IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NO: A 29 /2022
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MZAMANE JERRY MALULEKA
and
THE STATE APPELLANT
RESPONDENT
1
Neutral Citation: Jerry Mzamane Maluleke v The State ZALMPPHC
Coram: Kganyago J and Morgan AJ
Heard: 13 September 2024
Delivered:
JUDGMENT
MORGANAJ
INTRODUCTION
[1] This is an appeal by the appellant, Mzamane Jerry Maluleke (Maluleke), against his
conviction and sentence imposed by Matubatse J in the Regional Division of Limpopo
held at Mahwelereng. The appellant challenged both the findings of fact and the
sentence delivered by Matubatse J. This appeal raises issues concerning the trial
court's assessment of evidence, application of legal principles , and the proportionality
of the sentence imposed.
[2] As a court of appeal, our role is to assess whether the trial court misdirected itself in
its assessment of the evidence or in the application of sentencing discretion that would
warrant overturning or altering the conviction and sentence.1 However, a court of
appeal's powers to interfere with the findings of the trial Court are limited.2 The primary
questions before this court are: (1) whether the trial court applied the law correctly to
the evidence , thereby resulting in a just conviction , and (2) whether the life sentence
imposed was appropriate , given the circumstances and any potential mitigating
1 S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645 E-F.
2 S v Francis 1991 (1) SACR 198 (A) at 240 D.
factors.
BACKGROUND FACTS
[3] The appellant, Mr. Maluleke, was convicted in the Limpopo Regional Court on three
counts of rape under section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, read with section 51 (1) of the Criminal Law
Amendment Act 105 of 1997. The conviction stemmed from events that took place on
1 December 2019, involving his former girlfriend, the complainant. According to the
complainant's testimony, Maluleke had forced her to his residence, where he engaged
in multiple acts of non-consensual sexual intercourse, threatening her with a knife and
a screwdriver. She described several instances of forced penetration, which the trial
court accepted as constituting rape.
[4] The trial court found Mafuleke guilty on all counts, sentencing him to life imprisonment
on 2 August 2022.3 The appellant now challenges both the conviction and the
sentence , arguing that the complainant's testimony should have been treated with
caution as she was a single witness, and that the medical evidence did not corroborate
penetration. Had the trial court evaluated the evidence properly in light of these factors,
the state would not have met the standard of proof required in criminal matters as it
would have failed to prove its case beyond a reasonable doubt. The appellant further
contends that the sentence imposed was unduly harsh and failed to consider
substantial and compelling circumstances, which should have warranted a deviation
from the prescribed minimum sentence.
THE LAW AND THE TRIAL COURT'S DECISION
[5] As stated earlier, the trial court convicted Maluleke of rape under section 3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act.4 This statute,
read with section 51 (1) of the Criminal Law Amendment Act 105 of 1997, mandates
life imprisonment for rape in certain aggravating circumstances, including repeated
3 Record of proceedings dated 02 August 2022 at pg 312.
4 Record of proceedings dated 17 May 2022 at pg 215.
acts of penetration without consent. The charge stemmed from the complainant's
account, detailing three distinct acts of non-consensual penetration, which the trial
court determined met the threshold for multiple counts of rape.
[6] In reaching this verdict, the trial court considered testimony from three state witnesses:
the complainant, a medical examiner, and the investigating officer. The complainant's
testimony described an ordeal involving threats with a knife and screwdriver, physical
assault, and forced sexual acts, which occurred despite her expressed resistance.
Although the medical examination, conducted two days post-incident, revealed no
physical injuries corroborating forced penetration, the doctor explained that
menstruation and prior childbirth might account for the absence of injuries.
[7] The court applied the principles governing evidence evaluation, emphasising that a
single witness's testimony could suffice for conviction if clear and satisfactory.5 Relying
on S v Trainor6 and S v Sithole,7 the court weighed the complainant's testimony
against Maluleke's version, which claimed consensual interaction influenced by
alcohol. Matubatse J found there to be inconsistencies in the appellant's account while
the complainant was credible and consistent, noting the lack of any apparent bias
against Maluleke.8
[8] The trial court ultimately rejected Maluleke's version as implausible and convicted him
on the strength of the complainant's testimony.9 In sentencing, the court considered
Maluleke's personal circumstances, as highlighted in the pre-sentence report, and the
aggravating nature of the offence, underscoring the severity of rape as a violation of
dignity and autonomy.10
APPLICATION AND CONCLUSION
5 Record of proceedings dated 17 May 2022 at pg 207.
6 S v Trainor2003 (1) SACR 35.
7 S v Sithole 1999 (1) SACR 585 (W).
8 Record of proceedings dated 17 May 2022 at pg 211.
9 Record of proceedings dated 17 May 2022 at pg 213 -215.
10 Record of proceedings dated 02 August 2022 at pg 307.
[9] The Constitutional Court in S v Bogaard said that for a court of appeal to interfere with
a sentence imposed by a lower court:
'It can only do so where there has been an irregularity that resulted in
a failure of justice; the court below misdirected itself to such an extent
that its decision on sentence is vitiated; or the sentence is so
disproportionate or shocking that no reasonable court could have
imposed it. '11
[1 O] A court of appeal will be entitled to interfere with the sentence imposed by the trial
court if the sentence is disturbingly inappropriate or out of proportion to the
seriousness of the offence.12
[11] It is trite that in imposing the appropriate sentence, a court should always balance the
nature and circumstances of the offence, the personal circumstances of the offender
and the impact of the crime on the community, its welfare and concern.13
[12] In S v Vilakazi, it was held that:
'The personal circumstances of the appellant, so far as they are
disclosed in the evidence, have been set out earlier. In cases ofserious
crimes, the personal circumstances of the offender by themselves, will
necessarily recede into the background. Once it becomes clear that
the crime is deserving ofa substantial periodofimprisonmentthe
questions whetherthe accusedis marriedorsingle, whether he has two
children or three, whether or not he is in employment , are in
themselves largely immaterial to what that period will be, and those
seem to me to be the kind of 'flimsy· grounds that Ma/gas said should
be avoided.'14
11 S v Bogaard [2012] ZACC 23; 2012 (12) BCLR 1261 (CC); 2013 (1) SACR 1 (CC) at para 41.
12 S v Romer 2011 (2) SACR 153 (SCA) at para 22.
13 S v Banda and Others 1991 (2) SA 352 BSD at 355.
14 S v Vilakazi 2012 (6) SA 353 (SCA) at para 53.
[13] A fundamental and well-entrenched principle of our legal system is that the authority
to determine an appropriate sentence rests predominantly with the trial court.
Consequently, the appellate court's ability to alter a sentence handed down by the trial
court is both limited and carefully constrained. This limitation is clearly designed to
prevent undue encroachment on the trial court's sentencing discretion by the appellate
court. Over time, varying interpretations of the standard for appellate intervention in
sentencing have emerged, leading to a measure of subtle confusion and significant
uncertainty . Nonetheless, in my opinion, the definitive standard for when an appellate
court is justified in interfering with a sentence has been clearly and authoritatively
articulated in S v Kgosimore:
'It is trite law that sentence is a matter for the discretion of the court
burdened with the task of imposing the sentence. Various tests have
been formulated as to when a Court of appeal may interfere. These
include whether the reasoning of the trial court is vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock or whether there
is a striking disparity between the sentence imposed and the sentence
the Court of appeal would have imposed. All these formulations ,
however, are aimed at determining the same thing; viz whether there
was a proper and reasonable exercise of the discretion bestowed upon
the court imposing sentence. In the ultimate analysis this is the true
inquiry. (Compare S v Pieters 1987 (3) SA 717 (A) at 727G -I.) Either
the discretion was properly and reasonably exercised or it was not. If
it was, a Court of appeal has no power to interfere; if it was not, it is
free to do so. I can, accordingly, see no juridical basis for the stricter
test suggested by counsel; nor is there anything ins 3168 of the Act,
or for that matters 31 OA, to suggest otherwise. (See also S v Anderson
1964 (3) SA 494 (A).) It follows that, in my view, whether it is the
Attorney -General (now the Director of Public Prosecutions) or an
accused who appeals against a sentence, the power of a Court of
appeal to interfere is the same.'15
15 s v Kgosimore 1999(2) SACR 238 (SCA) at para 10.
[14] The Supreme Court of Appeal in S v Ma/gas articulated the test as follows:
'A court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question of
sentence as if it were the trial court and then substitute the sentence
arrived at by it simply because it prefers it. To do so would be to usurp
the sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its exercise of that discretion, an appellate
Court is of course entitled to consider the question of sentence afresh.
In doing so, it assesses sentence as if it were a court of first instance
and the sentence imposed by the trial court has no relevance . As it is
said, an appellate Court is at large. However, even in the absence of
material misdirection, an appellate court may yet be justified in
interfering with the sentence imposed by the trial court. It may do so
when the disparity between the sentence of the trial court and the
sentence which the appellate Court would have imposed had it been
the trial court is so marked that it can properly be described as
'shocking', 'startling' or 'disturbingly inappropriate'. It must be
emphasised that in the latter situation the appellate court is not at large
in the sense in which it is at large in the former. In the latter situation it
may not substitute the sentence which it thinks appropriate merely
because it does not accord with the sentence imposed by the trial court
or because it prefers it to that sentence. It may do so only where the
difference is so substantial that it attracts epithets of the kind I have
mentioned. No such limitation exists in the former situation.'16
[15] It is a cornerstone of our legal system that appellate courts exercise restraint in
interfering with the findings of trial courts. This principle is rooted in the recognition
that trial courts are uniquely positioned to assess credibility and determine the weight
of evidence, having had the advantage of observing witnesses as they testified. The
appellate court's role is not to second-guess the trial court but to ensure that justice
16 S v Ma/gas 2001 (1) SACR 469 (SCA) at para 12.
was done. Thus, the threshold for intervention is high and confined to circumstances
where the trial court committed material misdirection or acted irrationally .
[16] The jurisprudence on this matter is unequivocal. In S v Ma/gas, the Supreme Court of
Appeal held that an appellate court must not substitute its view simply because it would
have exercised discretion differently. Instead, intervention is permissible only where
the trial court's decision is vitiated by significant misdirection or where the sentence
imposed is startlingly inappropriate, inducing a sense of shock. These principles are
not mere formalities but safeguards against undermining the integrity and finality of
judicial processes .
[17] In the case before us, the trial court discharged its duties. It engaged in a thorough
evaluation of the evidence, paying close attention to the inherent probabilities and
improbabilities in the versions presented. The complainant , though a single witness,
provided a coherent and unwavering account of the events. The trial court applied the
cautionary rule governing single-witness testimony with scrupulous care, as outlined
in S v Sauls, ultimately concluding that her testimony met the requisite threshold of
clarity and reliability.
[18] The appellant's version, by contrast, was riddled with inconsistencies and lacked
credibility. The trial court observed material departures between the appellant's
testimony and the defence presented during cross-examination , undermining the
plausibility of his denial. It is well-settled that an appellate court must defer to a trial
court's credibility findings unless they are demonstrably tainted by material error. In
this case, no such error is apparent.
[19] On sentencing, the trial court acted within the framework prescribed by law. The
offences in question are of the utmost gravity, involving repeated violations of the
complainant's dignity and autonomy under circumstances of extreme coercion. The
trial court appropriately determined that no substantial and compelling circumstances
existed to justify a departure from the legislatively mandated life sentence . This
conclusion accords with the guidance provided in S v Vilakazi, where the Supreme
Court of Appeal held that, in serious crimes, personal mitigating factors must recede
into the background.
[20] To interfere with the trial court's findings in this matter would not only subvert the well­
established principles governing appellate review but also risk diluting the severity with
which our courts must respond to offences of this nature. It is neither the function nor
the prerogative of this court to usurp the trial court's discretion , s~ve where it has been
shown to be improperly exercised-a standard that has not been met in this case.
[21] In reviewing the judgment and the record in this matter, I find no material misdirection
in the trial court's evaluation of the evidence, application of evidential principles or in
the discretion exercised in sentencing. Although uncorroborated , the complainant's
testimony was credible, reliable, and consistent, meeting the legal threshold for
conviction based on a single competent witness.
[22] The appellant's version, however, was implausible and unsupported by the evidence.
The trial court reasonably and properly rejected his version as being false beyond
reasonable doubt17. The appellant conceded under cross-examination that he did not
recall the events of the day in question, which undermined the force of his denial.18
The trial court also correctly noted that the appellant's testimony departed in several
material respects from the version put on his behalf to the complainant by his legal
representative19. This rightly diminished his credibility.
[23] In evaluating the evidence, it should be noted that the trial court had the benefit of
observing first-hand the performance of all witnesses in assessing the weight of their
evidence. When viewed cumulatively and holistically , the evidence established the
appellant's guilt beyond reasonable doubt. There is no reason to interfere with the trial
court's finding in this regard.
[24] Regarding the sentence, the gravity of the offence and its impact on the complainant,
as well as societal interest in addressing sexual violence, justify the imposition of the
prescribed life sentence. No substantial or compelling circumstances in evidence
warranting deviation from the mandatory minimum sentence.
17 Judgment , record dated 17 May 2022, page 213.
18 Record of proceedings dated 8 April 2022, page 166, lines 10 -21
19 Record of proceedings dated 8 April 2022, page 168, lines 10 -22; pages 171 -172; page 174, lines
15 -25.
[25) For these reasons, this court cannot and will not interfere. Both the conviction and
sentence must stand. Accordingly , both the conviction and sentence are upheld.
ORDER
1. The appeal against both conviction and sentence are dismissed .
2. No order as to costs.
I agree, and it is so ordered. Acting Judge of the High Court of .... v, ....... ,
Limpopo Division, Polokwane
Limpopo Division, Polokwane
PARTIES REPRESENTATIVES
FOR THE APPELLANT
DJ Nonyane- Polokwane Justice Centre
Legal Aid South Africa
FOR THE RESPONDENT
Adv Mufamadi E.S.J
The Director of Public Prosecutions