Nongwana v S (Appeal) (A170/2024) [2025] ZAWCHC 347 (8 August 2025)

Case Note

Thulani Nongwana v The State
Case No A170/2024, High Court of South Africa (Western Cape Division, Cape Town)
Neutral citation: Thulani Nongwana v The State (A170/2024) [2025] ZAWCHC ___ (8 August 2025)

Reportability

This judgment is reportable because it confirms the strict approach South African courts continue to adopt toward minimum‐sentence legislation in cases of repeated rape. The court’s refusal to depart from the life-imprisonment benchmark, despite the offender’s youth and first-offender status, provides authoritative guidance on the interpretation of “substantial and compelling circumstances” in section 51(3) of the Criminal Law Amendment Act 105 of 1997. In addition, the decision canvasses the distinction between mere regret and genuine remorse, an issue of recurring importance in sentencing appeals.

Cases Cited

S v Vilakazi 2009 (1) South African Criminal Law Reports 552 (Supreme Court of Appeal)

Legislation Cited

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Criminal Law Amendment Act 105 of 1997
Criminal Procedure Act 51 of 1977, section 309(1)(a)

Rules of Court Cited

No specific rules of court were cited in the judgment.

HEADNOTE

Summary

This appeal concerned only the sentence imposed on the appellant for two counts of rape committed on 3 September 2018. The Worcester Regional Magistrates’ Court had invoked section 51(1) of the minimum-sentence legislation and imposed life imprisonment.

The appellant, a 26-year-old first offender, invoked his automatic right of appeal under section 309(1)(a) of the Criminal Procedure Act. He contended that his youth, employment, family responsibilities, consumption of alcohol, and late admission of guilt cumulatively amounted to substantial and compelling circumstances justifying a lesser sentence.

The High Court (Mphego AJ, Cloete J concurring) dismissed the appeal. It held that the brutality of the assaults, the appellant’s predatory conduct, absence of genuine remorse, and the psychological and physical harm to the victim far outweighed his personal circumstances. No substantial and compelling circumstances were found and the life sentence was confirmed.

Key Issues

Whether the cumulative personal circumstances of a young, first-time offender can qualify as “substantial and compelling circumstances” under section 51(3) of Act 105 of 1997 so as to justify a deviation from the prescribed life sentence for multiple rapes of the same victim.

Held

The court held that the appellant’s factors, viewed individually or collectively, did not amount to substantial and compelling circumstances. Life imprisonment therefore remained the appropriate sentence for the two counts of rape, and the appeal was dismissed.

THE FACTS

The appellant and the complainant met for the first time at Danny’s Tavern in Worcester on the night of 2 September 2018. In the early hours of the next morning the complainant left with a friend and waited outside his home. The appellant, having followed them, confronted her, forcibly removed her, and assaulted her in full view of bystanders who chose not to intervene.

He dragged the complainant to his own residence against her will. There he ordered her to undress, beat her when she resisted, and raped her vaginally. A few hours later, he repeated the sexual assault. Throughout the ordeal he used fists, open hands and head-butts, inflicting visible bruises and swelling.

The complainant reported the offences the same day. Medical evidence and photographs corroborated her injuries. The appellant was ultimately convicted of kidnapping, assault and two counts of rape. Only the life sentences for rape were the subject of this appeal.

THE ISSUES

The central question on appeal was whether the trial court misdirected itself in finding no substantial and compelling circumstances and thus in imposing the mandatory sentence of life imprisonment. Ancillary to that enquiry were: the weight to be given to the appellant’s personal circumstances; the relevance of his alleged intoxication; and the sufficiency of his professed remorse.

ANALYSIS

First, the court reaffirmed that section 51(1) of the Criminal Law Amendment Act creates a stringent sentencing regime for offences such as multiple rapes. The benchmark is life imprisonment, and a court may depart from it only where circumstances are truly exceptional.

Secondly, the judges scrutinised the appellant’s circumstances. Youthfulness at twenty-six, first-offender status, employment and family responsibilities were all acknowledged. Yet the court stressed, with reference to S v Vilakazi, that in cases of rape the gravity of the offence and the interests of society generally eclipse the offender’s personal profile unless the latter presents truly compelling features.

Thirdly, the court considered the aggravating features: the calculated manner in which the appellant stalked, kidnapped and repeatedly raped the complainant; the violence used; the vulnerability of the victim; and the appellant’s conduct after the crime, including evading arrest and offering no sincere apology. The appellant’s late admission of guilt to a probation officer, unaccompanied by a formal plea or demonstration of contrition, was characterised as regret rather than genuine remorse.

The court concluded that, even cumulatively, the mitigating factors lacked weight sufficient to displace the legislated norm of life imprisonment. No material misdirection by the trial court was shown, and appellate interference was unwarranted.

REMEDY

The appeal was dismissed and the sentences of life imprisonment on each of the two rape counts were confirmed.

LEGAL PRINCIPLES

Mandatory minimum sentences for serious offences such as multiple rapes may be departed from only when “substantial and compelling circumstances” exist. Youth, first-offender status and family responsibilities, while relevant, will not ordinarily suffice where the offence is characterised by violence, premeditation and absence of remorse. Genuine remorse must be distinguished from mere regret; it requires a spontaneous and convincing acknowledgment of wrongdoing. The prevalence and gravity of rape demand that the courts give precedence to the interests of victims and society when balancing mitigating and aggravating factors.