IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No.: CA & R 155/2024
Reportable YES/NO
In the matter between:
LULAMILE STUNGA APPELLANT
versus
THE STATE RESPONDENT
________________________________________________________________
JUDGMENT ON APPEAL
________________________________________________________________
Cengani-Mbakaza AJ
[1] Pursuant to a plea of guilty and a conviction on a charge of rape in
contravention of s 3 read with ss 1, 55, 56(1), 57, 58, 59 and 60 of the Criminal Law
Sexual Offences and Related Matters Amendment Act 32 of 2007 and further read
with the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997
(CLAA), the Regional Court sitting in Somerset East sentenced the appellant to life
imprisonment. Aggrieved by the sentence, the appellant exercised his automatic
right of appeal in terms of the provisions of s 309 of the Criminal Procedure Act 51 of
1977 to appeal against the sentence of imprisonment for life. The state opposes the
appeal.
[2] The notice of appeal lists the following as the grounds of appeal:
2.1 The effective term of life impri sonment is strikingly inappropriate in that it
is out of proportion to the totality of the accepted facts in mitigation.
2.2 The court erred by not deviating from the prescribed minimum sentence of
life imprisonment.
[3] On 23 September 2023, the compl ainant, an 11 -year-old girl, was at home
with the appellant. The appellant was seated in the dining room while the
complainant was lying on her bed. The appellant approached the complainant and
initiated a conversation with her. He then instructed her to take off her panties and
the complainant complied. He inserted his penis into the complainant’s vagina. While
still engaged in sexual intercourse with the complainant, the appellant’s girlfriend
entered the house. The appellant jumped from the bed. His gi rlfriend noticed that he
had unzipped his pair of trousers. She confronted the appellant who failed to
respond.
[4] Following the appellant’s arrest, the complainant was examined by Doctor
Moshidi who documented the following that she weighed 28.9 kilogr ams, was visibly
emotional during examination, had a minor discharge from the vagina, had a bruised
labia minora, a ragged hymen and a large vaginal opening.
[5] In mitigation of sentence, the appellant did not lead any evidence. The
appellant’s legal re presentative informed the court from the bar that the appellant
was born on 3 December 1971, has four children who are living with their mothers,
he completed grade 11 and had been employed as a general farm worker, earning
R1 600 per month. The appellant admitted his previous conviction of assault with
intent to do grievous bodily harm in respect of which he was sentenced to a
suspended term of 9 months’ imprisonment on 17 October 2024.
[6] It is well -established that sentencing is a matter primarily for the trial court’s
discretion and the appeal court should be cautious not to encroach on this discretion.
An appeal court will only interfere in the sentencing court’s discretion if it is exercised
unreasonably or in circumstances where it is strikingly inappropriate.
[7] Notably, in S v Pillay , the court stated the following regarding an appeal on
sentence:
“As the essential inquiry in an appeal against sentence, however, is not
whether the sentence is right or wrong, but whether the Court in imposin g it
exercised its discretion properly and judicially, a mere misdirection is not by
itself sufficient to entitle the Appeal Court to interfere with the sentence; it
must be of such a nature, degree or seriousness that it shows, directly or
inferentially, that the court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection is usually and conveniently
termed one that vitiates the Court’s decision on sentence. That is obviously
the kind of misdirection predicat ed in the last quoted dictum above: one that
the “dictates of justice” clearly entitle the Appeal Court “to consider the
sentence afresh.”
[8] The issue for determination before this court is whether the Regional Court
erred in finding that no substantial and compelling circumstances existed. In S v GK ,
Rogers J (as he then was) stated that on appeal, the court may take into account
and examine not only those factors considered by the trial court, but all the
circumstances bearing on the question, in orde r to determine the correctness of the
trial court’s findings regarding the absence or otherwise of substantial and
compelling circumstances.
[9] The Supreme Court of Appeal (SCA) in S v Malgas (Malgas) had indicated
that the prescribed sentences are the starting point when imposing a minimum
sentence and should not be departed from for flimsy reasons. The SCA emphasised
sentence and should not be departed from for flimsy reasons. The SCA emphasised
that courts are obligated to implement the prescribed minimum sentences
notwithstanding any personal doubts or concerns regarding the efficacy of the policy
underlying the legislation. Furthermore, speculative hypotheses favourable to the
offender as well as undue sympathy are to be excluded. The principles
encapsulated in Malgas were followed in S v Matyityi and a long line of cases.
[10] The legislature’s strict adherence to the provisions of the CLAA is evident in
the wording of section 51(3)(a) of the CLAA. This provision dictates that “if any court
referred to in subsection (1) or (2) is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence than the one
prescribed, the court shall enter those circumstances on the record of the
proceedings and may thereupon impose such lesser sentence”.[emphasis added].
[11] Despite the f act that substantial and compelling circumstances are not
explicitly defined, for circumstances to qualify as substantial and compelling, the
courts have established that they need not be exceptional, in the sense of being
rarely encountered or seldom. The ir scope is not limited to those which diminish the
moral guilt of the offender. In instances where a court is convinced that, after
consideration of all factors, an injustice would occur if the minimum sentence is
imposed, then it can categorise such fac tor(s) as constituting substantial and
compelling circumstance(s) .
[12] Sexual violation against children evokes communities’ indignation and often
prompts them to resort to self -help. There are multitude of cases that describe rape
as a degrading, humiliating and brutal invasion of a person’s most intimate private
space. Our Constitution guarantees that no one may be subjected to violence in any
form. It also upholds the paramountcy of the best interests of the minor children. In
De Reuck v DPP WLD Epstein AJ stated,
“The fact that the Constitution regards a child’s best interests as of paramount
importance must be emphasised. It is the single most important factor to be
considered when balancing or weighing competing rights and interests
concerning children. All compe ting rights must defer to the rights of children
concerning children. All compe ting rights must defer to the rights of children
unless unjustifiable. Whilst children have a right to inter alia, protection from
maltreatment, neglect, abuse or degradation, there is a reciprocal duty to
afford them such protection. Such a duty falls not only on law enforcement
agencies but also on right thinking people, and ultimately the court, which is
the upper guardian of all children.”
[13] The parties referred to the aggravating factors in this matter. As fortified by
Matyityi , the state obtain ed a victim impact statement through the complainant’s
mother. Ms NM testified that eight months after the incident, the complainant still
experienced nocturnal crying and would occasionally bursts into tears for no
apparent reason. The complainant’s emoti onal state during clinical examination
further underscores her mother’s testimony regarding the psychological impact of the
rape incident as well as physical trauma which has already been noted in paragraph
4 above.
[14] The incident was perpetrated by someone in a position of trust, being close to
the complainant and in her place of safety. This introduced a clear element of trust.
Although the appellant could have potentially concealed the crime, he was caught in
the act. Given these circumstances, his g uilty plea is a neutral factor, reasonably
inferred to be motivated by the overwhelming evidence rather than genuine remorse.
[15] Upon examination of all the evidence, the Regional Court duly considered the
appellant’s personal circumstances in relation to the legitimate interests of the
community. The appellant’s conduct, including his previous conviction involving an
element of violence, indicates a lack of prospects of rehabilitation. Therefore, the
cumulative effect of the appellant’s personal circums tances, weighed against the
aggravating factors, does not constitute substantial and compelling circumstances
justifying a departure from the prescribed sentence of life imprisonment. Instead,
they constitute flimsy reasons, which are excluded in terms of Malgas.
[16] In the result, the appeal against sentence is dismissed.
_______________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
I agree
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G H BLOEM
JUDGE OF THE HIGH COURT
APPEARANCES:
For the state : Adv. S Hendricks
DPP, Makhanda
For the accused : Adv. D P Geldenhuys
Legal Aid-SA, Makhanda
Date heard : 16 April 2025
Date of delivery : 15 July 2025