THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 764/12

In the matter between

Reportable

SAMSON MAWELA MUDAU

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:  Mudau v The State (764/12) [2012] ZASCA 56 (9 May
2013)

Coram:
MTHIYANE DP, CACHALIA, MAJIEDT JJA, ERASMUS and
SALDULKER AJJA

Heard:
5 MARCH 2013

Delivered:
9 MAY 2013

Summary:
Criminal law – rape – assessment of evidence in totality –
adequacy of evidence to sustain conviction in circumstances where
medical evidence inconclusive – sentence – prescribed minimum
sentence in terms of Criminal Law Amendment Act 105 of 1997 read with
Part 1 of Schedule 2 – whether substantial and compelling
circumstances exist – life sentence – 13 year old complainant –
important that each case be considered on its own merits.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Limpopo High Court, Thohoyandou (Booi AJ, sitting as court
of first instance):

1. The appeal against conviction is dismissed.
2. The appeal against the sentence of life imprisonment is upheld and the
sentence of the court below is set aside and replaced with the following:
‘The accused is sentenced to 15 years’ imprisonment.’
3. The sentence is antedated to 14 March 2011.

______________________________________________________________

JUDGMENT
______________________________________________________________

MAJIEDT
JA
(MTHIYANE
DP,
CACHALIA
JA,
ERASMUS
and
SALDULKER AJJA concurring):

[1] The appellant, Mr Samson Mawela Mudau, was convicted in the
Limpopo High Court, Thohoyandou, of the rape of a thirteen year old girl and
sentenced to life imprisonment. He appeals against both his conviction and
sentence with leave of the court below.

[2] The facts underlying the conviction are briefly as follows. The appellant
is the child’s uncle. He had been requested by the child’s mother to, in her
absence, assist the child with an application for admission to a high school. At
the time, the child was residing with her grandmother. On the day of the
incident the appellant left a message with the grandmother for the child to go
to his house, which was close by, to assist her to complete forms for
admission to the school.

[3] The child testified that the appellant was alone when she arrived at his
home. He asked her whether she was sexually active. She denied that she
was, and added that her grandmother would confirm this. He then asked her
to show him her panties. She obliged and he forcefully inserted two of his
middle fingers into her vagina. At that point there were voices outside the
house. He instructed her to be seated on the bed while he went to investigate.
She testified that she was afraid to ask for help because she had heard him
say that he had a firearm for which he needed to get a place for safe-keeping.

[4] He returned moments later and instructed her to undress and also to lie
down sideways on the bed. Again, she complied with this instruction. He then
got onto the bed in a sideways position, unzipped his trousers and forcefully
inserted his penis into her vagina. She testified that it was painful, and
estimated that it lasted for about five minutes. When she started crying, the
appellant withdrew and told her to get dressed so that they could go and
make a telephone call to her mother from a nearby public telephone. As they
were leaving his house, the appellant sent the complainant back to close the
security gate, because the appellant feared that his firearm inside the house
would be stolen. They were unable to reach her mother on the telephone and
the appellant gave a five rand coin to the child, which she believed was to buy
her silence about the rape.

[5] The child returned to her grandmother’s house and started crying and,
after being questioned, she related to her grandmother what had happened.
The incident was reported to the police, who arrested the appellant that same
evening. The child was medically examined later. When they returned home
that evening she noticed that there was blood on her panty. She showed this
to her grandmother.

[6] The medical examination by Dr Clement Ngobeni, recorded as usual
on the J88 form, revealed that there were no abrasions, that the child’s vagina
only admitted the tip of one finger and that the hymen had a crescentic shape
which, together with the admission of one fingertip into the vagina, suggested
that some penetration may have occurred. His ultimate conclusion, however,
as appeared from the J88 form, was that there was ‘no obvious evidence
suggestive of sexual assault, but cannot exclude it – specimen results still
pending’.

[7] The ‘specimen results’ alluded to by Dr Ngobeni on the J88 form,  were
the blood samples of the appellant as well as a sexual assault evidence kit
containing various specimens taken from the appellant. These, together with
the child’s panties which was sealed separately in a brown paper bag, were
forensically analysed by Ms Mbedzi, an assistant forensic analyst at the
police’s forensic laboratory in Pretoria. She detected possible traces of semen
on the panties, cut out that particular portion of the panties and forwarded it
for DNA testing to the relevant department in the forensic laboratory. Ms
Maharaj, also employed as an assistant forensic analyst at that laboratory,
performed an analysis of the DNA results of both the semen on the piece of
the panties and the appellant’s blood sample and concluded that there was a
match in the DNA results. The outcome was therefore that the forensic
evidence showed that the appellant’s semen was found on the child’s panties.

[8] In his testimony the appellant denied that he had raped the child. He
testified that they had merely gone through the school application forms.
When he told her that he would prefer not to get involved further with her
admission application because she was ‘busy with boys’ she denied it. They
then attempted to call her mother, but were unable to reach her. He gave her
R5 to call her mother later.

[9] The primary thrust of the appellant’s attack against the conviction
before us concerned the question whether the State had proved beyond
reasonable doubt that there had been penetration to constitute the offence of
rape. In this regard the appellant’s counsel laid heavy emphasis on Dr
Ngobeni’s inconclusive findings. These contentions are devoid of merit. The
trial court’s findings that the child and her grandmother were honest, credible
and trustworthy witnesses are in my view unassailable. But one must of
course be mindful of the fact that the child was a single witness in respect of
the rape incident itself and that she is a child. Section 208 of the Criminal
Procedure Act, 51 of 1977, provides that a single witness’ evidence is
adequate to sustain a conviction, provided that it is satisfactory in all material
respects. It is further trite that the evidence of children must be treated with
circumspection.  It would therefore not have been safe to convict on her
evidence alone.

[10] But there was sufficient corroboration for the child’s testimony: first the
undisputed DNA evidence that the appellant’s semen was found on the
complainant’s panties; and secondly the appellant’s utter inability to explain
this. When asked in evidence in chief for an explanation, the appellant was
unable to do so. Instead he gave a rather peculiar response: ‘You can ask me
all the questions, but this one no I will not be able to answer’.

[11] In my view, the State had discharged the onus of proving that the
appellant had raped the child. When the evidence is assessed in its totality, as
a court is obliged to do,1 the conclusion is compelling that, even absent any
conclusive medical evidence which must be regarded as being neutral, the
child’s evidence, supported by the DNA evidence and by the appellant’s
inability to furnish any explanation whatsoever for the presence of his semen
on the complainant’s panties, constitute adequate proof of the rape. The trial
court therefore correctly convicted the appellant.

1 S v Van Aswegen 2001 (2) SACR 97 (SCA) para 8.

[12] I turn now to the vexed question of sentence which is always an
extremely difficult exercise. Sentencing in cases where a young child has
been raped by a family member is no exception and is bound to be
contentious.

[13] The court below found no substantial and compelling circumstances to
deviate from the prescribed minimum sentence of life imprisonment for the
rape of the child and imposed that sentence on the appellant.2 For the
reasons that follow I am of the view that the court below erred in this regard. I
deem it necessary to provide a detailed exposition of this court’s recent
judgments in such cases. I hasten to add that it is trite that each case must be
decided on its own merits. It is also self-evident that sentence must always be
individualised, for punishment must always fit the crime, the criminal and the
circumstances of the case. It is equally important to remind ourselves that
sentencing should always be considered and passed dispassionately,
objectively and upon a careful consideration of all relevant factors. Public
sentiment cannot be ignored, but it can never be permitted to displace the
careful judgment and fine balancing that is involved at arriving at an
appropriate sentence. Courts must therefore always strive to arrive at a
sentence which is just and fair to both the victim and the perpetrator, has
regard to the nature of the crime and takes account of the interests of society.
Sentencing involves a very high degree of responsibility which should be
carried out with equanimity, as Corbett JA put it in S v Rabie:
‘[a] judicial officer should not approach punishment in a spirit of anger, because,
being human, that will make it difficult for him to achieve that delicate balance
between the crime, the criminal and the interest of society which his task and the
objects of punishment demand of him. Nor should he strive after severity; nor, on the
other hand, surrender himself to misplaced pity. While not flinching from firmness,
where firmness is called for, he should approach his task with a humane and

2 Section 51 (1) of the Criminal Law Amendment Act, 105 of 1997, read with s 51(3) and Part
1 of Schedule 2 to that Act.

compassionate understanding of human frailties and the pressures of society which
contribute to criminality.’3

[14] Our country is plainly facing a crisis of epidemic proportions in respect
of rape, particularly of young children. The rape statistics induce a sense of
shock and disbelief. The concomitant violence in many rape incidents
engenders resentment, anger and outrage. Government has introduced
various programmes to stem the tide, but the sexual abuse of particularly
women and children continue unabated. In S v RO, I referred to this extremely
worrying social malaise, to the latest statistics at that time in respect of the
sexual abuse of children and also to the disturbingly increasing phenomenon
of sexual abuse within a family context.4 If anything, the picture looks even
gloomier now, three years down the line. The public is rightly outraged by this
rampant scourge. There is consequently increasing pressure on our courts to
impose harsher sentences primarily, as far as the public is concerned, to
exact retribution and to deter further criminal conduct. It is trite that retribution
is but one of the objectives of sentencing. It is also trite that in certain cases
retribution will play a more prominent role than the other sentencing
objectives. But one cannot only sentence to satisfy public demand for revenge
– the other sentencing objectives, including rehabilitation can never be
discarded altogether, in order to attain a balanced, effective sentence. The
much quoted Zinn5 dictum remains the leading authority on the topic. Rumpff
JA’s well-known reference to the triad of factors warranting consideration in
sentencing, namely the offender, the crime and the interests of society,
epitomises the very essence of a balanced, effective sentence which meets
all the sentencing objectives. More than 40 years ago, Schreiner JA had the
following to say about the balance which has to be struck:
‘While the deterrent effect of punishment has remained as important as ever, it is, I
think, correct to say that the retributive aspect has tended to yield ground to the

3 S v Rabie 1975 (4) SA 855 (A) at 866A-C.
4 S v RO 2010 (2) SACR 248 (SCA) para 1.
5 S v Zinn 1969 (2) SA 537 (A) at 540G; see also: Director of Public Prosecutions, KwaZulu-
Natal v P 2006 (3) SA 515 (SCA) para 13; S v M (Centre for Child Law as Amicus Curiae)
2008 (3) SA 232 (CC) paras 36, 40 and 116; S v Samuels 2011 (1) SACR 9 (SCA) para 9.

aspects of prevention and correction. That is no doubt a good thing. But the element
of retribution, historically important, is by no means absent from the modern
approach. It is not wrong that the natural indignation of interested persons and of the
community at large should receive some recognition in the sentences that Courts
impose, and it is not irrelevant to bear in mind that, if sentences for serious crimes
are too lenient, the administration of justice may fall into disrepute and injured
persons may incline to take the law into their own hands.’6

[15] Crime has undeniably escalated alarmingly since this dictum, but while
retribution remains a sentencing objective, this does not mean that
disproportionate sentences may be imposed on offenders. As Prof S S
Terblanche has correctly pointed out:
‘. . . true retribution is effected only by the imposition of an appropriate sentence, by a
sentence which is in proportion to what is deserved by the offender.’7

[16] The conundrum which minimum sentencing legislation presents (and,
one might add, coupled to the present rampant scourge of rape, particularly of
young girls) is vividly illustrated by the stark dichotomy of views expressed in
the majority and minority judgments of this court in S v Nkomo.8 It is not
necessary to regurgitate the facts. Suffice to state that the case has elicited
widespread comment and criticism from both lawyers and non-lawyers. In an
insightful analysis, the authors of the Commentary on the Criminal Procedure
Act conclude, correctly in my view, that the vast difference in the two
approaches and ultimate sentences in Nkomo can be explained with
reference to ‘the problems created by minimum sentence legislation, ie,
legislative interference in the discretion of courts to determine an appropriate
sentence.’9

6 R v Karg 1961 (1) SA 231 (A) at 236A-B. Cf S v Mafu 1992 (2) SACR 494 (A) at 497b-d.
7 S S Terblanche, A Guide to Sentencing in South Africa, 2ed, 2007 para 3.3 at p 146.
8 S v Nkomo 2007 (2) SACR 198 (SCA).
9 Du Toit et al, Commentary on the Criminal Procedure Act 2ed (1997) at 28-18D.

[17] It is necessary to reiterate a few self-evident realities. First, rape is
undeniably a degrading, humiliating and brutal invasion of a person’s most
intimate, private space.10The very act itself, even absent any accompanying
violent assault inflicted by the perpetrator, is a violent and traumatic
infringement of a person’s fundamental right to be free from all forms of
violence and not to be treated in a cruel, inhumane or degrading way.11 In S v
Vilakazi,12 Nugent JA referred to the study done by Rachel Jewkes and
Naeema Abrahams on the epidemiology of rape13 which concluded on the
available evidence 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’.

[18] The second self-evident truth (albeit somewhat contentious) is that
there are categories of severity of rape. This observation does not in any way
whatsoever detract from the important remarks in the preceding paragraph.
This court held in S v Abrahams that ‘some rapes are worse than others, and
the life sentence ordained by the Legislature should be reserved for cases
devoid of substantial factors compelling the conclusion that such a sentence
is inappropriate and unjust’.14 The advent of minimum sentence legislation
has not changed the centrality of proportionality in sentencing. In Vilakazi
Nugent JA cautioned against the danger of heaping ‘excessive punishment on
the relatively few who are convicted in retribution for the crimes of those who
escape or in the despairing hope of that it will arrest the scourge’.15 He also
pointed to the vast disparity between the ordinary minimum sentence for rape
(10 years imprisonment) and the one statutorily prescribed for rape of a girl
under the age of 16 years (life imprisonment) and the startling incongruities

10 The oft quoted dictum of this court in S v Chapman 1997 (3) SA 341 (SCA) at 344J-345A is
apposite.
11 Section 12 (1)(c) and (e) of the Constitution.
12 S v Vilakazi 2012 (6) SA 353 (SCA); 2009 (1) SACR 552 (SCA) para 2.
13 Rachel Jewkes and Naeema Abrahams ‘The Epidemiology of Rape and Sexual Coercion in
South Africa: An Overview, Social Science and Medicine Journal 55 (2002) 1231–1244.
14 S v Abrahams 2002 (1) SACR 116 (SCA) para 29.
15 S v Vilakazi, supra, para 3.

which may result.16 The judgment also sets out the dramatic effect that the
minimum sentencing legislation has had in sentencing, most importantly that
statistics show that inmates serving sentences of life imprisonment has
increased more than ninefold from 1998 to 2008.17 And he reiterated that
even in the context of minimum sentencing legislation the importance of
assessing each case on its own peculiar facts and circumstances and the
need for proportionality must never be overlooked. Nugent JA expressed it as
follows:
‘It is clear from the terms in which the (determinative) 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’18.

[19] Life imprisonment is the most severe sentence which a court can
impose. It endures for the length of the natural life of the offender,19 although
release is nonetheless provided for in the Correctional Services Act 111 of
1998. Whether it is an appropriate sentence, particularly in respect of its
proportionality to the particular circumstances of a case, requires careful
consideration. A minimum sentence prescribed by law which, in the
circumstances of a particular case, would be unjustly disproportionate to the
offence, the offender and the interests of society, would justify the imposition
of a lesser sentence than the one prescribed by law.20 As I will presently
show, the instant case falls into this category. This is evident from the
approach adopted by this court to sentencing in cases of this kind.

16 Para 13.
17 Para 51.
18 Para 15.
19 S v Mdau 1991 (1) SA 169 (A) at 176G; S v Bull 2001 (2) SACR 681 (SCA) para 21.
20 S v Malgas 2001 (2) SA 1222 (SCA), 2001 (1) SACR 469 (SCA) [2001] 3 All SA 220 (SCA)
para 25. S v Dodo 2001 (1) SACR 594 (CC), 2001 (3) SA 382 (CC), 2001 (5) BCLR 423 (CC),
para 40.

[20] In S v Abrahams21 a sentence of 7 years’ imprisonment imposed on a
father for raping his 14 year old daughter was increased on appeal to a
sentence of 12 years. Cameron JA, writing for a unanimous court,
emphasized the reprehensibility of rape committed within a family context. As
stated above, the learned Judge also pointed out that ‘some rapes are worse
than others’ (see para 17 above) and, with reference to the dictum of
Ackerman J in S v Dodo, supra at para 38, emphasized the need for
proportionality.

[21] In Bailey v S,22 an appeal against a sentence of life imprisonment
imposed on a father for the rape of his 12 year old daughter was dismissed. In
distinguishing that case from others such as, inter alia Abrahams and Nkomo,
referred to above, Bosielo JA (Brand, Heher, Malan and Pillay JJA concurring)
laid heavy emphasis on the drastic effect which the rape has had on the
victim, as evidenced by the victim impact report, which had been handed in by
consent. That report enumerated the following severe sequelae of the rape on
the complainant: (a) anxiety, fear and sleeping disorder; (b) misplaced
feelings of guilt and shame; (c) mood swings; (d) a loss of trust in mankind
and a great sense of anger and hostility towards her father. She also had to
leave school prematurely when she discovered that she was pregnant and
suffered two miscarriages. Bosielo JA emphasized the need to decide on the
imposition of an appropriate sentence based on the particular facts of each
case. The primary difficulty in the case before us is that no victim impact
report was placed before the trial court, an aspect to which I shall revert
shortly

[22] Ndou v S23 concerned the rape of a 16 year old girl by her stepfather.
The sentence of life imprisonment was set aside by this court, which
substituted in its stead a sentence of 15 years’ imprisonment. In its judgment

21 S v Abrahams, supra.
22 Bailey v S (454/11) [2012] ZASCA 154 (1 October 2012).
23 Ndou v S (93/12) [2012] ZASCA 148 (28 September 2012).

this court (per Shongwe JA) referred to a misdirection on the part of the trial
court which. . .’[created the impression] that the minimum sentence of life
imprisonment had to be imposed regardless of the circumstances’.24 The
learned Judge also made mention of the fact that no evidence was led on the
effect the rape had on the victim, but accepted that it must have been very
traumatic.25 The court found that a sentence of life imprisonment would be
disproportionate and imposed 15 years’ imprisonment.

[23] Lastly there is the judgment of Kwanape v S.26 I must immediately point
out that the rape in that matter had not been perpetrated in a family setting.
This court (per Petse JA, Nugent JA and Erasmus AJA) dismissed an appeal
against a sentence of life imprisonment imposed on a 24 year old first
offender who had raped a 12 year old girl. One of the numerous aggravating
factors in that case was the fact that the appellant had abducted the
complainant while she was in the company of her friends and effectively held
her hostage for an entire night. In this matter too, a victim impact report was
handed in by consent, from which it appears that the rape has had a
devastating impact on the complainant. She was forced to leave school,
compelling her mother to give up her employment in order to render emotional
support to the complainant. The latter had become a recluse so as to avoid
being ridiculed by her peers.

[24] The appellant in the present matter testified in mitigation of sentence.
He was 47 years old at the time of sentencing, a taxi driver by occupation,
earning R1 000 per week. His wife was also employed, earning R1 200 per
month. They have four children, all of them still dependent on their parents for
financial support. The appellant has one previous conviction, dated 1998, for
assault with intent to do grievous bodily harm, for which he had been
sentenced to a R500 fine or 3 months imprisonment, which may be

24 Para 11.
25 Para 12.
26 Kwanape v S (422/12) [2012] ZASCA 168 (26 November 2012).

disregarded for present purposes. It can therefore be accepted that he has no
propensity to commit crime, which increases his chances for rehabilitation.

[25] It must also be accepted that this was not the most severe form of rape
and that the appellant desisted when he realized that the child was crying.
There is also no evidence that the child suffered any ongoing trauma, over
and above the trauma that she would inevitably have experienced as a result
of what had happened. In this regard I must mention that it is troubling that the
State seems to have made no attempt to place such evidence before the trial
court, eg by way of a victim impact report, despite the fact that this court has
emphasized its importance.27

[26] In respect of the severity of the rape, referred to in the preceding
paragraph, it is plain from the medical report that the doctor did not find any
serious physical injuries (see para 6 above). And there was no further
violence in addition to the rape. Similarly in S v Nkawu28 the complainant had
not suffered any serious injuries as a consequence of being raped. In
considering whether substantial and compelling circumstances exist justifying
departure from the prescribed sentence, Plasket J was called upon to
consider the provisions contained in s 51 (3) (aA)(ii) of the Criminal Law
Amendment Act, 105 of 1997, as far as the absence of serious physical
injuries to the complainant was concerned. That subsection provides that
when a court sentences for rape ‘an apparent lack of physical injury to the
complainant’ shall not be regarded as a substantial and compelling
circumstance. Plasket J, expressed the view, correctly as I see the matter,
that a literal interpretation of that provision would render it unconstitutional,
since it would require judges to ignore factors relevant to sentence in crimes
of rape which could lead to the imposition of unjust sentences. I agree with
the learned Judge that ‘to the extent that the provision restricts the discretion
to deviate from a prescribed sentence in order to ensure a proportional and

27 S v Vilakazi, supra, paras 56 and 57.
28 S v Nkawu 2009 (2) SACR 407 (ECG).

just sentence it would infringe the fair trial right of accused persons against
whom the provision was applied’29. He correctly in my view concluded that the
proper interpretation of the provision does not preclude a court sentencing for
rape to take into consideration the fact that a rape victim has not suffered
serious or permanent physical injuries, along with other relevant factors, to
arrive at a just and proportionate sentence. To this one must add that it is
settled law that such factors need to be considered cumulatively, and not
individually.

[27]  As against these mitigating factors it must also be considered that the
appellant abused his position of trust. Instead of helping the child with her
application forms for school he used the opportunity to violate her and showed
no remorse by denying in court that the incident had taken place. Instead of
taking responsibility for what he had done, he sought to make the child a liar.
In effect, he victimised her again.

[28] Having weighed the mitigating factors against the aggravating ones,
the imposition of the statutorily prescribed minimum sentence by the high
court was in my view grossly disproportionate to the offence. This court is
therefore obliged to set it aside and impose a fresh sentence. The offence is,
nonetheless, deserving of severe punishment so as to convey the gravity of
the offence and society’s justified abhorrence thereof. I am of the view that a
sentence of 15 years’ imprisonment would meet the objectives of sentencing
and would fit the crime, the criminal and the needs of society. The appellant
has been serving his sentence since the date of sentencing, namely 14 March
2011 and the sentence should consequently be antedated accordingly.

[29] In the result the following order is made:

29 Para 15.

1. The appeal against conviction is dismissed.
2. The appeal against the sentence of life imprisonment is upheld and the
sentence of the court below is set aside and replaced with the
following:
‘The accused is sentenced to 15 years’ imprisonment.’
3. The sentence is antedated to 14 March 2011.

________________________

S A MAJIEDT

JUDGE OF APPEAL

APPEARANCES

For Appellant:
L M Manzini

Instructed by:

Polokwane Justice Centre

Bloemfontein Justice Centre

For Respondent:
R J Makhera

Instructed by:

Director of Public Prosecutions, Limpopo

Director of Public Prosecutions, Bloemfontein