THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 859/2022
In the matter between:
SIYABONGA MTHANTI APPELLANT
and
THE STATE RESPONDENT
Neutral Citation: Mthanti v The State (Case no 859/2022) [2024] ZASCA 15
(8 February 2024)
Coram: DAMBUZA, HUGHES, and MATOJANE JJA and WINDELL and MALI
AJJA
Heard: 18 August 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website, and release to SAFLII. The date for hand down is deemed to be 8 February
2024 at 11h00.
Summary: Criminal law – sentence – appeal in terms of s 316B of the Criminal
Procedure Act 51 of 1977 (CPA) against sentences imposed – appellant convicted of
a series of offences including assault with intent to do grievous bodily harm, robbery
with aggravating circumstances and rape – whether there was duplication of
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sentences – whether minimum prescribed sentences applicable under s 51(1) of the
Criminal Law Amendment Act 105 of 1997 (CLAA) applicable – whether the appellant
when committing rape had already been convicted of two or more offences of rape –
appellant not yet sentenced in respect of such convictions – involvement of grievous
bodily harm as provided in Part I (c) of Schedule 2 to the CLAA – whether there were
substantial and compelling circumstances to justify the imposition of lesser sentences
– no substantial and compelling circumstances found.
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____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from: KwaZulu-Natal Division of the High Court, Durban (Nkosi and Pillay
JJ and Reddi AJ sitting as court of appeal):
1 Save to the extent set out below the appeal is dismissed.
2 The order of the full court is set aside and replaced with the following:
‘2.1 Counts 1, 2, and 5 are taken together for purposes of sentence. The
accused is sentenced to 15 years’ imprisonment.
2.2 Counts 3 and 4 are taken together for purposes of sentence. The accused
is sentenced to life imprisonment.
2.3 In respect of count 6 the accused is sentenced to 15 years’ imprisonment.
2.4 All the sentences are to run concurrently.
2.5 All the sentences are antedated to 1 April 2015.’
____________________________________________________________________
JUDGMENT
____________________________________________________________________
Mali AJA (Dambuza, Hughes and Matojane JJA and Windell AJA concurring):
[1] The appellant , Mr Siyabonga Mthanti was convicted and sentenced by the
KwaZulu-Natal Division of the High Court , Pietermaritzburg, (the high court) on three
counts of robbery with aggravating circumstances, a co unt of assault with intent to
cause grievous bodily harm and two counts of rape. The sentences were imposed as
follows: (a) 15 years ’ imprisonment for the three counts of robbery with aggravating
circumstances (counts 1, 2 and 5), (b) life imprisonment for the counts of assault with
intent to do grievous bodily harm and the first count of rape (counts 3 and 4), and (c)
life imprisonment on the second count of rape (count 6). His appeal to the full court of
the same division against the sentences imposed in respect of counts 2 to 6 was
dismissed. He now appeals, with the leave of this Court, against the dismissal of his
appeal by the full court.
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[2] The appellant’s convictions and sentences relate to three incidents that
occurred between June 2014 and January 2015 . In all three incidents the appella nt
used the same method of enticing the victim to an isolated spot under false pretences
of employment offer. There he either threatened to or stabbed them with a knife, and
robbed and raped them.
[3] The first incident was preceded by interaction between the appellant and the
first complainant, on a social media site known as OLX, a site used by employment
advertisers and job seekers. There the appellant, pretending to be Siyabonga Ncula ,
advertised a job. On 16 June 2014 the first complainant, following the a ppellant’s
instructions, took a taxi from her home in Newlands, e Thekwini to meet the appellant
in Pietermaritzburg. The appellant led the first complainant to a secluded spot where
he robbed her of two cellular phones at knife point. He then instructed he r to undress
whilst grabbing her, but she managed to wrestle free and run away. The conviction on
count 1 related to this event.
[4] The second incident occurred on 26 August 2014 when the appellant assaulted,
robbed and raped the second complainant. In the same manner as the first incident ,
this incident too followed communication between the appellant (pretending to be a
Mrs Zuma) and the second complainant , on a social media known as Date Club . In
that interaction the appellant offered the second complainant a job as a domestic
worker. On the appellant’s instructions the second complainant arrived at Elandskop
Pietermaritzburg, having boarded a taxi from her home in Port Shepstone . The
appellant met her as arranged and led her to a spot where he stabbed her on the back
with a knife and robbed her of her money and a cellular phone. Having threatened to
stab her again he then ordered her to undress and he raped her.
[5] Thereafter the second complainant put on her clothes and asked him for
[5] Thereafter the second complainant put on her clothes and asked him for
directions to Mrs Zuma’s house. On following the directions given to her by the
appellant the second complainant walked into a forest where, and after having walked
a very long distance she eventually reached an informal settlement where she was
taken to a police station . She used her rescuer ’s cellular phone to call the phone
number that the appellant had given her as Mrs Zuma’s , only to discover that was, in
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fact, the appellant’s phone number. The convictions on counts 2, 3 and 4 related to
this incident.
[6] The complainant in the third incident travelled from Mthwalume, Port Shepstone
to meet the appellant in Pietermaritzburg. On this occasion the appellant had
pretended to be a Mr Zikhali when he offered the third complainant a job as a
childminder. When the appellant came to meet the complainant , he was in the
company of someone referred to as Andile. The three of them walked along a footpath
to a spot where the appellant suddenly grabbed the complainant by the neck from
behind. He then took one of the complainant’s cell ular phones and identity document
and ordered her to give her second cellular phone to Andile. Thereafter the appellant,
while pointing a knife at the complainant’s neck, proceeded to rape her in the presence
of his friend Andile, whilst she pleaded with him not to kill her . At some stage the
appellant invited Andile to also participate in the ra pe but the latter refused . Andile
gave the complainant’s cellular phone back to the appellant and walked away from the
scene. The convictions on counts 5 and 6 related to this incident.
[7] The approach of the high court in sentencing the appellant was rather unusual
when imposing sentence, the court took together all three counts of robbery with
aggravating circumstances from the three different incidents and sentenced the
appellant to a 15 year term of imprisonment. It then combined the counts of assault
with intention to cause grievous bodily harm and rape from the second incident for the
purpose of sentencing and imposed a sentence of life imprisonment. The court then
imposed a further life sentence in respect of the conviction of rape in the third incident.
[8] The general approach to sentencing is to determine an appropriate sentence
for each individual offence of which an accused is convicted. Of particular relevance
in this case is that although the perpetrator in the three incidents was the same, and
in this case is that although the perpetrator in the three incidents was the same, and
the offences were similar, the victims were three different individuals and the incidents
were unrelated. On the correct approach the sentences imposed had to account for
the aggravating and mitigating circumstances attendant in ea ch offence committed.
The imposition of a single sentence in respect of the unrelated crimes (counts 1, 2 and
5) was inappropriate. Nevertheless, it redounded in the appellant’s favour , and there
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is no counter-appeal in respect thereof. In addition, counts 3 and 4 were considered
together for the purpose of sentencing.
[9] In this appeal the appellant contends, first, that in respect of the second incident
there was duplication of convictions and therefore improper punishment. The
argument posits that even though the appellant was found guilty of three separate
offences (rape, robbery with aggravating circumstances and assault with the intent to
do grievous bodily harm), he had a single intent: he used the knife to subdue the
complainant with the intention of carrying out the robbery and rape of the complainant
(counts 1 and 3). Therefore, the conviction of assault with intention to cause grievous
bodily harm (count 2) resulted from an impermissible duplication of charges which led
to duplication of punishments. The second leg on which the appeal stands is that the
first rape did not involve the infliction of grievous bodily harm as provided in item (c) of
Part I in Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (CLAA) read
with s 51(1) of that Act. Therefore, he should not have been sentenced to life
imprisonment in respect thereof. Thirdly, he contends that when he was sentenced for
the second rape in the third incident (count 6) he had not yet been convicted of two or
more incidents of rape as provided in the same law. The second rape therefore did not
attract the sentence of life imprisonment. Lastly, he contends that his personal
circumstances, when considered cumulatively, constitute substantial and compelling
circumstances tha t justify deviation from the minimum sentences prescribed in the
CLAA.
[10] The law pertaining to the duplication of punishment has been established in
many cases. In S v BM,1 this Court remarked that:
‘It has been a rule of practice in our criminal courts since at least 1887 that ‘where the accused
has committed only one offence in substance, it should not be split up and charged against
has committed only one offence in substance, it should not be split up and charged against
him in one and the same trial as several offences”. The test is wh ether, taking a common
sense view of matters in the light of fairness to the accused, a single offence or more than one
has been committed. The purpose of the rule is to prevent a duplication of convictions on what
is essentially a single offence and, cons equently, the duplication of punishment. ’ (Emphasis
added.).
1 S v BM [2013] ZASCA 160; 2014 (2) SACR 23 (SCA) para 3.
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[11] Firstly, it is necessary to highlight that the appeal in this Court is not against the
convictions. Consequently, any contention advanced in order to impugn any of the
convictions is imperm issible. Secondly, t he high court took count 2 (assault to do
grievous bodily harm) and count 3 (rape) together for purposes of sentence . Thirdly,
the high court found that the rape in count 3 involved the infliction of grievous bodily
harm that attracted a life sentence.2 The result was one sentence of life imprisonment
in respect of both counts. Because the two offences were grouped together, this
approach did not result in the duplication of punishment.
[12] With regard to the second ground of appeal – that the injury sustained by the
complaint did not constitute grievous bodily harm, it is apposite to observe, first, that
there is no definition of grievous bodily harm in the CLAA. The courts have held that
while the injury should not be trivial or insignificant, it need not be necessarily life
threatening, dangerous or disabling. The relevant considerations in assessing whether
grievous bodily harm was inflicted include the nature of the injury sustained, the
seriousness of that injury, its position on the body, the object used in inflicting it, the
number of wounds sustained, and the results that flowed from the infliction. 3 In
addition, the meaning of grievous bodily harm must be understood within the context
of its use in the Criminal Law (Sexual Offences and Related matters) Amendment Act
32 of 2007.
[13] Item (c) of Part I of Schedule 2 of the CLAA , which prescribes the minimum
sentence of life imprisonment for rape offences ‘ involving t he infliction of grievous
bodily harm’, must be understood within the context of the rampant levels of sexual
offences in this country . The purpose is to ensure that appropriate punishment is
imposed for violent conduct that is designed to induce submission to sexual
imposed for violent conduct that is designed to induce submission to sexual
intercourse, given that rape, on its own, is a violent, degrading act. The analogy drawn
by the appellant between the infliction of harm in this case and the harm sustained by
the complainant in S v Nkomo,4 (Nkomo) is therefore inappropriate. In Nkomo the court
was concerned with injuries sustained by the complainant whilst trying to escape from
the appellant. In this case , however, it is common cause that the appellant stabbed
2 Item (c) of Part I of Schedule 2 of the CLAA.
3 S v Rabako [2007] ZAFSHC 47; 2010 SACR 310 (O).
4 S v Nkomo [2006] ZASCA 139; [2007] 3 All SA 596 (SCA); 2007 (2) SACR 198 (SCA) para 15.
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the complainant with a knife to subdue her so that he could rape her. The stab wound
sustained by the second complainant was a 0,5 cm wide laceration. It was located at
the level of the T5 (the fifth thoracic vertebra), to the left of the vertebral column.5 The
depth could not be ascertained because the wound was sutured at the clinic before
the doctor who gave evidence in court examined the complainant.
[14] There was no suggestion on appeal that the high court was wrong in its
conclusion that the suturing of the wound meant that it was not superficial.
Consequently the finding that that the rape involved the infliction of grievous bodily
harm cannot be faulted. Thus, the appellant fell to be sentenced as provided in s 51(1)
read with Part 1 of Schedule 2 of the CLAA and the trial court did not misdirect itself
in imposing the minimum sentence of life imprisonment.
[15] With regard to the sentence of life imprisonment imposed for count 6, the high
court found that the offence attracted the minimum prescribed sentence under s 51(1),
Part I (a)(iii) of Schedule 2 of the CLAA because it was a second conviction of rape
committed by the appellant. The court erred in this regard.
[16] In S v Mahomotsa6 Mpati JA set out the correct interpretative approach to Part
I (a)(iii):
‘Here the accused had been arrested on the first count, appeared in court where he was
released in the custody of his grandmother, but within a period of just over two months he
committed a similar offence in almost a similar fashion. What must be remembered, however,
is that at the time of the second rape, the accused had not yet been convicted on the first
count. Again this is, of course, no excuse. But the Legislature has itself distinguished him from
persons who, having been convicted of two or more offences or rape but not yet sentenced,
commits yet another rape. If, for example, the accused in the first instance had not raped the
commits yet another rape. If, for example, the accused in the first instance had not raped the
first complainant more than once and he then i n the second instance raped the second
complainant only once while awaiting trial on the first count the prescribed sentence of life
imprisonment would not have come into reckoning.’
5 Dorland’s Illustrated Medical Dictionary 33 ed 2020 refers to the vertebrae as ‘any of the small irregular
bones of the vertebral column which comprises of seven cervical, twelve thoracic, and five lumbar
vertebra.’5 The T5 is the fifth thoracic vertebra closest to the skull.
6 S v Mahomotsa [2002] ZASCA 64; [2002] 3 All SA 534 (SCA); 2002 (2) SACR 435 (SCA) para 20.
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[17] Section 51(1) of the CLAA provides that a regional court or a high court shall
sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life. Part I (a) in Schedule 2 specifies the circumstances in which the
offence of rape will attract the sentence of life imprisonment. In terms of that provision
the sentence of life imprisonment becomes applicable where rape is committed ‘by a
person who has been convicted of two or more offences of rape or compelled rape,
but has not yet been sentenced in respect of such convictions’.
[18] It is apparent that the appellant was not yet convicted of rape in count 4 .
Therefore, the imposition of life imprisonment was a misdirection. The State conceded
to the misdirection . This misdirection justifies interference by this Court , and we are
entitled to consider the sentence afresh. Part III of Schedule 2 of the CLAA provides
for a minimum sentence of 10 years ’ imprisonment. Taking into account , amongst
other things, the appellant’s modus operandi and the impact of the rape as fully
discussed below, the sentence of 10 years’ imprisonment does not fit the crime in the
circumstances. Fifteen years’ imprisonment is the appropriate sentence under the
circumstances.
[19] The last issue is whether there were substantial and compelling circumstances
that justified deviation from the minim um prescribed sentences in this case . It is
apparent from the above description of the events that took place on the three
occasions that the aggravating circumstances present when committing the crimes by
far outweighed the mitigating factors. The high court was correct in considering that
the appellant’s criminal conduct was not ‘fleeting and impetuous’ ; that it was
‘calculated and callous’, and that there was no reason to deviate from the prescribed
minimum sentences.
[20] The only submission made on appeal was that the appellant‘s mother died
[20] The only submission made on appeal was that the appellant‘s mother died
when he was 7 years old. The suggestion was that the appellant was troubled by the
fact that his mother died without revealing the identity of his father. But all of this was
considered by the high court. The court also considered in the appellant’s favour, his
personal circumstances - that he was gainfully employed at the time of his arrest for
the offences in question and supporting his two minor children. It considered that
although he lost his only biological parent early in his life, his uncle and aunt gave him
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a ‘good and warm upbringing’ until he abandoned his post matric studies without telling
them’. The court considered that the appellant was a first offender.
[21] The appellant ruthlessly exploited the vulnerabilities of the most exposed
members of our society. He preyed on those most affected by the hi gh levels of
unemployment in the country. He deceived women, causing them to leave the security
and comfort of their homes. He caused them to use their meagre financial resources
to travel to Piete rmaritzburg. He robbed them of their scant belongings and then
humiliated the second and third complainants by raping them. In respect of the third
complainant the rape happened in the most degrading manner , in the presence of a
third person. He then left the complainants to their own devices in remote places at
night. This he did rep eatedly, as the high court correctly found. In all three i ncidents
there was no basis for a departure from the prescribed minimum sentences.
[22] Accordingly I grant the following order:
1 Save to the extent set out below the appeal is dismissed.
2 The order of the full court is set aside and replaced with the following:
‘2.1 Counts 1, 2, and 5 are taken together for purposes of sentence. The
accused is sentenced to 15 years’ imprisonment.
2.2 Counts 3 and 4 are taken together for purposes of sentence. The accused
is sentenced to life imprisonment.
2.3 In respect of count 6 the accused is sentenced to 15 years’ imprisonment.
2.4 All the sentences are to run concurrently.
2.5 All the sentences are antedated to 1 April 2015.
_____________________________
N P MALI
ACTING JUDGE OF APPEAL
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Appearances
For appellant: M M Chithi (with T Khowa)
Instructed by: Shoba Sandile Attorneys, Durban
Blair Attorneys, Bloemfontein
For respondent: Elsa Smith
Instructed by: The Director of Public Prosecutions, Pietermaritzburg
The Director of Public Prosecutions, Bloemfontein.