THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 546/2013
Not Reportable
In the matter between:

WILLIAM MUNYAI
Appellant

and

THE STATE

Respondent

Neutral citation:  Munyai v The State (546/2013) [2014] ZASCA 36 (28 March
2014)

Coram:
Navsa, Theron and Petse JJA

Heard:

5 March 2014

Delivered
28 March 2014

Summary:
Sentence - Rape – Minimum sentence in terms of s 51 of the
Criminal Law Amendment Act 105 of 1997 imposed by the
high court – no substantial and compelling circumstances –
appeal against sentence dismissed.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Limpopo High Court, Thohoyandou (Hetisani J sitting
as court of first instance):
The appeal against sentence is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
THERON JA (Navsa and Petse JJA concurring):

[1] The appellant stood trial in the Limpopo High Court (Hetisani J) on one
count of rape read with provisions of Section 51(2) of the Criminal Law
Amendment Act 105 of 1997 and on the alternative count of contravening s
14(1)(a) of the Sexual Offences Act 23 of 1957 (having unlawful carnal
intercourse with a girl below the age of 16 years). The appellant pleaded not
guilty to the main count and guilty to the alternative count. The State did not
accept his plea in respect of the alternative count and pleas of not guilty in
respect of both counts were entered by the court.

[2] The appellant made a number of admissions at the commencement of the
trial. He admitted that he had had sexual intercourse with the complainant on 17
October 2003 but that such sexual intercourse was with the consent of the
complainant.  At the end of the trial the appellant was found guilty on the main
count and sentenced to life imprisonment. He appeals to this court against
sentence only, with the leave of the high court.

[3] The complainant was thirteen years at the time of the incident. She and
her family knew the appellant as they lived in the same neighbourhood. The
appellant had promised to give the complainant R1 which she was required to
pay at school in respect of a funeral fee. He had requested that the complainant
collect the money from his home on her way to school on the morning of the
incident. Instead of giving her the money as promised, he had sexual intercourse
with her without her consent. When the complaint’s mother came looking for
her, the appellant hid her under a bed and threatened to kill her if she responded
to her mother’s calls. It was only later that the complainant was discovered on
the premises.

[4] The complainant testified that she had felt pain during the intercourse and
was bleeding profusely afterwards. The District Surgeon, Dr Hadzhi, who
examined the complainant after the incident noted bruises on her clitoris and
labia minora. The labia majora was normal but blood stained and there were
superficial tears on the vagina. It is recorded in the medico-legal report that the
complainant’s clothes were blood stained. The District Surgeon’s conclusion is
recorded as follows: ‘possible evidence of vaginal penetration as evident by
fresh tears [and] bleeding with irregular hymen’.

[5] No evidence was led by the appellant in mitigation of sentence. The
appellant’s legal representative addressed the court from the bar. The court was
advised that the appellant had been fifty five years old at the time and was a
self-employed carpenter. He was separated from his wife. The court was
advised that he had consumed alcohol the night before the incident and was still
inebriated at the time of the incident. The court was also informed that the
appellant was a ‘man of ill health’. There was no further clarification regarding
his state of health. The appellant admitted his previous convictions, one of
which was an undated conviction for common assault in respect of which he

paid an admission of guilt fine in the amount of three hundred rand and another
in 1997 for assault with intention to do grievous bodily harm in respect of which
he was sentenced to pay a fine of three hundred rand or undergo three months’
imprisonment. The previous convictions were not held against him by the court
below and do not call for consideration by this court.

[6] On appeal, it was submitted by counsel for the appellant that the sentence
imposed was shockingly inappropriate, induced a sense of shock and was
disproportionate to the offence. It was further submitted that the high court had
over-emphasised the interests of the community at the expense of the
appellant’s personal circumstances and had the high court had due regard to
these circumstances it would have concluded that they were sufficiently
compelling and substantial so as to justify a departure from the minimum
sentence prescribed by the Legislature.

[7] It was common cause that in terms of the provisions of s 51 of the
Criminal Law Amendment Act, the high court was obliged to impose the
minimum sentence of life imprisonment unless there were compelling and
substantial circumstances justifying a departure from the prescribed minimum
sentence. In considering an appropriate sentence, courts must be conscious that
the Legislature has ordained life imprisonment as the sentence which should
ordinarily be imposed for the offence in respect of which the appellant has been
convicted and should not be departed from lightly and for flimsy reasons.1

[8] No evidence was led of the impact of the rape on the complainant. This
court, has in the past, deplored the failure to lead such evidence during the
sentencing proceedings.2 Such evidence constitutes important evidence to assist

1 S v Malgas 2001 (1) SACR 469 (SCA) paras 8 and 9.
2 S v Olivier 2010 (2) SACR 178  (SCA) para 11.

the sentencing court in arriving at an appropriate sentence. Ponnan JA in S v
Matyityi,3 explained the value of such evidence.
‘By accommodating the victim during the sentencing process the court will be better
informed before sentencing about the after-effects of the crime. The court will thus have at its
disposal information pertaining to both the accused and victim, and in that way hopefully a
more balanced approach to sentencing can be achieved. Absent evidence from the victim, the
court will only have half of the information necessary to properly exercise its sentencing
discretion. It is thus important that information pertaining not just to the objective gravity of
the offence, but also the impact of the crime on the victim, be placed before the court. That in
turn will contribute to the achievement of the right sense of balance and in the ultimate
analysis will enhance proportionality, rather than harshness. Furthermore, courts generally do
not have the necessary experience to generalise or draw conclusions about the effects and
consequences of a rape for a rape victim.’
Despite the fact that no evidence was led on the effect of the rape on the
complainant, the lack of such evidence should not be construed as an absence of
post traumatic stress.4

[9] There are a number of aggravating factors in this matter. The appellant
deceptively lured the complainant to his home with a promise to assist her.
There he took advantage of her and subjected her to humiliating and degrading
treatment.5 She sustained the injuries recorded in para 4 above. In his attempts
to avoid being discovered, he threatened to kill her. He also did not show
remorse for his actions.

[10] The judge in the court below gave due consideration to the personal
circumstances of the appellant and correctly balanced such circumstances
against the legitimate interests of the community. Child rape is a prevalent

3 S v Matyityi 2011 (1) SACR 40 (SCA) para 17.
4 S v SMM 2013 (2) SACR 292 (SCA) para 17.
5 S v Chapman 1997 (2) SACR 3 (SCA) at 5a-b.

offence in Limpopo.6 The judge recognised the duty of the court to protect
vulnerable persons, particularly young girls, and the need to send a message to
society that offenders such as the appellant will be appropriately punished.

[11] In my view, the cumulative effect of the personal circumstances of the
appellant, as weighed against the aggravating factors, do not constitute
substantial and compelling circumstances justifying a departure from the
prescribed minimum sentence. I am not satisfied that the imposition of the
minimum sentence would be disproportionate to the crime, the appellant and the
needs of society so as to result in an injustice.

[12] In the result, the appeal against sentence is dismissed.

______________
L V THERON
JUDGE OF APPEAL

6 For recent cases see S v MM 2012 (2) SACR 18 (SCA); S v SMM 2013 (2) SACR 292 (SCA), S v M 2013 JDR
2747 (SCA); Thinashaka v S (65/2013) [2013] ZASCA 127 (25 September 2013); Rasirubu v S (651/12) [2013]
ZASCA 140 (30 September 2013).

APPEARANCES
For Appellant:

M J Manhwadu
Instructed by:
Justice Centre, Thohoyandou
Justice Centre, Bloemfontein

For Respondent:

R J Makhera

Instructed by:
The Director of Public Prosecutions,
Thohoyandou
The Director of Public Prosecutions,
Bloemfontein