S v Maqam

Thobilizwi Maqam was convicted of six offences involving the rape of three young women. The first victim, Siphokazi, was raped after being dragged from her home while living with her 83-year-old great-grandmother. The second victim, Siyolise, was raped in her room when her roommate was away; the rape involved infliction of grievous bodily harm. The third victim, Aphelele, was 15 years old at the time; she was attacked while walking alone near mealie fields. In all cases, the accused was armed with a knife and/or sword and wore a balaclava to conceal his identity. The crimes occurred between 2013 and 2014 but took approximately 10 years to solve as victims could not identify their attacker. DNA evidence from vaginal swabs linked the accused to all three rapes. The accused denied all charges and showed no remorse, claiming consensual intercourse in one case and denying involvement in the others despite DNA evidence.

• Whether substantial and compelling circumstances existed to justify departure from the prescribed minimum sentences under section 51(1) and 51(2) of the Criminal Law Amendment Act 105 of 1997
• What constitutes an appropriate sentence for multiple rape offences involving aggravating circumstances
• The application of mandatory minimum sentencing provisions in cases of rape

Count 1 (housebreaking with intent at Siphokazi's home): 3 years imprisonment. Count 2 (housebreaking with intent at Siyolise's residence): 3 years imprisonment. Count 3 (kidnapping of Siphokazi): 5 years imprisonment. Sentences in counts 1 and 2 ordered to run concurrently with count 3. Count 4 (rape of Siphokazi): life imprisonment. Count 5 (rape of Siyolise): life imprisonment. Count 6 (rape of Aphelele): 15 years imprisonment. The accused's particulars were ordered entered in the National Register for Sex Offenders in terms of section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The accused was declared unsuitable to work with children and his particulars were ordered entered in Part B of the National Child Protection Register in terms of section 120(4) of the Children's Act 38 of 2005 and section 41 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

In sentencing for rape offences where section 51 of the Criminal Law Amendment Act 105 of 1997 applies, a court must impose the prescribed minimum sentences (life imprisonment under section 51(1); 15 years under section 51(2)) unless substantial and compelling circumstances exist justifying departure. The accused's personal circumstances such as having dependent children, limited education and employment prospects do not constitute substantial and compelling circumstances where: (1) the offences were carefully planned and executed; (2) victims were deliberately targeted in vulnerable positions; (3) weapons were used; (4) the offender took steps to conceal identity; (5) the offender shows no genuine remorse; and (6) the offender persists in denying guilt despite overwhelming evidence. The court must assess all circumstances of both the offence and the offender to determine whether the prescribed sentence is proportionate, applying the test in S v Malgas and S v Vilakazi.

Jolwana J made extensive observations about the inadequate support provided to victims of sexual violence by government departments, particularly the Department of Social Development. The court noted that victims received minimal counselling that was discontinued when they could not afford transport, with no follow-up or home visits. This, combined with difficulties in obtaining witness fees, constituted avoidable secondary traumatization and insensitivity to victims of gender-based violence. The court commended the investigating officer (Warrant Officer Dlomo) and social worker (Mrs Sukani) who showed compassion and made commitments to assist the victims. The court directed that the judgment be sent to relevant officials at the Department of Social Development and court management for attention and corrective action. The court also observed that there may be other victims who did not report their rapes because they could not identify their attacker due to the balaclava worn by the accused.

This case reinforces the strict application of mandatory minimum sentencing provisions for rape and other serious sexual offences in South African law. It demonstrates that personal circumstances such as poverty, limited education, and dependent children will not ordinarily constitute substantial and compelling circumstances to justify departure from prescribed minimum sentences, particularly where the offences were carefully planned and the offender shows no remorse. The judgment also highlights systemic failures in supporting victims of gender-based violence through counselling services and witness support mechanisms, addressing secondary victimization by state institutions. The case contributes to jurisprudence on the constitutional imperative to protect women's dignity, safety and bodily integrity as articulated in S v Chapman.