IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

Reportable/Not Reportable
Case no: A170/2024

In the matter between:

THULANI NONGWANA APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Thulani Nongwana v The State (Case no A170/2024 )
(DDMMYY)
Coram: CLOETE, J AND MPHEGO AJ
Heard: 1 August 2025
Delivered: 8 August 2025
Summary: The appellant herein has exercised his automatic right to bring an appeal
to this court against the life imprisonment sentence imposed on two counts of rape
(counts 3 and 4) , which sentence was imposed on 9 May 2024 by the Worcester
Regional Magistrate’s Court. The appeal against the sentence of life imprisonment
imposed on the two counts of rape (counts 3 and 4) is dismissed.
_____________________________________________________________

ORDER

_____________________________________________________________
1. The appeal against the sentence of life imprisonment imposed on the two
counts of rape (counts 3 and 4) is dismissed.

_____________________________________________________________

JUDGMENT

_____________________________________________________________
Mphego AJ (Cloete J concurring):

Introduction and background

[1] This is an appeal where the appellant has exercised his automatic right of
appeal1 to the life imprisonment sentence imposed by the trial court ( Worcester
Regional Magistrate’s Court) for the two counts of rape of an adult female victim on 3
September 2018 . The appellant was also convicted and sentenced for the
kidnapping and assault of the victim.

[2] This appeal is confined to the sentence imposed for the two counts of rape of
the victim and does not extend to the convictions themselves or to the sentences for
kidnapping or assault. In relation to the two counts of rape, the appellant was found
to have committed an offence in terms of s 3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007 (‘the Sexual Offences Act’) and
was convicted.

[3] The conviction by the trial court invoked s 51(1) of the Criminal Law
Amendment Act 105 of 1997 (‘the minimum sentence legislation’) which prescribes
imprisonment for life unless in terms of s 51(3) of the minimum sentence legislation ,

1 In terms of s 309(1)(a) of the Criminal Procedure Act.

the trial court is satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the sentence prescribed, in which
case the trial court shall enter those circumstances on the record of the proceedings
and must thereupon impose such lesser sentence.

[4] The proven facts emanating from the trial court record are as follows:

a) The appellant and the victim were not known to each other before the day the
appellant committed the crimes . They met for the first time on the day in question at
Danny’s Tavern in Worcester.

b) In the early hours of 3 September 2018, the victim left the tavern with a male
friend, Nyaniso, and was waiting outside his house when the appellant, who had
followed them from the tavern, approached her. The appellant confronted the victim
about Nyaniso, questioning why she was with a ‘foreigner’ (Nyaniso). The appellant
requested the victim to leave with him.

c) The victim refused to leave with the appellant. In response, the appellant
forcefully grabbed her hand, pulled her away from the gate where she was waiting,
and began to assault her in full view of other persons in that street . The victim
screamed for help but her cries were ignored by the people in that street.

d) The appellant deprived the victim of her freedom of movement by forcefully
taking her to his house against her will. At his house, the appellant instructed the
victim to undress. When she refused, he assaulted her further. The appellant
undressed the victim (leaving her vest and bra), pushed her onto the bed, and, after
overcoming her resistance through further assault, raped her by vaginal penetration.
Later that morning, the appellant raped the victim again, once more using force and
without her consent. The appellant then walked the victim half way home. The victim,
who was visibly bruised from the assault later reported the crime to the police
station. The victim did not willingly give consent to the sexual intercourse.

e) During the ordeal, the appellant assaulted the victim with open hands, fists,
and head -butted her, causing visible injuries including swelling and bruises to her
face, body, and thighs.

[5] The victim’s version of events as presented by the respondent at the trial
court was overwhelmingly corroborated by a medical report and photographs
showing fresh bruises and swelling consistent with her account of the assault and
rape, as well as the testimony of witnesses called by the respondent.

[6] At the time of sentencing, the trial court was presented with the following
factors: (1) the appellant was a young (26 year old) first time offender with potential
for rehabilitation; (2) the appellant lost his father when he was 7 (seven) years old ;
(3) he lost his mother in the year 2018 (4) he carried out the crime while under the
influence of alcohol ; (5) he was gainfully employed and supported his extended
family and (6) has ‘taken responsibility’ for his actions as set out in the pre -sentence
report. It was acknowledged that the victim suffered physical injuries (swelling and
bruises), but it was pointed out that there were no serious or lasting injuries.

[7] It was argued on behalf of the appellant that, while none of the individual
factors might amount to substantial and compelling circumstances on their own,
when considered cumulatively, they justified a deviation from the minimum sentence
of life imprisonment.

[8] In turn, t he respondent made submissions to support the imposition of the
prescribed minimum sentence of life imprisonment for the rape convictions. The
respondent presented a case focusing on the severity of the crimes committed, the
impact on the victim, and the need for a stringent sentence to reflect the gravity of
the crimes and to serve as a deterrent. The respondent argued that the appellant's
actions were premeditated and opportunistic, showing a clear intent to harm and

actions were premeditated and opportunistic, showing a clear intent to harm and
violate the victim and that the appellant’s behaviour during the trial, including his lack
of genuine remorse and attempts to evade arrest, further demonstrated his
culpability and the need for a severe sentence. The submissions by the respondent
were supported by victim impact statements and a pre-sentence report.

[9] In heads of argument, t he respondent’s counsel emphasized the seriousness
and prevalence of rape, referencing case law (S v Vilakazi 2009 (1) SACR 552
(SCA)), underlining the gravity of the crime of rape and that the circumstances of the
offender necessarily regress into the background when determining an approp riate
sentence.

[10] The respondent argued that the appellant’s lack of genuine remorse, the
violence involved, and the vulnerability of the victim were aggravating factors. The
respondent also highlighted that the appellant’s late admission of guilt (only to the
probation officer, not in court) should not be consid ered a mitigating factor, and that
alcohol consumption could not excuse or mitigate the offences.

[11] The respondent argued that the absence of previous convictions;
youthfulness, or lack of lasting physical injury do not, on their own, constitute
substantial and compelling circumstances to justify deviation from the minimum
sentence and that other courts have consistently upheld life imprisonment in similar
cases, even where the appellant was a first offender or relatively young, especially
where aggravating factors such as violence, lack of remorse, and the vulnerability of
the victim are present.

The trial court findings

[12] The trial court highlighted the brutal nature of the assault associated with the
two counts of rape, the physical and psychological trauma inflicted on the victim, the
appellant’s conduct after committing the crime, including evading arrest and
providing misleading information about his whereabouts and the lack of genuine
remorse.

[13] The trial court found that the aggravating circumstances far outweighed the
personal circumstances of the appellant and ultimately concluded that there were no
substantial and compelling circumstances that justified deviating from the prescribed
minimum sentence of life imprisonment for the rape charges. The court found the

minimum sentence of life imprisonment for the rape charges. The court found the
appellant’s late admission of guilt to be more an expression of regret than true
remorse.

[14] The trial court acknowledged that the appellant was a first offender and
relatively young at the time of the offence. However, it found that these factors, while
relevant, did not in themselves constitute substantial and compelling circumstances
sufficient to deviate from the prescribed minimum sentence for such serious
offences.

[15] The trial court noted the appellant’s employment and support of his family, but
found that these circumstances were outweighed by the gravity of the offences and
the impact on the victim.

[16] The trial court was not persuaded that the appellant’s late admission of guilt to
the probation officer amounted to genuine remorse. It found that this admission
came only after conviction. The trial court distinguished between regret and true
remorse, finding the former to be present in this case.

[17] The trial court rejected the argument that intoxication was a mitigating factor,
noting that the appellant was not so intoxicated as to be unaware of his actions, and
that he continued to violate the victim after sobering up.

[18] The trial court expressly referred to s 51(3) (aA) of the minimum sentence
legislation, which provides that an apparent lack of physical injuries to the victim
does not constitute a substantial and compelling circumstance justifying a lesser
sentence. The trial court held that, while the absence of lasting injury could be a
mitigating factor in the overall assessment, it could not, either alone or cumulatively
with the other factors, justify a deviation from the minimum sentence.

The appeal

[19] This court , sitting as an appeal court is not at liberty to impose what it
considers to be the correct sentence simply because it would have chosen
differently. Instead, it is guided by well -established principles which prescribe that it
will only interfere with a sentence imposed by the trial court if there has been a
material misdirection such as a failu re to consider relevant factors, or if there has

been over- or under -emphasis of certain factors, or an error in principle or if the
sentence is so startlingly or disturbingly inappropriate that it induces a sense of
shock2.

[20] This court is not entitled to simply make its own value judgment as to what
sentence it would have imposed unless it first finds that the trial court erred in its
approach or reasoning. The traditional ‘material misdirection ’ test remains the
standard for appellate interference, even in minimum sentence cases3.

[21] In the recent judgment of this division by Sher J 4 (with Le Grange J
concurring), he explained that an appellate court should only interfere with the
sentencing court’s value judgment if it is shown that the sentencing court erred in its
assessment i.e , if there was a material misdirection in identifying or weighing the
relevant circumstances . He explained that the function of the appellate court is
supervisory. It must respect the sentencing court’s value judgment unless it is shown
to be wrong due to a material misdirection. Only then is the appellate court entitled to
make its own value judgment as to whether substantial and compelling
circumstances exist. I am in agreement with this school of thought.

The grounds of appeal advanced on behalf of the appellant

[22] Mr Sebueng on behalf of the appellant submitted that the cumulative effect of
the factors justifies a deviation from the prescribed minimum sentence of life
imprisonment. He submitted that, the factors collectively, together with the pre -
sentencing report, support the appellant's justification for a deviation from the
prescribed minimum sentence of life imprisonment . He expressed that he would shy
away from ad vancing a narrative that the trial court misdirected itself but that this
court could consider the appellant’s circumstances and come to a different sentence
especially in the light of S v PB 2013 (2) SACR 533(SCA) which held that the

especially in the light of S v PB 2013 (2) SACR 533(SCA) which held that the
circumstances of offenders need not be exceptional in nature in order to be

2 See S v Malgas 2001 (2) SA 1222 and S v Dodo 2001 (1) SACR 594 (CC).
3 See S v Malgas 2001 (2) SA 1222 and S v Dodo 2001 (1) SACR 594 (CC), which were endorsed by
S v Bogaards 2013 (1) SACR 1 (CC ) and more recently, a judgment of Sher J in this division M.T v S
[2025] [ZAWCHC] 307 (25 July 2025) (WCC).
4 Sher J in M.T v S [ZAWCHC] 307 (25 July 2025) (WCC), a F ull Court of this Division (Sher J, Le
Grange concurring, Dickerson AJ dissenting ).

accepted. Mr Sebueng however, did not present support for how the appellant’s age
and his background (raised by a single mother and the passing of his mother in
2018) assist the appellant when engaging in this exercise.

[23] In addition, he relied on S v Rabie 1975 (4) SA 855 (AD ) in submitting that
courts should strive to show mercy towards offenders as courts are not there to just
punish but are there to unleash corrective punishment.

Arguments advanced by the respondent in opposition

[24] The respondent highlighted aggravating factors which it submits outweigh the
mitigating factors, namely, the continuous assault and degradation of the victim, the
ongoing psychological trauma and harm suffered by the victim and the extent of the
injuries. The respondent painted a picture that the appellant is a ‘chance-taker’ who
pushed boundaries with the victim until he got his way on th at fateful day . The
respondent submitted that the appellant took another ‘chance’ when he pleaded not
guilty, arguing that the victim consented to having sexual intercourse with him, only
to later advance ‘remorse’ and ‘taking responsibility ’ as factors to be taken into
account during sentencing proceedings . The respondent argued that the appellant
has been crafty. In 2018 he tried to apologize to the victim after he realized he had to
face the music . The respondent argued that the aforementioned indicates that the
appellant is like a wolf in sheep’s clothing and dangerous to society.

[25] The respondent highlighted that the trial court dealt with all the circumstances
relating to the appellant and came to the correct conclusion that no such
circumstances exist that could warrant a deviation from the prescribed minimum
sentence.

[26] The respondent emphasized the role o f the court hearing the appeal, that it
will only interfere with a sentence if trial court erred in its consideration of relevant
factors or the law relevant to sentencing; or if the trial court wrongly applied a legal

factors or the law relevant to sentencing; or if the trial court wrongly applied a legal
principle and imposed a ‘shockingly inappropriate’ sentence. It was argued that there
is no need for this court to interfere with the sentence of the trial court and that the
magistrate correctly exercised discretion, taking into account the proven facts, the

nature of the offences, the applicable minimum sentence legislation, the appellant’s
personal circumstances, and the injuries suffered by the victim, both physically and
psychologically.

Evaluation

[27] Having considered the totality of the record, the heads of argument and the
parties’ respective submissions, it is my respectful view that the appellant has not
made a proper case as prescribed by well-established principles which dictate the
instances in which this court may interfere with a sentence imposed by the trial court.
I am not persuaded that there are grounds for this court to interfere with the
sentence of the trial court. The appellant has not presented evidence of the trial
court’s errors or failures to consider relevant factors and over or under emphasize
certain factors or how the trial court erred in principle.

[28] Instead, Mr Sebueng conceded that it cannot be said that there is a
misdirection, let alone a material one, which points to a failure by the trial court to
consider relevant factors or that the sentence is so startlingly or disturbingly
inappropriate that it induces a sense of shock.

[29] In addition to this, I point out that t his court has no duty to strive to show
mercy towards the appellant as argued on behalf of the appellant, relying on S v
Rabie 1975 (4) SA 855 (AD).

[30] The record, demonstrates a well -reasoned judgment of the trial court and I
cannot fault the sentence imposed by that court. Furthermore, the submissions made
by both counsel in regard to this appeal do not demonstrate misdirection of the trial
court.

[31] The trial court meticulously considered whether the factors raised by the
appellant constitute substantial and compelling circumstances sufficient to deviate
from the prescribed minimum sentence for such serious offences. In argument, in
this court, the circumstances of the appellant were again in the spotlight but I am not

convinced that such circumstances are compelling and that there was an irregularity
in the trial court’s consideration of such circumstances.

[32] It goes without saying that I do not find the trial court’s sentence ‘shocking,
startling or disturbingly inappropriate.’

[33] The following order is made:

‘The appeal against the sentence of life imprisonment imposed on the two
counts of rape (counts 3 and 4) is dismissed.’


_____________________________
TR MPHEGO
ACTING JUDGE OF THE HIGH COURT

Cloete J (concurring)

_____________________________
JI CLOETE
JUDGE OF THE HIGH COURT


Appearances:

For the appellant : Adv M. Sebueng, Legal Aid, Cape Town

For the respondent : Adv E. Kortje, Directors of Public Prosecutions, Cape
Town