by
misdirection of fact or law. Again, the court a quo was alive to this, as indicated by its
reference to S v Pillay 1977 (4) SA 531 (A) at p 535E-F, where Trollip JA said,
‘Now the word “misdirection” in the present context simply means and error committed by the
Court in determining or applying the facts for assessing the appropriate sentence. As the essential
enquiry is an appeal against sentence, however, is not whether the sentence was right or wrong,
but whether the Court in imposing sentence exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence; it
must be of such a nature, degree, or seriousness that it shows, directly or inferentially, that the
Court did not exercise its discretion at all or exercised it improperly or unreasonably. Such
misdirection is usually and conveniently termed one that vitiates the court’s decision on
sentence.’9

[23] The high court, however, failed to deal with the trial court’s sentence in these terms.
Had the court a quo approached its consideration of the trial court’s sentence mindful that
it was required to determine whether the trial court had exercised its discretion regarding
sentence, it would undoubtedly have noted that the trial court had not exercised a
discretion at all.

[24] This much appears from the trial court’s judgment where the following is recorded:
‘I was referred to the case of Director of Public Prosecutions, North Gauteng, that is the Director
of Public Prosecutions is the appellant and the matter was sitting in North Gauteng and Gerhardus
Johannes Alberts, that is the respondent. Case number A835/2014.10
This case also involves phonographic (sic) material involving children. Both cases, the offence is
one, namely pornographic material involving children. SAM Bakwa J (sic), that is Honourable
Judge Bakwa imposed a sentence of 10 years imprisonment. The defence has attacked this
decision in argument. We have what we call in our law the [indistinct] and the precedent. The
[indistinct] is binding. That is that of a high court is binding to the lower courts. This is a decision

9 See also Mpofu v Minister for Justice and Constitutional Development and Others [2013] ZACC 15; 2013
(2) SACR 407 (CC).
10 Director of Public Prosecutions North Gauteng v Alberts  [2016] ZAGPPHC 495; 2016 (2) SACR 419
(GP).

of this division according to the precedent system it is binding on this court as a lower court. It is
only where that decision or that case is distinguishable to this one. But as I have already indicated
that the two cases are not distinguishable because both involve pornographic material involving
children. In terms section [. . .] and therefore the case has been followed and applied.’

[25] When regard is had to the judgment in the Alberts matter it is all the more apparent
that the trial court did not exercise a discretion. That matter involved an appeal by the
prosecuting authority against a sentence of an effective five year sentence imposed for
144 counts of possession of child pornography. The sentence imposed by the trial court
was one of five years for each of two sets of convictions. The sentences were ordered to
be served concurrently. On appeal it was held that the sentence was, given the gravity of
the matter, unduly lenient. The court accordingly altered the sentence by overturning the
order that they run concurrently, thereby imposing an effective sentence of ten years
imprisonment. The facts disclosed that the images involved were of a particularly gross
nature, involving the depiction of scenes of sexual assault, rape and sexual violence in
which the victims were very young children. The facts also disclosed that Alberts had not
only accessed the material via the internet, he had gone to the extent of placing orders
for particular type of images.

[26] In the light of the obvious misdirections by both the court a quo and the trial court,
this court is at large to consider an appropriate sentence. The majority judgment, having
carefully considered the nature and seriousness of the offences for which the appellant
has been convicted concludes that a sentence of ten years’ direct imprisonment is
appropriate.

[27] I take a different view. I am in full agreement with Dlodlo JA’s characterization of
the serious nature of the offences and the need for the sentence to properly reflect the
just abhorrence of such conduct. Two aspects of this matter manifest aggravating
features which warrant due recognition in the sentence. The first is that the appellant
kidnapped the child and while she was under his power took her to his home where he
took the photographs of her. The second feature is related. It is that, upon the admitted

facts, he created pornographic images. This act of creating the pornographic images
clearly entailed a physical interaction with the child victim. It is not hard to conceive of the
trauma that must have been visited upon the child.

[28] The appellant was not charged with the offence of manufacturing or producing
pornographic material. He was also not charged with an offence in terms of s 20 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Section
20 (1) provides as follows:
‘(1)  A person (“A”) who unlawfully and intentionally uses a child complainant (“B”), with or without
the consent of B, whether for financial or other reward, favour or compensation to B or to a third
person (“C”) or not—
(a) for purposes of creating, making or producing;
(b) by creating, making or producing; or
(c) in any manner assisting to create, make or produce,
any image, publication, depiction, description or sequence in any manner whatsoever of child
pornography, is guilty of the offence of using a child for child pornography.’

[29] The offence created by this section seeks to address the egregiously harmful
effects of exploitation of children for the purposes of producing pornographic material.  As
stated by the Constitutional Court in De Reuck v Director of Public Prosecutions
(Witwatersrand Local Division) and Others 2003 (12) BCLR 1333 (CC) at para 61:
‘Child pornography is universally condemned for good reason. It strikes at the dignity of children,
it is harmful to children who are used in its production, and it is potentially harmful because of the
attitude to child sex that it fosters and the use to which it can be put in grooming children to engage
in sexual conduct.’

[30] This Court, in Du Toit v The Magistrate and Others [2016] 2 All SA 328 (SCA) at
para 14, held that:
‘A child compromised by a pornographer’s camera has to go through life knowing that the image
is probably circulating within the mass distribution network for child pornography. Because the
child’s actions are reduced to a recorded image, the pornography may haunt him or her long after
the original recording. Citing a wealth of evidence, the Ferber court found that the distribution of

child pornography abused children by creating a permanent record of the child’s participation.
This record, in turn permitted the harm to the child to be exacerbated each time the material was
circulated and led to the creation of distribution networks that fostered further exploitation. (US v
Mathews 209 F3d 338 (4th Cir 2000)). De Reuck (para 64) emphasised that: ‘The psychological
harm to the child who was photographed is exacerbated if he or she knows that the photograph
continues to circulate among viewers who use it to derive sexual satisfaction.’ It follows that the
distribution network for child pornography must be closed if the production of material which
requires the sexual exploitation of children is to be effectively controlled (New York v Ferber).

[31] The appellant was perhaps fortunate not to be charged with an offence under s 20
(1) (b) of Act 32 of 2007. A conviction for the offence of using a child for child pornography
as contemplated by s 20 (1), carries with it a prescribed minimum sentence of 10 years
imprisonment in terms of s 51 of Act 105 of 1997 read with Part III of Schedule 2 to that
Act. While the appellant is not to be punished for a crime for which he was not convicted,
the circumstances under which he came to be in possession of child pornography which
he had produced, are seriously aggravating of the offence of possession.

[32] This, coupled with the fact that he kidnapped the child, places the offences within
the category of serious offences which, in my view, warrant direct imprisonment. I am
accordingly in agreement with Dlodlo JA that a sentence of correctional supervision, as
was proposed at trial, is not an appropriate sentence in the circumstances. It is to be
observed that the offence of kidnapping, where it is carried out by a person in possession
of a firearm, also carries a minimum sentence in terms of s 51. In such case the prescribed
sentence is one of at least five years’ imprisonment. Again, it must be noted that the
appellant is not liable to be sentenced on that basis. Nevertheless, the sentences
mentioned above give some guide as to what may be considered to be appropriate
sentences.

[33] The determination of what constitutes an appropriate sentence, however, requires
consideration of the peculiar personal circumstances of the appellant. It also requires due
consideration of the objects of sentencing and a careful weighing of the interests of

society. The purpose of this exercise is to arrive at a sentence which is proportionate and
which is fair and just.

[34] The trial court observed that the appellant is a well-educated professional man who
was, at the time of the commission of the offences, married and gainfully employed. These
are not factors which, to my mind, are persuasive as mitigatory factors. They are, rather,
neutral inasmuch as one might rightfully expect well educated individuals to be more
conscious of the seriously harmful effects of child pornography on children in particular
and the society in general. One factor which does provide some mitigation is the fact that
he was diagnosed as suffering a paraphilic disorder. This suggests a mental disorder
which manifests as an obsessive interest in sexual gratification by observation. I am
prepared to accept, on the evidence presented at trial, that the disorder gives rise to the
obsession and that it is not merely a description of the obsession. For present purposes
it is to be observed that the evidence presented by Ms. Hearne, the psychologist,
discounts paedophilia as the underlying pathology. According to the evidence there exists
a prospect of rehabilitation.

[35] It was argued that the appellant had not placed before the trial court facts which
suggested remorse on his part. For this reason, little regard could be had to the prospects
of rehabilitation in the absence of a genuine expression of remorse (see S v Matyityi 11).
It is worth noting that there are troubling features in respect of the appellant’s attitude to
the crimes he committed. In his plea explanation he portrayed the child as sexually
suggestive. This portrayal of the child as being prepared to engage in sexual activity and
the perpetrator as being ‘induced’ into the criminal conduct, perpetuates a narrative of
victim-blaming which, all too often, underlies attempts to ameliorate the true nature of the
violation at the heart of sexual and related offences.

[36] The absence of an expression of remorse is indeed a factor which militates against
finding that there is a prospect that the offender will be rehabilitated during a relatively
short period of imprisonment. Nevertheless, the object of imprisonment for a determinate

11 S v Matyityi [2010] ZASCA 127; [2011] 2 All SA 424 (SCA); 2011 (2) SA 40 (SCA) at para 13.

period is premised upon an acceptance of the inherent value of the rehabilitative effect of
imprisonment. The imposition of a period of imprisonment proceeds from the premise that
the sentenced prisoner is likely, after serving the period of imprisonment, to be capable
of re-integration into society. Whether that indeed occurs or whether it may occur prior to
the completion of the imposed sentence, is a matter which falls within the remit of the
authority charged with managing the system of incarceration as legislated. Where it is not
possible to conclude that the likelihood of rapid rehabilitation is high, the sentencing court
will nevertheless proceed on the basis that an appropriate period of imprisonment is likely
to bring about a measure of rehabilitation which will allow for the re-integration of the
offender into the community. If that were not so the very foundation of our penal system
would be called into question. It must therefore be accepted that the appellant can be
appropriately rehabilitated.

[37] This brings me to two final aspects which require consideration. The first concerns
the format of an appropriate sentence. The trial court proceeded on the basis that it was
appropriate to impose a composite or undifferentiated sentence for all of the 45 counts
for which the appellant was convicted. The majority proceeds upon a similar basis. In my
view the offences for which the appellant has been convicted require the imposition of
separate sentences. I accept that in respect of counts 1 to 44 (the possession of forty-
four images depicting child pornography) it is appropriate to consider these as one for
purposes of sentence. However, in respect of the kidnapping charge a separate sentence
ought to be imposed. It is an offence of a wholly different character. Although it was the
basis upon which the further offences came to be committed, it requires the imposition of
a separate sentence in light of the general principle that a court ought to impose separate
and distinct sentences for distinct crimes.

[38] The second aspect which deserves emphasis concerns the objects of sentencing.
As noted earlier the imposition of a determinate sentence proceeds upon the
contemplation that the sentenced prisoner will in due course be re-integrated into society.
It should therefore be determined with this in mind. A sentence also seeks to deter further
criminal conduct. The deterrent purpose is directed broadly at the society by signaling

what may likely follow upon the commission of an offence. The deterrent purpose is,
however, also directed at the offender. It is to meet this latter objective that a sentencing
court is empowered to suspend the implementation of a sentence and to impose
conditions upon which such suspension operates. These mechanisms allow the
sentencing court to construct a sentence which seeks to meet all of the sentencing
objectives while also maintaining a principled commitment to what is fair and just and
proportionate.

[39] I do not consider the sentence imposed by the trial court to be fair and
proportionate. I would accordingly uphold the appeal and sentence the appellant to a
differentiated sentence for counts 1 to 44 and count 45 respectively. I would also suspend
a portion of the total effective sentence in order to provide for a longer term deterrent
effect operative against the appellant, and to facilitate the achievement of the
rehabilitation and re-integration of the appellant into society.

[40] In the result I would order as follows:
1.
The appeal is upheld in part as reflected in the order below.
2.
The sentence imposed by the trial court is set aside and is replaced with the
following:
‘1.
In respect of counts 1 to 44 the accused is sentenced to 7 years’ imprisonment.
2.
In respect of count 45 the accused is sentenced to 5 years imprisonment.
3.
It is ordered that 2 years of the sentence on count 45 is to be served concurrently
with the sentence on counts 1 to 44.
4.
It is further ordered that 3 years of the sentence on counts 1 to 44 is suspended
for a period of 5 years on condition that the accused is not convicted of an offence in
terms of the Films and Publications Act 65 of 1996 and / or the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, within the period of
suspension.’

_____________________
GOOSEN G.
ACTING JUDGE OF APPEAL

APPEARANCES:
For the Appellant:

P Du Plessis
Instructed by:

BDK Attorneys, Johannesburg

Honey Attorneys, Bloemfontein

For the Respondent:

PW Coetzer
Instructed by:

Director of Public Prosecution, Pretoria

Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

1 June 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Essop v State (Case No. 432/2020) [2021] ZASCA 66 (1 June 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment dismissing an appeal from the
Gauteng Division of the High Court, Pretoria (high court) against the sentence imposed by the Regional
Court for the Division of Gauteng (the trial court). The SCA confirmed the sentence imposed by the
regional court.

The appellant was convicted in the trial court of 45 counts of contravening the provisions of section 24B
(1) (a) of the Films and Publications Act 1 (the Publications Act) after pleading guilty to all charges
against him. The 46th count on which the appellant was convicted was kidnapping of a minor. On appeal
to the high court, the appellant’s appeal was dismissed, and the sentence imposed by the Magistrate
was confirmed. One special leave to appeal granted by the SCA, the appellant argued in mitigation of
the sentence imposed.

The majority, Dlodlo JA (Dambuza JA concurring) found that the approach adopted by the trial court
was incorrect as it considered itself bound to impose the sentence imposed by the court in Director of
Public Prosecutions North Gauteng v Alberts2 and reminded the trial court that enjoys a wide discretion
in determining sentence in every case as sentencing is a prerogative of a trial court. With this in mind
and mindful of the fact that child pornography is a highly pervasive, noxious conduct that has been
ravaging communities in this and many other countries around the world, the majority found that the

1 The Films and Publications Act 65 of 1996.
2 Director of Public Prosecutions North Gauteng v Alberts [2016] ZAGPPHC 495; 2016 (2) SACR 419
(GP) (30 June 2016).

offences of which the appellant was convicted resulted from the same incident and the circumstances
set out a sentence of 10 years imprisonment would still have been imposed.

Goosen AJA, writing the minority judgment stated that the appeal should succeed in part, inasmuch as
the effective sentence ought to be reduced. Goosen AJA expressed the view that the high court did not
adequately consider whether the trial court had exercised its discretion properly and whether the
sentence imposed by it was vitiated by misdirection of fact or law, stating that had it done so it would
undoubtedly have noted that the trial court had not exercised a discretion at all. Due the misdirections
by both high court and the trial court, Goosen AJA was of the view that the SCA was at liberty to consider
an appropriate sentence and in so doing found that the sentence imposed by the trial court was not fair
and proportionate and therefor accordingly uphold the appeal and sentence the appellant to a
differentiated sentence for counts 1 to 44 and count 45 respectively.

~~~~ends~~~~