THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

CASE NO: 576/07

BONGANI PHILLIP VILAKAZI
Appellant

and

THE STATE
Respondent

Neutral citation:
Vilakazi v The State (576/07) [2008] ZASCA 87 (2 September
2008)
Coram:
STREICHER, NUGENT, MLAMBO, MAYA JJA and
HURT AJA
Heard:
5 MAY 2008
Delivered:
2 SEPTEMBER 2008
Corrected:
3 SEPTEMBER 2008
Summary:
Sentence – rape – sentencing principles.
_______________________________________________________________
ORDER
_______________________________________________________________

On appeal from:
High Court, Transvaal Provincial Division (Els J sitting as
court of first instance)
[1] The appeal against sentence is upheld. The sentence imposed upon the
appellant is set aside and the following sentence is substituted:

‘The accused is sentenced to fifteen years’ imprisonment from which two
years are to be deducted when calculating the date upon which the sentence is
to expire.’

______________________________________________________________
JUDGMENT
______________________________________________________________
NUGENT JA (STREICHER, MLAMBO, MAYA JJA and HURT AJA
concurring)

[1] Rape is a repulsive crime. It was rightly described by counsel in this
case as ‘an invasion of the most private and intimate zone of a woman and
strikes at the core of her personhood and dignity’. In S v Chapman1 this court
called it a ‘humiliating, degrading and brutal invasion of the privacy, dignity
and the person of the victim’ and went on to say that
‘[w]omen in this country…have a legitimate claim to walk peacefully on the streets, to
enjoy their shopping and their entertainment, to go and come from work, and to enjoy the
peace and tranquility of their homes without the fear, the apprehension and the insecurity
which constantly diminishes the quality and enjoyment of their lives.’

[2] Yet women in this country are still far from having that peace of mind.
According to a study on the epidemiology of rape
‘the evidence points to the conclusion that women’s right to give or withhold consent to
sexual intercourse is one of the most commonly violated of all human rights in South
Africa.’2

1 1997 (3) SA 341 (SCA) 345A-B.
2 Rachel Jewkes and Naeema Abrahams ‘The Epidemiology of Rape and Sexual Coercion in South Africa:
An Overview’ Social Science and Medicine 55 (2002) 1231-1244.

During 2007 as many as 36 190 reports of rape were made to the police.3
Perhaps in some cases the report was false but the figure is nonetheless
staggering bearing in mind that rape is notoriously under-reported. It is also
notorious that relatively few offenders are caught and convicted.
[3] There is considerable risk in those circumstances that excessive
punishment will be heaped on the relatively few who are convicted in
retribution for the crimes of those who escape or in the despairing hope that it
will arrest the scourge.4 But the Constitutional Court reminded us in S v Dodo5
that punishment must always be proportionate to the deserts of the particular
offender – no less but also no more – for all human beings ‘ought to be treated
as ends in themselves, never merely as means to an end’.6

[4] In the case that I referred to earlier Chapman was said to have ‘prowled
the streets and shopping malls and in a short period of one week he raped
three young women, who were unknown to him. He deceptively pretended to
care for them by giving them lifts and then proceeded to rape them callously
and brutally, after threatening them with a knife’.7 This court (Mahomed CJ,
Van Heerden and Olivier JJA) described the sentence that he received as
‘undoubtedly severe’ but declined to interfere, saying that it was ‘determined
to protect the equality, dignity and freedom of all women…we shall show no
mercy to those who seek to invade those rights’.8 For each of his crimes
Chapman was sentenced to 7 years’ imprisonment with the effective sentence
being 14 years’ imprisonment.9

3 Crime statistics on www.saps.gov.za.
4 According to S.S. Terblanche A Guide to Sentencing in South Africa 2ed para 8.3.2 the assumption that
drastic sentences deter crime has little support.
5 2001 (3) SA 382 (CC).
6 Para 38.
7 At p 345C.
8 At p 345D.
9 The sentence on one count was to run concurrently with the sentences on the other two counts.

[5] Chapman was sentenced before ss 51 and 52 of the Criminal Law
Amendment Act 105 of 1997 (for convenience I will refer to those sections as
the Act) introduced a minimum sentencing regime. But the sentence that was
imposed in that case is not unduly out of line with the minimum sentence that
is prescribed by the Act. The Act prescribes a minimum sentence for rape of
10 years’ imprisonment in the absence of specified aggravating circumstances
(none of which appear to have been present in that case) and multiple
sentences imposed under the Act are capable of being served concurrently.

[6] In the present case the appellant was convicted on one count of rape and
sentenced to life imprisonment. What accounts for the enormous disparity
between the sentence in Chapman and the sentence in this case is that in this
case the appellant’s victim was under the age of 16 years. The Act prescribes
that on that account alone the ordinary minimum sentence for rape of 10
years’ imprisonment should instead be the maximum sentence that is
permitted by our law, which is life imprisonment.

[7] This appeal is against that sentence. The appellant was convicted in the
regional court at Volksrust and was committed to the High Court for sentence
as required by s 52 of the Act. The Act prescribes that the minimum sentence
must be imposed unless the court is satisfied that substantial and compelling
circumstances exist that justify a lesser sentence. In this case the High Court at
Pretoria (Els J) found that no such circumstances existed and sentenced the
appellant accordingly. An application to that court some three years later for
leave to appeal against both the conviction and the sentence failed. Leave was

subsequently granted by this court to appeal against sentence. Why the appeal
process has taken so long is not now material.

[8] Leave to appeal was granted by this court with directions that certain
issues in particular should be addressed. At the time the appellant petitioned
this court he had no legal representation and Mr Trengove SC was requested
to act as amicus curiae to assist this court in reaching a proper conclusion. We
are grateful to him, and to Ms Steinberg and Ms Goodman who agreed to
assist him, for their willingness to accept the appointment. By the time the
matter reached this court the Legal Aid Board had appointed counsel (Mr
Bredenkamp SC and Mr Alberts) to represent the appellant. The Centre for
Applied Legal Studies and the Tshwaranang Legal Advocacy Centre applied
for and were granted leave to address this court on issues of general
application relating to the Act and were represented by Ms Moroka SC and
Ms Pillay. The state was represented by Mr De Meillon. Although leave to
appeal was granted only against sentence Mr De Meillon properly accepted
that the appeal might be broadened to include the conviction if upon reflection
on the evidence we were to be of the view that the appellant should not have
been convicted.10

[9] The Act came into effect on 1 May 1998 for a period of two years but
was capable of being extended for two years at a time by proclamation. It was
introduced in response to the upsurge in serious crime and was described by
the Minister of Justice at the time as ‘drastic’ but temporary.  Parliament was
told by the portfolio committee that the Act
‘is to be regarded as a precursor to a fully fledged sentencing guideline system that will
inevitably take some time to evolve. Hence the provision to limit the life span of the Act to

10 The record of the trial was not before this court when the petition was considered.

two years, after which the President with the concurrence of Parliament will be able to
extend its operation one year at a time.’11

[10] A sophisticated system to construct guidelines for consistency in
sentencing that would take account of the views of all interested parties was
subsequently recommended by the South African Law Commission in
December 2000.12 The recommendation was made after a comprehensive
review of sentencing practice in this country and abroad, where sentencing
guidelines in one form or another are common.13 But drastic legislation has a
propensity to become permanent once it has become familiar. The
sophisticated guideline-system recommended by the Law Commission, which
I suspect would have been welcome to many judges who face the difficult task
of sentencing, was not introduced. Instead the temporary regime provided for
in the Act was consistently extended and has now been entrenched (with some
amendments) by the Criminal Law (Sentencing) Amendment Act 2007.14

[11] The sentencing regime that is provided for in the Act bears little
relationship to the systems I have referred to, all of which are structured to
give due weight to the numerous combinations of variables that accompany
the commission of crime. In contrast the Act purports to cover the field of
serious crime in no more than a handful of blunt paragraphs.

11 Second Reading Debate: Hansard 6 November 1997 column 6089.
12 Project 82: ‘Sentencing (A New Sentencing Framework)’
13 In South Australia, for example, the Criminal Law (Sentencing) (Sentencing Guidelines) Act 2003
empowers the Full Court to establish sentencing guidelines. In New South Wales the Criminal Court of
Appeal has itself assumed jurisdiction to do so (See R v Henry, Barber, Tran, Silver, Tsoukatos, Kyroglou,
Jenkins [1999] NSWCCA 111). In England the Criminal Justice Act 2003 created a Sentencing Guidelines
Council that has established sophisticated guidelines on the recommendation of a Sentencing Advisory Panel
(see, for example, ‘Guidelines on Sexual Offences’ at http://www.sentencing-guidelines.gov.uk/guidelines/
council/final.html). Across the Atlantic the Minnesota Sentencing Guidelines Commission (created under
1978 Minn. Laws, ch. 723) has established a sophisticated framework of advisory sentence-ranges that are
presumed to be appropriate to particular crimes with scope for the courts to depart from them where that is
justified by ‘substantial and compelling circumstances’.
14 That Act took effect on 31 December 2007.

[12] The Act demands the imposition of the prescribed minimum sentences
unless a court is satisfied in a particular case that there are ‘substantial and
compelling circumstances’ that justify the imposition of a lesser sentence. I
have pointed out that in the case of rape the sentence that is considered to be
ordinarily appropriate is 10 years’ imprisonment. But there are eight
circumstances in which the sentence prescribed for the crime is imprisonment
for life.  I have mentioned one such circumstance: where the victim is a girl
who is under the age of 16 years. The other seven are the following:15
‘(i)
Where the victim was raped more than once whether by the accused or by any co-
perpetrator or accomplice;
(ii)
[When the crime was committed by] more than one person, where such persons
acted in the execution or furtherance of a common purpose or conspiracy;
(iii)
[When the crime was committed] by a person who has been convicted of two or
more offences of rape, but has not yet been sentenced in respect of such
convictions;
(iv)
[When the crime was committed] by a person, knowing that he has the acquired
immune deficiency syndrome or the human immunodeficiency virus;
(v)
Where the victim is a physically disabled woman who, due to her physical
disability, is rendered particularly vulnerable;
(vi)
Where the victim is a mentally ill woman as contemplated in section 1 of the Mental
Health Act, 1973;
(vii)
[Where the crime involved] the infliction of grievous bodily harm.’

[13] What is striking about that regime is the absence of any gradation
between 10 years’ imprisonment and life imprisonment. The minimum
sentence of 10 years’ imprisonment progresses immediately to the maximum
sentence that our law allows once any of the aggravating features is present,

15 Schedule 2 Part I read with s 51(1).

irrespective of how many of those features are present, irrespective of the
degree in which the feature is present, and irrespective of whether the
convicted person is a first or repeat offender. On the face of it a first-offending
18 year old boy who rapes his 15 year old girlfriend on one occasion must
receive the same sentence as a recidivist serial rapist who repeatedly gang-
rapes and beats senseless a disabled victim whom he consciously infects with
HIV. The 18 year old boy who rapes his 15 year old girlfriend must also
receive the same sentence as the adult recidivist who rapes an infant. The
offender who imprisons and rapes his victim repeatedly every day for a week
is considered to be no more culpable than one who rapes his victim twice
within ten minutes. It requires only a cursory reading of the Act to reveal other
startling incongruities. And when the sentences that are prescribed for rape in
various circumstances are related to sentences prescribed for other crimes
even more incongruities emerge. It is not surprising that the leading writer on
the subject of sentencing in this country, Professor Terblanche, advanced the
following acerbic observation on the Act ten years after it took effect:16
‘I have criticised the Act elsewhere17 and, if anything, have become more critical with time.
There is hardly a provision in sections 51 to 53 that is without problems. The number of
absurdities that have been identified and which will no doubt be identified in future is
simply astounding. The Act’s lack of sophistication disappoints from beginning to end.
There are too many examples of disproportionality between the various offences and the
prescribed sentences.’

[14] It is only by approaching sentencing under the Act in the manner that
was laid down by this court in S v Malgas18 – which was said by the

16 S.S. Terblanche, above, p. 75.
17 2003 Acta Juridica 218-220 and (2001) 14 SACJ 18-19.
18 2001 (2) SA 1222 (SCA).

Constitutional Court in S v Dodo to be ‘undoubtedly correct’19 – that
incongruous and disproportionate sentences are capable of being avoided.
Indeed, that was the basis upon which the Constitutional Court in Dodo found
the Act to be not unconstitutional. For by avoiding sentences that are
disproportionate a court necessarily safeguards against the risk – and in my
view it is a real risk – that sentences will be imposed in some case that are so
disproportionate as to be unconstitutional. In that case the Constitutional Court
said that the approach laid down in Malgas, and in particular its
‘determinative test’ for deciding whether a prescribed sentence may be
departed from,
‘makes plain that the power of a court to impose a lesser sentence … can be exercised well
before the disproportionality between the mandated sentence and the nature of the offence
becomes so great that it can be typified as gross’ [and thus constitutionally offensive].20
That ‘determinative test’ for when the prescribed sentence may be departed
from was expressed as follows in Malgas and it deserves to be emphasised:
‘If the sentencing court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society, so that an
injustice would be done by imposing that sentence, it is entitled to impose a lesser
sentence.’ 21

[15] It is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent upon a court in every case, before it
imposes a prescribed sentence, to assess, upon a consideration of all the
circumstances of the particular case, whether the prescribed sentence is indeed
proportionate to the particular offence. The Constitutional Court made it clear

19 Para 40.
20 Para 40.
21 Para 25.

that what is meant by the ‘offence’ in that context (and that is the sense in
which I will use the term throughout this judgment unless the context indicates
otherwise)
consists of all factors relevant to the nature and seriousness of the criminal act itself, as well
as all relevant personal and other circumstances relating to the offender which could have a
bearing on the seriousness of the offence and the culpability of the offender.’22
If a court is indeed satisfied that a lesser sentence is called for in a particular
case, thus justifying a departure from the prescribed sentence, then it hardly
needs saying that the court is bound to impose that lesser sentence. That was
also made clear in Malgas, which said that the relevant provision in the Act
‘vests the sentencing court with the power, indeed the obligation, to consider whether the
particular circumstances of the case require a different sentence to be imposed. And a
different sentence must be imposed if the court is satisfied that substantial and compelling
circumstances exist which ‘justify’…it’.23

[16] It was submitted before us that in Malgas this court ‘repeatedly
emphasised’ that the prescribed sentences must be imposed as the norm and
are to be departed from only as an exception. That is not what was said in
Malgas. The submission was founded upon words selected from the judgment
and advanced out of their context. The court did not say, for example, as it
was submitted that it did, that the prescribed sentences ‘should ordinarily be
imposed’. What it said is that a court must approach the matter ‘conscious of
the fact that the Legislature has ordained [the prescribed sentence] as the
sentence which should ordinarily and in the absence of weighty justification
be imposed for the listed crimes in the specified circumstances’24 (the
emphasis in bold is mine). In the context of the judgment as a whole, and in

22 Para 37.
23 Para 14.
24 Para 25 at part B of the summary of its conclusions.

particular the ‘determinative test’ that I referred to earlier, it is clear that the
effect of those qualifications is that any circumstances that would render the
prescribed sentence disproportionate to the offence would constitute the
requisite ‘weighty justification’ for the imposition of a lesser sentence.

[17] I need not repeat all the other passages that were selectively relied upon
to support the submission. It is sufficient to say that when placed in their
context none supports the submission. Indeed, the court could hardly have
held that the various sentences are indeed proportionate to the particular
crimes – and thus to be imposed as the norm – when it did not even pertinently
consider the various sentences for the various crimes. To say that a court must
regard the sentence as being proportionate a priori and apply it other than in an
exceptional case runs altogether counter to both Malgas and Dodo. Far from
saying that the circumstances in which a court may (and should) depart from a
prescribed sentence will arise only as an exception Malgas said:
‘Equally erroneous…are dicta which suggest that for circumstances to qualify as
substantial and compelling they must be ‘exceptional’ in the sense of seldom encountered
or rare. The frequency or infrequency of the existence of a set of circumstances is logically
irrelevant to the question of whether or not they are substantial and compelling.’25

[18] It is plain from the determinative test laid down by Malgas, consistent
with what was said throughout the judgment, and consistent with what was
said by the Constitutional Court in Dodo, that a prescribed sentence cannot be
assumed a priori to be proportionate in a particular case. It cannot even be
assumed a priori that the sentence is constitutionally permitted. Whether the
prescribed sentence is indeed proportionate, and thus capable of being
imposed, is a matter to be determined upon a consideration of the

25 Para 10.

circumstances of the particular case. It ought to be apparent that when the
matter is approached in that way it might turn out that the prescribed sentence
is seldom imposed in cases that fall within the specified category. If that
occurs it will be because the prescribed sentence is seldom proportionate to
the offence. For the essence of Malgas and of Dodo is that disproportionate
sentences are not to be imposed and that courts are not vehicles for injustice.

[19] In a variation upon the earlier submission it was also submitted that the
prescribed sentence must be imposed in ‘typical’ cases and may be departed
from only where the case is atypical. We were not told what constitutes a
‘typical’ case nor how such a case is to be identified. All that is typical of
cases that fall within a specified category is that they have the characteristics
of that category. But for that, no case can be said to be ‘typical’. The
submission finds no support in Malgas or in logic and it has no merit.

[20] I do not think it is helpful to revisit constructions of the Act that were
considered and rejected in Malgas, as much of the argument before us
attempted to do. I have pointed out that the essence of the decisions in Malgas
and in Dodo is that a court is not compelled to perpetrate injustice by
imposing a sentence that is disproportionate to the particular offence. Whether
a sentence is proportionate cannot be determined in the abstract, but only upon
a consideration of all material circumstances of the particular case, though
bearing in mind what the legislature has ordained and the other strictures
referred to in Malgas. It was also pointed out in Malgas that a prescribed
sentence need not be ‘shockingly unjust’ before it is departed from for ‘one

does not calibrate injustices in a court of law’.26 It is enough for the sentence
to be departed from that it would be unjust to impose it.

[21] The prosecution of rape presents peculiar difficulties that always call for
the greatest care to be taken, and even more so where the complainant is
young. From prosecutors it calls for thoughtful preparation, patient and
sensitive presentation of all the available evidence, and meticulous attention to
detail. From judicial officers who try such cases it calls for accurate
understanding and careful analysis of all the evidence. For it is in the nature of
such cases that the available evidence is often scant and many prosecutions
fail for that reason alone. In those circumstances each detail can be vitally
important. From those who are called upon to sentence convicted offenders
such cases call for considerable reflection. Custodial sentences are not merely
numbers. And familiarity with the sentence of life imprisonment27 must never
blunt one to the fact that its consequences are profound.

[22] The case that is before us is characterized by superficiality from
beginning to end with the result that it exhibits several disturbing features.
Nothing was done to enquire into material matters before the trial commenced.
The complainant’s evidence was presented with little care for completeness
and accuracy. The evidence was subjected to little analysis. And the process of
sentencing was perfunctory.

[23] Section 52 of the Act requires a regional court, if it has convicted an
accused person of an offence for which life imprisonment is prescribed, to
stop the proceedings and commit the accused for sentence by a high court. The

26 Para 23.
27 Prisoners serving sentences of life imprisonment increased ninefold from 1998 to 2008 (see para 51 below).

process provided for in that section is ‘designed to place the High Court in the
same position as the trial court after it has convicted the accused’,28 which
contemplates that the high court will familiarize itself sufficiently with the
material facts surrounding the commission of the offence to be in that
position. The section provides that ‘unless the high court is not satisfied that
the accused is guilty’ it must make a formal finding of guilty and proceed to
sentence the accused accordingly.29 Although that is framed in the negative I
venture to suggest that a court that is sufficiently familiar with the material
facts to enable it to properly assess the sentence ought never to be in the
position of sentencing without having formed the view that the conviction is
indeed sound.

[24] In this case the court below recorded that it had read the record and was
satisfied that the appellant was properly convicted but features of the
subsequent judgment that I presently refer to do not inspire confidence. A
finding of guilty having formally been entered that was followed by
submissions by counsel for the appellant that were decidedly brief – they take
up a mere forty lines in the record. I call them submissions but they were
really no more than a recital of the appellant’s personal circumstances – that
he was 30 years old, lived with a female partner and their three children, was
in fixed employment earning approximately R700 per week, and was a first
offender.30 The learned judge then delivered a judgment that takes up 30 lines.
Brevity is naturally not a vice but what was said in those lines was mostly
formalistic and a repetition of the appellant’s personal circumstances. Of the
offence itself the learned judge said no more than that raping a girl under the

28 S v Dzukuda, S v Tshilo 2000 (4) SA 1078 (CC) para 18.
29 Section 52(2)(b).
30 He has one conviction for possession of dagga but the court below correctly regarded that to be immaterial.

age of 16 years is a serious offence against which society is entitled to be
protected, which goes without saying. What he also said in the judgment is
that at the time the offence was committed the complainant was 11 years old,
that she was a ‘sufferer of epilepsy’, and that she was ‘to a degree mentally
impaired’, all of which he clearly considered to be aggravating. He concluded
by saying that ‘taking everything into account’ he could not find
circumstances that justified a departure from the prescribed sentence of life
imprisonment and he sentenced the appellant accordingly.

[25] It is convenient at the outset to deal with the three features relating to
the complainant that the court below took account of in weighing what
sentence to impose. (All the quotations from the record that follow are my
translations with the original evidence in footnotes.)

[26] The complainant was not 11 years old when the offence was committed.
According to the complainant she was 15 when she gave evidence,31 which
places her age at between 14 and 16 when the offence was committed. (In
answer to a question the complainant, who had no formal schooling, said that
she could not remember the date of her birth32). A witness33 who encountered
the complainant for a short time on the day the incident occurred said that he
‘estimated her age to be about 11 or 12 years’ but that evidence naturally
carries no weight. The district surgeon who examined the complainant on the
day of the incident recorded her age as 13 years. The source of that
information was not disclosed and nobody bothered to enquire nor to query its
inconsistency with the evidence of the complainant. The magistrate estimated

31 On 7 June 2000. The offence was committed on 17 September 1999.
32 ‘Ek vergeet wanneer ek is gebore’.
33 Mr Nkosi, who I will refer to later in this judgment.

her age to be below 16 years and her own evidence of her age was accepted by
the prosecution and the defence alike both at the trial and in the proceedings
before us. The age of the complainant at the time the offence occurred was
clearly a material factor to be taken account of in sentencing. To take account
of the fact that she was 11 when in fact she was at least 14 and might have
been over 15 was a misdirection.

[27] The evidence that founded the other two statements emanated from the
district surgeon who examined the complainant on the day that the incident
occurred but what was said by the court below does not accurately reflect that
evidence. The evidence of the district surgeon was not that the complainant
suffered epilepsy nor that she was mentally impaired. His evidence was that
the complainant gave a history of those conditions. The district surgeon made
no such diagnosis himself. Precisely what the complainant told the district
surgeon was not disclosed and once more nobody bothered to ask either the
district surgeon or the complainant. The evidence was strictly not even
admissible as proof of the existence of those conditions but the misdirection
goes further than that.

[28] It appears from a standard medical textbook34 that epilepsy is not a
single condition but describes a variety of conditions characterized by cerebral
seizures that might manifest themselves in various ways and with varying
intensity and at varying intervals. In the period between seizures normal
functional capacity may be altogether unaffected. In some cases seizures that
manifest themselves in early childhood dissipate over time and may abate
altogether by the time the child reaches adolescence. I do not pretend to an

34 Henry L. Barnett MD with the collaboration of Arnold H. Einhorn MD Pediatrics 14ed (Meredith) pp. 947-
969.

understanding of epilepsy nor do I suggest for a moment that what I have
given is a comprehensive or properly informed account. The textbook that I
have referred to deals with the matter in no less than 24 pages. I also do not
suggest that a court is entitled to school itself in medical matters by referring
to textbooks. I have given this account of what appears in a medical textbook
only to illustrate that a ‘history of epilepsy’ is by itself quite meaningless
without knowing what that history is. To take account of the fact that the
complainant was a ‘sufferer of epilepsy’ without any evidence that she was,
without the slightest knowledge of the form that it took if she was indeed such
a sufferer, and without the slightest indication of its relevance to the offence or
any consequences of the offence, was a clear misdirection.

[29] The evidence also does not disclose what was told to the district
surgeon that caused him to record a history of mental impairment and again
nobody bothered to ask. Explaining what the term meant the district surgeon
said the following:
‘If a person looks at mental impairment it means only that your IQ is lower than 85. So she
can function normally, communicate, and so on. It means only that she has limited
intellectual capacity.’
It seems unlikely that the complainant would have known what her
intelligence quotient was and it is not even certain that it has ever been tested.
Certainly there are signs in the record of her evidence that her intelligence is
limited but I have found nothing to place it at more than that. Neither the
prosecutor nor the magistrate appear to have noticed anything untoward in that
regard. (The magistrate remarked upon the matter only once he saw the
observation in the medical report.) Nor did anything untoward strike the
witnesses who interacted with the complainant. (In his judgment the
magistrate recorded that the police officer had said that the complainant

appeared to him not to be altogether normal but in truth the police officer said
the opposite.) The only evidence of the district surgeon’s own observations
emerged in response to the question whether the complainant’s ability to
communicate was limited in any way, to which he answered:35
‘I did not do a psychometric evaluation of the patient but she could conduct a meaningful
conversation with me and give a reasonably clear history of her background but I did not do
a psychometric evaluation.’
To bring to account the fact that the complainant was mentally impaired
without any knowledge at all of her mental state was another misdirection.

[30] But I think the court below misdirected itself even more fundamentally.
I have pointed out that the judgment of the court below contains no evaluation
of the circumstances in which the offence was committed. By itself that does
not mean that they were not evaluated for in most cases a judgment will not
incorporate everything that exercised the mind of a court. But in this case I am
driven to the conclusion – from the misdirections I have referred to, the
paucity of the preceding argument, and the tenor and brevity of the judgment –
that if there was any evaluation of the evidence it must have been superficial
at most. The clear impression I have is that the matter was approached on the
basis that the prescribed sentence would be imposed as a matter of course
unless the personal circumstances of the appellant disclosed it to be an
exceptional case. I think I have made it clear that an approach of that kind is
not permissible. The court was required by Malgas to apply its mind to
whether the sentence was proportional to the offence (in the wide sense that I
have described) and I think it is fair to conclude that the court failed altogether
to do so.

35 ‘Ek het nie ‘n psigometriese evalusie van die pasiënt gedoen nie maar sy kon ŉ sinvolle gesprek met my
voer en redelik duidelike geskiedenis gee van haar agtergrond maar ek het nie ŉ psigometriese evaluasie
gedoen.’

[31] On each one of the grounds that I have referred to the court below
materially misdirected itself and the sentence that it imposed cannot stand,
which means that we must ourselves evaluate whether life imprisonment is
indeed a proportionate sentence, in accordance with the approach that was laid
down in Malgas.

[32] A singular feature of the complainant’s evidence is that she pointedly
refrained from identifying the appellant in the course of her evidence. It is
abundantly clear that the man she was referring to was indeed the appellant
and for convenience I will narrate her evidence with that adaptation.

[33] The complainant lived in a place called Driefontein. She had no formal
schooling and quite evidently lived in poor circumstances. On the day in
question she had been visiting at a nearby mine and she was walking home in
the late afternoon. The appellant came driving by in what appears to have been
a tanker-truck that is used for spraying water onto gravel roads and he stopped
to give her a lift. After traveling for a while the appellant turned the truck off
the road into a plantation where he stopped.

[34] According to the complainant both she and the appellant alighted from
the truck and sat in the plantation for some time. For how long they sat in the
plantation, and what was occurring while they sat there, does not appear from
the evidence because nobody bothered to ask. The complainant said that the
appellant then went to the truck and returned with a condom which he put on.
She said that he then ‘caught me and had sexual intercourse with me’36 on two

36 ‘Hy het my gevang en vleeslike gemeenskap met my gehad.’

occasions. She said that this occurred without her consent.37 On being asked in
cross-examination whether the appellant had covered his face when he raped
her the complainant answered: ‘He covered my mouth’.38 Once intercourse
was completed the appellant departed in his truck saying that he was going to
fetch water (meaning, apparently, that he was going to fill the tanker).

[35] Meanwhile the complainant waited in the plantation for the appellant to
return. It appears that she was waiting for him to return so that she could be
driven home, because in response to the question whether she was cross that
she had to wait for what she said was a ‘long time’ she said:
‘Yes. I was cross and I decided let me rather get a lift from another vehicle.’39
She then walked to the road where she was encountered hitch-hiking by a
passing motorist, Mr Nkosi, who stopped to give her a lift.

[36] Mr Nkosi’s evidence as to what then occurred does not altogether
coincide with a written statement that he signed the same day nor with the
evidence of the complainant. The magistrate found that Mr Nkosi was an
honest witness and I have no doubt that that is correct. But even honest
witnesses have the capacity for error and reconstruction and at times place
events in the incorrect sequence.

[37] According to Mr Nkosi the complainant was hitch-hiking when he
encountered her and he stopped. As she was approaching him he said she must
make haste as he was in a hurry. In evidence he said that she was walking ‘as
if her legs were stiff’, that she was crying, and that she looked from time to

37 ‘Ek het nooit toestemming gegee nie.’
38 ‘Hy het my mond toegemaak.’
39 ‘Ja, ek was kwaad en ek het besluit laat ek liewers geleentheid kry by ŉ ander voertuig.’

time into the bushes. In his statement he said that before he stopped he
‘noticed that [she] is scared or looked like a person who is injured and she was
looking or suspicious looking in the bushes’, but made no mention of the fact
that she was crying.

[38] The complainant herself did not say that she was crying, and from her
account of why she came to be hitch-hiking, there is no reason to think that
she was. It is likely that she was in tears at a later stage, when she was being
questioned by Mr Nkosi, but that is something else. No doubt the complainant
exhibited signs of pain, or at least discomfort, as she walked towards Mr
Nkosi, bearing in mind the findings at a medical examination that I will come
to presently. There is also no reason to doubt that she indeed glanced into the
bush as she approached or entered the vehicle. On her account of what had
occurred I do not think that is significant, though it undoubtedly prompted Mr
Nkosi to suspect that she had been with someone else.

[39] I think it is clear that the further interchanges to which Mr Nkosi
testified took place after the complainant had entered the vehicle and they had
driven off. I think it is also clear that the complainant did not volunteer an
account to Mr Nkosi of what had occurred, but that the account she gave him
emerged in response to questioning on his part.

[40] Mr Nkosi said that he asked the complainant what she had been doing
in the plantation and she replied that she was afraid to tell him. His statement
records that when he asked her that ‘she became shy’ and he ‘immediately
suspected there is something wrong.’ That is broadly consistent with the
evidence of the complainant, who said that after she boarded the vehicle Mr

Nkosi asked her what she had been doing in the plantation and with whom had
she been, to which she replied that she had been sitting alone after the person
who had taken her there had left.

[41] The complainant then gave an account of events that she said had
occurred, which unfolded in response to Mr Nkosi’s questions. According to
Mr Nkosi the complainant told him that she had been given a lift by the driver
of a truck and that he had driven into the bush and raped her. She also told him
that ‘they said that they were going to kill her if she spoke about what had
happened in the bush’.40 Her reference to more than one person puzzled him at
first and on further questioning she confirmed that only one person had been
present. In the course of their interchange she also told him that after she had
been raped she noticed that ‘she was bleeding and had semen on her private
parts’.41 His statement records her having said that ‘even though she screamed
[he] continued to have sex with her’ and that ‘she was bleeding through her
vagina’. In his evidence he said that she was crying as she related these events.

[42] What the complainant told Mr Nkosi, when compared to the evidence
that she gave to the court, was not an altogether full and accurate account of
what had occurred. She seems not to have told him that she sat with the
appellant in the plantation for some time, nor that she had been waiting for the
appellant to return so that he could drive her home. There was no suggestion
in her evidence that threats had been made to kill her. Nor did she say in her
evidence that she was screaming. That might be obliquely suggested by her
remark in cross-examination that the appellant had covered her mouth, but had

40 ‘Sy het verder gesê dat hulle het gesê hulle gaan haar doodmaak as sy kan praat wat het gebeur in die bos.’
41 ‘Sy het my meegedeel dat na die persoon haar klaar verkrag het sy het opgemerk dat sy bloei en semen op
haar privaatdele’.

she indeed been screaming I would expect that to have emerged directly even
before she was cross-examined. That there would have been semen around her
vagina seems doubtful given her evidence that the appellant had used a
condom. And the evidence of the doctor who examined the complainant later
that day makes it plain that she was not bleeding.

[43] Not surprisingly Mr Nkosi was concerned at the account he had been
given and he very properly drove directly to the police station where a report
was made to Sergeant Ndlangamandla that the complainant had been raped.
After questioning the complainant Sergeant Ndlangamandla went to the
appellant’s place of work in the company of the complainant. Upon seeing
them the appellant immediately came forward and acknowledged that he had
had sexual intercourse with the complainant. He said that what he had done
was not rape because he had used a condom and the complainant had
consented.42 According to Sergeant Ndlangamandla it was only upon being
informed that the complainant was a minor that the appellant ‘understood that
it was wrong’.43

[44] The complainant was then taken to a district surgeon who examined her.
He said that the examination was painful but that he found no lacerations or
bruising or indeed any injuries. She had not bathed before she was examined
and the examination revealed no external signs of bleeding. He said that her
underpants were soiled, and that he sent a sample for analysis, but there was
no suggestion that the soiling was blood. He also observed a white vaginal
discharge but was unable to say what it was. He took a vaginal smear and a

42 ‘…hy het by my beweer dat dit is nie mos verkragting as hy ŉ kondom gebruik het nie. En dat as sy
toegegee het dit is nie verkragting nie, dit is hoekom hy het gepraat.’
43 ‘En dat totdat ek vir hom sê die kind is minderjarig, hy verstaan dit is verkeerd gewees’.

swab, which were sent for analysis, but he did not know what the result was.
(The prosecutor was not in possession of the results of the analyses and they
were never presented to the court.) There was no suggestion in the evidence of
the district surgeon, or in his contemporary notes of his examination, that the
complainant was emotional or in a state of distress. In the space on the
standard form reserved for observations concerning the ‘state of the person as
regards physical powers, general state of health and mental state’ he made a
mark indicating that there were no observations to record.

[45] In his explanation to his plea of not guilty the appellant acknowledged
that he had given the complainant a lift but denied that he had raped her. In his
evidence he changed his mind. He said that he had indeed given a lift to a
woman but that she was not the complainant. He had seen the complainant
alongside the road but had not even spoken to her. I think it is clear that when
it became apparent to the appellant in the course of the proceedings that the
complainant declined to identify him the appellant latched upon it and altered
his evidence so as to distance himself altogether from the scene. The
magistrate correctly rejected the appellant’s evidence and I need say no more
about it.

[46] There is no doubt that the appellant was indeed the person in the truck
who gave the complainant a lift. Leaving aside his admission to that effect in
the explanation to his plea44 it was not disputed that he acknowledged that he
was that person (in circumstances that made the statement admissible)

44 It was held in S v Jama 1998 (2) SACR 237 (N) at 239e-f that unless admissions made in a plea-explanation
are formally recorded as admissions they may not be used against the accused. It is not necessary in this case
to decide whether that is correct (cf Hiemstra: Suid Afrikaanse Strafproses 6ed by Johann Kriegler and Albert
Kruger p 591).

immediately before he was arrested. There is also no doubt that he had sexual
intercourse with the complainant.

[47] Once having rejected the evidence of the appellant the magistrate
appears to have considered that to be the end of the matter and did not
pertinently direct his mind to whether all the elements of the offence had been
established. Rejecting the exculpatory evidence of an accused does not end the
enquiry in a criminal case. Before convicting a court must always be satisfied
not merely that the exculpatory evidence of the accused is not true but also
that every element of the offence has been established by evidence that is
truthful and reliable beyond reasonable doubt and that applies as much to the
crime of rape. In the case of rape those elements include both absence of
consent and knowledge by the accused of the absence of consent (or at least
knowledge of that possibility45). As Howie P said in S v York 46 in relation to
the absence of consent:
‘It is always, of course, for the prosecution to prove the absence of consent. This entails
that even if the defence, as here, is that no intercourse took place, the court must, in the
adjudicative process, be alive to the possibility that there might have been consent
nonetheless.’
That applies as much to the presence of mens rea and this court said as much
in S v S.47 In that case the accused denied that sexual intercourse had occurred,
in circumstances in which an admission to that effect would have exposed him
to conviction under the Immorality Act. After finding that sexual intercourse
had indeed occurred the court said the following (my translation):
‘However, this finding is not by itself sufficient to bring home a conviction of rape.
Although the appellant had sexual intercourse with the complainant without her consent

45 Jonathan Burchell Principles of Criminal Law 3ed 712-3; CR Snyman Strafreg 5ed 455; R v K 1958 (3) SA
420 (A); R v Z 1960 (1) SA 742 (A).
46 2002 (1) SACR 111 (SCA) para 19.
47 1971 (2) SA 591 (A) 597B-F.

and against her will he is not guilty of rape if he bona fide believed that she consented… In
the present case the appellant does not allege that he believed that the complainant
consented to intercourse and he could not allege that, given his denial that he had
intercourse with her. That does not relieve the state however of the obligation to prove
mens rea, although the appellant’s false denial that intercourse occurred makes the state’s
task in that regard considerably easier.’

[48] Where an accused person advances a false defence, as the appellant did
in this case, a court might ordinarily infer that the reason for doing so is that
he or she has no other defence. But on the ordinary logic of inferential
reasoning48 that inference could not properly be drawn if another reason
presents itself. The most that could then be said is that he or she might have
advanced a false defence for either of those reasons. Needless to say an
accused person in that position takes a considerable risk. For if there is
unchallenged evidence of all the elements of the offence a court would be
perfectly justified in accepting the evidence.  It is if there is no evidence on the
issue that the onus that rests on the state will accrue to the benefit of the
accused for the gap in the evidence could not be filled by an inference drawn
against the accused. That is not a matter of law but only a consequence of
ordinary inferential reasoning.

[49] In the present case the evidence of Sergeant Ndlangamandla indeed
discloses a reason why the appellant might have advanced a false defence that
is not consistent only with his guilt.  For it was made clear to him by Sergeant
Ndlangamandla that the explanation that he first gave – which was that the
complainant had consented – would not assist him to avoid conviction but
would assure a conviction at least of contravening s 14(1)(a) of the Sexual

48 See R v Blom 1939 AD 188 AT 202-3.

Offences Act 23 of 1957.49 In the circumstances I do not think that the fact
alone that the appellant advanced a false defence takes the remaining elements
of the crime out of the equation.

[50] With regard to those elements it is unfortunate that the evidence was
presented only in blunt outline without much in the way of detail. The only
direct evidence on the question of consent was the complainant’s answer to
the question ‘was it with your consent’ to which the complainant replied ‘I
never gave consent’50 but I see no reason not to accept that evidence in the
absence of any challenge. There is no evidence, however, that the complainant
expressed that to the appellant verbally, which raises the question whether the
appellant was aware that the complainant was not a consenting party, bearing
in mind particularly that his explanation to Sergeant Ndlangamandla was that
the complainant had consented. But there are two further items of evidence
that are relevant in that regard.  The first is the complainant’s evidence that the
appellant ‘caught me’ and then proceeded to have sexual intercourse. The
second is her evidence that the appellant ‘covered my mouth’. In the absence
of any challenge to that evidence, or a contrary explanation, I think it can be
inferred from the fact that the appellant found it necessary to place some form
of restraint upon the complainant (whatever the precise form of that restraint
might have been) both before and during intercourse, that he must have known
that she was not consenting, or at least have foreseen that possibility. In those
circumstances the appellant was properly convicted and I turn to the matter of
sentence.

49 ‘Any male person who has…unlawful carnal intercourse with a girl under the age of 16 years…shall be
guilty of an offence.’
50 ‘Was dit met u toestemming? – Ek het nooit toestemming gegee nie.’

[51] Malgas made it clear that the Act signaled that it was not to be
‘business as usual’ when sentencing for the commission of the specified
crimes. That it has indeed not been ‘business as usual’ is reflected in the
dramatic change in the profile of the prison population since the Act took
effect. Published figures indicate that the number of prisoners serving
sentences of imprisonment between ten and fifteen years increased almost
three times from 1998 to 2008.51 Those serving sentences of life imprisonment
increased over nine times.52 As for the crime of rape Parliament was told at the
time the Act was introduced that for rape ‘generally a sentence of three or four
years would be imposed, or six to ten years in very serious cases’.53 That is
consistent with my own experience of cases that came before the high courts
on appeal at that time. Naturally I am not aware of all the cases in which
sentences have been passed but my firm impression from cases that come
before this court is that if there are still sentences falling within that range it
would be most unusual. I think it is fair to say that sentences from ten to
twenty years are now common and life imprisonment is by no means rare.

[52] We were referred to sentences that have been imposed or confirmed in
various cases that have come before this court. While I have read those
decisions I do not think any purpose would be served by examining them in
this judgment. It is sufficient to say that I do not think any relevant principles
of law emerges from those cases that must guide us in our decision.

51 Chris Giffard and Lukas Muntingh The Effect of Sentencing on the Size of the South African Prison
Population (Open Society Foundation for South Africa) for 1998 figures and website of the Department of
Correctional Services for 2008 figures.
52 Sources above.
53 Reference above, column 6089.

[53] In a case of this kind the objective features of the crime come to the fore
in determining a proper sentence. The fact alone that the complainant was
under 16 is considered by the legislature to warrant what might otherwise have
been a sentence of 10 years’ imprisonment being increased to the most severe
punishment that our law knows. The legislature considered that to be
warranted also in each of the other circumstances that I referred to earlier.

[54] That each of those circumstances is indeed an aggravating factor is
beyond question. But if the presence of any one of those circumstances is
indeed so aggravating as to have that profound effect then on the approach in
Malgas their absence is also capable of lessening the culpability of the
offender and that was accepted by all counsel who appeared before us. I
should not be understood to mean that the absence of any one or more of the
various aggravating features specified in the Act necessarily justifies a
departure from the prescribed sentence for that would suggest that the
maximum sentence is reserved for only extreme cases. That was not so prior
to the Act and it is not the case now. There comes a stage at which the
maximum sentence is proportionate to an offence and the fact that the same
sentence will be attracted by an even greater horror means only that the law
can offer nothing more. Whether, and if so to what extent, the absence of other
aggravating circumstances might diminish the offender’s culpability will
naturally depend upon the particular circumstances. That their absence might
have that effect is merely affirmation of the recurrent theme in Malgas that of
the factors traditionally taken into account in sentencing ‘none is excluded at
the outset from consideration in the sentencing process.’54

54 Para 25 at F.

[55] I have given a full account earlier in this judgment of the material facts
that emerge from the record and will only highlight some of them in weighing
whether the maximum sentence will indeed be proportionate in this case. In
this case there was no extraneous violence and no physical injury was caused
other than physical injury inherent in the offence. There was also no threat of
extraneous violence of any kind. The appellant at least minimized the risk of
pregnancy and the transmission of disease by using a condom. The
complainant’s evidence that she was raped twice is curious bearing in mind
that the appellant was charged with only one count. Once more the evidence
on that issue is scant and in the absence of evidence to the contrary I think we
are bound to accept that if two acts indeed occurred they might have been so
closely linked as to amount in substance to the continuation of a single event
and ought not to be given undue weight. Indeed, all who are concerned in this
case placed no weight on that aspect of the evidence.

[56] In this case there is very little upon which to measure the emotional
impact of the offence upon the complainant. It would not be possible to
encapsulate in this judgment the range of emotional responses that rape might
evoke as it is described in the considerable literature on the topic and I make
no attempt to do so. It is sufficient to say that it is evident from the literature
that emotional distress and damage that accompanies rape might be extensive
even if it is not manifested overtly and even more is that so in the case of
young girls. What also needs to be borne in mind is that the literature shows
that emotional responses vary as is demonstrated by a revealing empirical
study of the impact of violence (including sexual violence) against women in

the metropolitan areas of this country.55 But while a court must inform itself
sufficiently to be alive to the range of possibilities that present themselves in
such cases ultimately it must assess the particular individual that is before it
and not a statistical sample.

[57] It is most unfortunate that no attempt was made before the trial to
establish the complainant’s intellectual capacity and other aspects of her
background in view of the history that she related to the district surgeon for
that might have cast further light on the emotional impact of the crime.  I have
pointed out that the evidence is not sufficient for any meaningful assessment
of the complainant’s intellectual capacity and on the evidence it is possible to
say no more than that there is some indication that it is limited.  What we have
before us in assessing the emotional impact of the crime upon the complainant
is that after the event the complainant felt herself able to await the appellant’s
return and to be in his company once more while he drove her home and
became exasperated when he did not return. No doubt she was in tears when
being questioned by Mr Nkosi but it is difficult to assess the degree to which
that was attributable to being questioned persistently by a stranger and the
degree to which it is to be attributed to the crime. When she was examined by
the district surgeon a little later he observed no signs of distress.  I think it
must be accepted that no woman, and least of all a child, would be left
unscathed by sexual assault, and that in this case the complainant must indeed
have been traumatized, but the evidence does not reveal anything more
specific than that. I might add that if the complainant was indeed prone to
epileptic seizures in one form or another I do not think that can be said to be

55 Sandra Bollen, Lillian Artz, Lisa Vetten and Antoinette Louw: ‘Violence Against Women in Metropolitan
South Africa: a study on impact and service delivery’ Institute for Security Studies (1999) Monograph 41.

an aggravating feature because there is no indication that any such seizure
played any role in this case.

[58] The personal circumstances of the appellant, so far as they are disclosed
in the evidence, have been set out earlier. In cases of serious crime the
personal circumstances of the offender, by themselves, will necessarily recede
into the background. Once it becomes clear that the crime is deserving of a
substantial period of imprisonment the questions whether the accused is
married or single, whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial to what that period should
be, and those seem to me to be the kind of ‘flimsy’ grounds that Malgas said
should be avoided. But they are nonetheless relevant in another respect. A
material consideration is whether the accused can be expected to offend again.
While that can never be confidently predicted his or her circumstances might
assist in making at least some assessment. In this case the appellant had
reached the age of 30 without any serious brushes with the law. His stable
employment and apparently stable family circumstances are not indicative of
an inherently lawless character.

[59] When viewed as a whole the only material feature that the evidence
discloses as having aggravated what is inherently a serious crime was the
complainant’s age. Bearing in mind where the complainant’s age fits in the
range between infancy and 16 I do not think that her age by itself justifies
what would otherwise have been a sentence of 10 years imprisonment being
raised to the maximum sentence permitted by law. A substantial sentence of
15 years’ imprisonment seems to me to be sufficient to bring home to the
appellant the gravity of his offence and to exact sufficient retribution for his

crime. To make him pay for it with the remainder of his life would seem to me
to be grossly disproportionate.

[60] There is one further consideration that must be brought to account. The
appellant was arrested on the day the offence was committed and has been
incarcerated ever since. At the time he was sentenced he had accordingly been
imprisoned for just over two years.56 While good reason might exist for
denying bail to a person who is charged with a serious crime it seems to me
that if he or she is not promptly brought to trial it would be most unjust if the
period of imprisonment while awaiting trial is not then brought to account in
any custodial sentence that is imposed.  In the circumstances I intend ordering
that the sentence – which for purposes of considering parole is a sentence of
fifteen years’ imprisonment commencing on the date that the appellant was
sentenced – is to expire two years earlier than would ordinarily have been the
case.

[61] The appeal against sentence is upheld. The sentence imposed upon the
appellant is set aside and the following sentence is substituted:

‘The accused is sentenced to fifteen years’ imprisonment from which
two years are to be deducted when calculating the date upon which the
sentence is to expire.’

_________________
R.W. NUGENT
JUDGE OF APPEAL

56 The appellant was taken into custody on 17 September 1999 and sentenced on 8 October 2001.

FOR APPELLANT:
B C Bredenkamp SC

H L Alberts

W Trengove SC (Amici Curiae)

C Steinberg

I Goodman

ATTORNEYS:
Adv C van Veenendal

PRETORIA

Bloemfontein Justice Centre

BLOEMFONTEIN

Matsepes (Amici Curia)

BLOEMFONTEIN

FOR RESPONDENT:
A R de Meillon SC

K D Moroka SC (Amici Curiae)

K Pillay

ATTORNEYS:
Director of Public Prosecutions

PRETORIA

Bloemfontein Justice Centre

BLOEMFONTEIN

Webbers (Amici Curiae)

BLOEMFONTEIN