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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A121/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 23 May 2025
SIGNATURE
In the matter between:
MANDLA DUNKU SIBIYA Appellant
and
THE STATE Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand -down is deemed to be ___ May 2025 .
JUDGMENT
MOKADIKOA – CHAUKE, AJ
Introduction
[1] The appellant was charged in the Regional Court sitting in Tsakane with one
count of rape of a seventeen -year-old girl. The appellant was further charged with a
second count of assault with intent to do grievous bodily harm. The appellant was
informed that the provisions of section 51(1) of the Criminal Law Amendment Act
105 of 1997 w ere applicable on count 1, in that the rape was committed after he
assaulted the complainant with a pot.
[2] The appellant was legally represented during the trial.
[3] The appellant was, on 14 November 2023, convicted of rape in contravention
of section 3 of the Criminal Law Ame ndment Act (Sexual Offences and Related
Matters) 32 of 2007 (Count 1) and assault with intent to do grie vous bodily harm
(Count 2).
[4] On 26 March 2024 , he was sentenced to life imprisonment in respect of count
1, and 12 months imprisonment in respect of count 2. Count s 1 and 2 were ordered
to run concurrently in terms of section 280(2) of the Criminal Procedure Act 51 of
1977.
[5] The appellant has an automatic right of appeal because of the sentence of life
imprisonment that was imposed.
[6] The appellant has approached this Court on appeal against both conviction
and sentence.
Testimony by the c omplainant
[7] The complainant, R[...] P[...] S[...] , testified that on 16 March 2019 , she was
home alone after her mother and her friend had left. The appellant opened the door
and asked her why the door was not locked as someone can come in and rape her .
He ordered her to lock the door . Whilst she was trying to close the door, the
appellant pushed the door and the complainant fell on the bed. The complainant was
frightened and she scream ed. The appellant told her that she was making noise, and
he took a p ot that was on the floor and hit her with it on her face. The appellant
removed her swimming costume , which she was wearing , with force, and removed
his pants. The complainant tried to resist, but the appellant was stronger than her
and he came between the complainant’s thighs , forcefully kissed her and then
inserted his penis inside her vagina, thus raping her.
[8] After the appellant raped her , the complainant and the appellant got dressed
and the appellant left the house. The complainant also left the house and ran to her
friend ’s house , where she reported what had happened to her friend’s mother. The
friend’s mother phoned the complainant’s mother and when she arrived , the
complainant also reported to her that the appellant had raped her. The police were
called and when they arrived, she was taken to a medical practitioner who examined
her. The complainant sustaine d an injury on her lip as a result of the assault with the
pot.
Testimony by Ms L[...] (witness)
[9] S[...] J[...] L[...] (“Ms L[...]”) testified that she knows the complainant. The
complainant and her daughter are friends. During the evening of 16 March 2019, she
heard someone crying outside. She went out of the house and found the
complainant. She asked the complainant what was wrong, and the complainant told
her that Dunku (referring to the appellant) , had raped her. The complainant was
pointing at a man that was running away. Ms L[...] called her brother and asked him
to run after the man and bring him back, but her brother was not able to catch up
with the man who was pointed out by the complainant. She blew a whistle to call
members of the community. She called the complainant’s mother, and the police
were also called.
The State presented the following evidence in support of its case :
[10] The State handed in a J88 report by a medical officer in terms of section 220
of the Criminal Procedure Act, as well as, a Forensic DNA report, as exhibits B and
C respectively. The legal representative of the appellant confirmed the correctness of
both these reports; they were not in dispute. The two reports captured the following:
10.1 The J88 report, which is a gynaecological examination report , reflected
the following conclusion: “physical injuries are consistent with the
history of physical assault”.
10.2 The Forensic DNA Report , which is the results of the semen specimen
that was found on the complainant : The complainant ’s panty was taken
for DNA testing, where a semen specimen was found and tested in
comparison with the appellant ’s semen. The DNA result of the semen
specimen that was on the complainant’s panty was found to match the
DNA of the appellant’s semen. There was a complete match on the two
samples.
Thereafter , the State closed its case. The defence commenced with its case and the
appellant testified in his defence . The Pre -sentencing Report and Victim Impact
Report were, also handed in by consent.
Testimony in defence by appellant
[11] The appellant, Mandla Dunku Sibiya, testified that on 16 December 2015 , he
met the complainant and he proposed love to her. On 16 March 2019 , the
complainant invited him to visit her later, which he did. The appellant testified that he
arrived at the complainant ’s home and they started talking. The complainant told him
that her mother was not around and that he should relax . He massaged her and
they both enjoyed themselves. The appellant asked the complainant if she had
condoms, and she said she did not. The appellant became angry and hit the
complainant with a p an on her cheek , but the complainant calmed him down. He left
the complainant’s ho use and she walked with him for a short while and then turned
back. The appellant could not give reason s why he attacked the complainant with the
pan. The appellant further denied that he had sexual intercourse with the
complainant.
After consideration of the evidence of all the witnesses, the Court a quo decided
against the appellant and sentenced him to life imprisonment.
Ad Conviction
[12] On appeal , the appellant raised the following grounds:
a. The complainant was not a reliable witness;
b. The State failed to prove their case against the appellant beyond
reasonable doubt;
c. The version of the appellant is reasonably possibly true.
In oral argument , the appellant’s counsel submitted that whatever could be said in
favour of the appellant was contained in the heads of argument. As far as the
conviction of rape was concerned, he could not fathom the appellant’s version that
he did not have sexual intercourse with the complainant whilst the Forensic DNA
Report was admitted as correct.
[13] The Forensic DNA Report puts to be d the appellant’s appeal. The report is
proof beyond reasonable doubt that the appellant raped the complainant. Besides
the bare denial, the appellant could not provide any explanation as to how his semen
ended up on the complainant’s panties, if, as he alleges, he did not have sexual
intercourse with her. There is, therefore, no need for this Court to go into the
evidence. Besides, t he Court a quo made credibility findings in relation to all the
State’s witnesses. It found the witnesses to be credible, reliable , and truthful , and
cannot be faulted in that regard. The Court a quo was correct in its guilty finding on
the charge of rape.
Ad Sentence
[14] In trying to convince the court to temper with the sentence imposed by the
Court a quo , counsel for the appellant orally argued that the fact that the complainant
suffered only the injury to her lip, which was caused by the pan that the appellant
used to hit her, should count in the appellant’s favour as no excessive force was
used during the commission of the offence. The appellant’s counsel, however, ended
up conceding that the trauma that the complainant suffered as a result of the rape
should count as injury suffered by the complainant. Counsel could not take the
argument any further and requested the court to consider the argument raised in the
appellant’s heads of argument.
[15] Relying on the judgment in S v Vilakazi ,1 where it was found that:
‘’It is clear from the terms in which the 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
1 2009 (1) SACR 552 (SCA) at par 15 .
circumstances of the particular case, whether the prescribed sentence is
indeed proportionate to the particular offence’’
it was argued on behalf of the appellant, in the heads of argument, that the sentence
of life imprisonment is shocking and inappropriate. The argument was further that the
sentence , in the circumstances of this case , is out of proportion with the facts of the
case and that the Court a quo clearly over emphasized the interest s of the
complainant and that of the community.
[16] The Court was, furthermore, referred to the judgment in S v GN 2 whereat Du
Plessis J, held as follow s
‘’In S v Malgas (par 25) Marais JA pointed out that s 51 of the Act ‘has limited
but not eliminated the courts’ discretion in imposing sentence’. It follows that,
where the Act prescribes a minimum sentence, the courts must still seek to
differentiate between sentences in accordance with the dictates of justice.’’
[17] The State, in turn, argued that the sentence is appropriate and should not be
reconsidered.
[18] Sentencing is a matter pre -eminently for the discretion of the Court a quo . The
court hearing the appeal should be careful not to erode that discretion and would be
justified to interfere only if the trial court’s discretion was not judicially and properly
exercised , which would be the case if the sentence imposed is vitiated by irregularity
or misdirection or is disturbingly inappropriate .3
[19] A sentence of life imprisonment is prescribed for rape where the victim is
assaulted with the intention to do grievous bodily harm, and it can only be deviated
from if the court finds substantial and compelling circumstances warranting the
imposition of a lesser sentence.4
[20] The Court a quo, correctly, found no substantial and compelling
circumstances that would have compelled it to deviate from the prescribed minimum
2 2010 (1) SACR 93 (T) at para 12. See also S v Mahomotsa 2002 (2) SACR 435 (SCA) and S v Nkomo 2007 (2)
SACR 198 (SCA) .
3 S v Rabie 1975 (4) SA 855 (A) .
4 Section 51 of the Criminal Law Amendment Act 105 of 1997 .
sentence. It found so , having taken the appellant’s personal circumstances into
account as against the gravity of the offence and the interest s of society. The
appellant’s personal circumstances were overwhelmed by the other factors.
[21] It is trite, violence against women and children is prevalent in this country. The
offence of rape is, also, grievous in nature and is aggravated by the fact that the
complainant , in this instance, was raped inside the sanctity of her own home where
she was supposed to feel most safe and protected. She was traumatised. In the
Victim Impact Report, the complainant states : “after I have been raped, I changed a
lot because I felt like I lost purpose of living, what’s worse I have lost my dignity after
the rape.’’ This profoundly indicates the trauma that the complainant continues to
suffer.
[22] In S v Kearns ,5 it was held:
“A rapist not only violates the victim’s privacy and personal integrity , but
inevitably causes serious psychological harm in the process. Rape is not
merely a physical assault; it is often destructive of the whole personality of the
victim. A murderer destroys the physical of his victim, a rapist degrades the
very soul of the helpless female. The physical scar may heal , but the mental
scar will always remain. When a woman is ravished , what is not merely
physical injury , but the deep sense of some deathless shame. It is a violation
with violence of the private person of a woman. This constitutes an outrage by
all means. By the very nature of the offence, it is an obnoxious act of the
highest order .’’
[23] The appellant is, in addition, not a first time offender. He was convicted of
malicious injury to property in 2013, which involved an element of violence. This is
indicative of his character. In S v Malgas ,6 it was held that
“the specified sentences were not to be departed from lightly and for flimsy
reasons which could not withstand scrutiny. Speculative hyp otheses
favourable to the offender, maudlin sympathy , aversion to imprisoning first
offenders , personal doubts as to the efficacy of the policy implicit in the
5 2009 (2) SACR 684 (GSJ) at para 15.
6 2001 (1) SACR 469 (SCA) at para 9 d - e.
amending legislation, and like considerations were equally obviously not
intended to qualify as substantial and compelling circumstances.”
[24] In our view , the arguments raised by counsel for the appellant on sentence
are unmeritorious, and we find no material misdirection on the finding of the Court a
quo on the sentence imposed . It is in line with a proper exercise of judicial
discretion on any sentencing court in the position of the Court a quo .
[25] The sentence imposed by the Court a quo is appropriate under the
circumstances.
[26] Consequently, I propose the following order:
1. The appeal is dismissed.
2. The conviction and sentence on count 1 is confirmed.
3. The conviction and sentence on count 2 is confirmed .
4. The appellant’s name is to be put in a registrar of sexual offenders.
M MOKADIKOA -CHAUKE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree and it is so ordered
E M KUBUSHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 05 March 2025
Date of Judgment: ___ May 2025
APPEARANCES
For the App ellant : Adv L Augustyn
Instructed by: Legal Aid
For the Respondent: Adv Masekoameng
Instructed by Director of Public Prosecutions