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

JUDGMENT

Not Reportable
Case No: A165/2024

In the matter between:

KHANYILE RAMBA Appellant

and

THE STATE Respondent

Coram: RALARALA, J (FRANCIS, J concurring)
Heard on: 13 June 2025
Delivered on: 20 August 2025

Summary: Criminal Appeal – premeditated murder - section 51(1) of the Criminal
Law Amendment Act 105 of 1997 – plea of guilty -section 112(2) of the Criminal
Procedure Act 51 of 1977 (the CPA) - formal admissions in terms of section 220 of
the CPA - conviction and sentence of life imprisonment confirmed.

ORDER


The appeal in respect of conviction and sentence is dismissed.


JUDGMENT


RALARALA, J

[1] The Appellant was charged in Hermanus Regional Court on the charges of
murder, rape and malicious damage to property. He pleaded guilty to the murder
charge and not guilty to the rape and malicious damage to property charges. The
State did not accept the plea proffered on the count of murder and same was instead
recorded as formal admissions in terms of sect ion 220 of the Criminal Procedure Act
51 of 1977 (“the CPA”). The State alleged that the commission of murder was
premeditated, as a result relied on section 51(1) of the Criminal Law Amendment Act
105 of 1997 (“the CLAA”).

[2] The allegation was that on or about 10 September 2021, the Appellant
unlawfully and intentionally killed S[...] M[...] by hitting her with a blunt object or a
hammer and committed acts of sexual penetration by inserting a blunt object or
hammer into h er vagina and/or anus without her consent. The third count is that on
the same date, the Appellant unlawfully and intentionally damaged a television set
and the property of Asonele Gqira with the intent to damage the property.

[3] The State adduced the ev idence of two witnesses in an endeavour to prove
that the murder was premeditated and the remainder of the charges. As already
alluded to, the Appellant pleaded guilty to the charge of murder read with the
provisions of section 51(2) of the CLAA as opposed to the provisions of section 51(1)

of the CLAA as formulated by the State. The Appellant in his plea stated that he
unlawfully and intentionally caused the death of S[...] M[...], who was his girlfriend at
the time. The Appellant admitted to hitting the deceased with a hammer.

[4] The Appellant admitted that on the evening of 10 September 2021, he
confronted the deceased because earlier that day, the deceased’s friend took his 4
cell phones and a wallet. The deceased and her friends assaulted him when he tried
to recover his possessions. He admitted that he and the deceased fought while in his
house, resulting in the door being damaged. He took a hammer and fixed the door.
While fixing the door, the deceased was shouting at the Appellant. The deceased hit
or slapped him on the back of his head. The deceased turned around and hit her
several times on her head and body, until she fell to the ground and left her lying
there until the next morning.

[5] He admitted to causing the death of the decea sed in the form of dolus
eventualis and admitted to the contents and correctness of the postmortem report.
The Appellant further admitted that the wounds as indicated on the postmortem
report, except for the wounds on the genitals, were inflicted by the Appellant and
such wounds caused the death of the deceased. Further, that the body of the
deceased sustained no further injuries during the transportation thereof until the
finalisation of the postmortem examination on 15 September 2021.

[6] The State in an endeavour to adduce evidence pointing towards premeditated
murder, led the evidence of two state witnesses: Dr. Louise Marie Kruger and Zine
Mankankela. Dr. Kruger is the pathologist who conducted the postmortem
examination on the deceased and compiled a report recording her observations a nd
findings. Dr. Kruger testified that while performing the autopsy on the body of the
deceased, she found that the body had widespread non-patterned, non-specific blunt

deceased, she found that the body had widespread non-patterned, non-specific blunt
trauma to the head, body and extremities. She found a traumatic brain injury with
slowly progressing brain haemorrhage, and significant trauma to the vulva and the
vaginal canal.

[7] Dr. Kruger’s findings were that the cause of death was consistent with
traumatic brain injury. No injury with patterned appearance of a hammer could be

found on the deceased, but only blunt force injuries. According to the doctor, she
took photographs of these injuries: on the left arm was a 60 by 70 -millimeter area of
diffuse contusion or bruising with soft tissue swelling and scattered abrasions or
grazes to the top of the hand. The right arm presented with 210 by 20-millimeter area
of abrasion or graze or scratch marks to the inner surface of the right upper arm. The
inside of the elbow area had an 80 by 90 -millimeter area of parallel running linear
abrasions. She also noted a 60 by 60 -millimeter area of defused soft tissue swelling
contusion or bruising and scattered abrasions or grazes to the top surface of the
right hand and there was also a 10 by 10-millimeter-deep abrasion or graze to the
palm of the right hand.

[8] Dr. Kruger dispelled the notion that the type of injuries that were found or
observed in the deceased’s genitalia would be compatible with consensual sexual
penetration. She stressed that the nature of the injuries was indicative of resistance
from the victim. She tilted towards a hammer as to what object would have been the
cause of such injuries based on the severity of the injuries sustained. Her opinion
was that all the injuries would have been inflicted in less than 24 hours and at the
same time.

[9] Zine Mankankela testified that on the night in question, she was present and
when the Appellant came to Asonele’s house to fetch his possessions, he slapped
the deceased with an open hand causing her to fall and hit the back of her head
against the TV stand, resulting in her fainting. While in that state, the Appellant
thereafter dragged t he deceased out of the dwelling by her feet. The Appellant was
asked by the witness to desist from this, and he did not heed that request, resulting
in the witness pulling the deceased by her arm towards her. The deceased regained
consciousness at that stage.

[10] The Appellant left Asonele’s house and returned on two separate occasions,

[10] The Appellant left Asonele’s house and returned on two separate occasions,
the first time he snatched Zine’s cell phone and left and the second time he kicked
the door and had a hammer in his hand. He invited the witness to follow him in order
to recover her cell phone which she refused. When the witness declined his invitation
informing him that she did not know what his intentions were, the Appellant started

crying after placin g the hammer on the ground. The Appellant was chased away by
Sinovuyo.

[11] She learnt the next morning about the passing of the deceased. During cross
examination, it surfaced that there were discrepancies between Zine’s viva voce
evidence and the statement she made to the police after the incident occurred. The
statement omitted the incident of the Appellant assaulting the deceased with an open
hand and the TV being damaged as a result of him assaulting the witness. Zine
attributed the omission to the state of shock she was in when she gave the
statement to the investigating officer.

[12] The Appellant testified in his defence, to the effect that he went to Asonele’ s
house and found the deceased, Zine Mankankela, and Asonele with two male
persons. Zine took his 4 cell phones from his pockets, including his wallet. She
informed him he was drunk, and she was going to hand them over to the deceased
for safekeeping. He grabbed the items as Zine was handing them to the deceased,
the items fell all over the floor. The Appellant became angry, and they shouted at
him. The Appellant stepped outside, and he hoped that the deceased would come
outside and hand over his property to him. The Appellant cried at this stage and
asked a neighbour to go fetch his property from Zine and this effort proved to be
unsuccessful.

[13] He returned to Asonele’s house despite the verbal abuse directed at him. The
owner of the house attempted to burn him using an electrical two plate stove. He
apologised. The Appellant was unable to recover his property and the fact that the
deceased was not making an effort to recover his property angered him. He slapped
her with an open hand once on her face. The deceased decided that they rather
leave as the Appellant was angry. They continued to argue on their way to his house
as he wanted to go back to Asonele’s house to recover his property.

[14] The hinges on the door to the Appellant’s house broke, as a result of how

[14] The hinges on the door to the Appellant’s house broke, as a result of how
aggressively he opened it. He was angry. He fetched the hammer, intending to fix
the door. However, he did not do so as he was still an gry. Instead, he left the house,
carrying the hammer, and went to Asonele’s house to try and recover his belongings,

leaving the deceased sitting in the house. At Asonele’s house he only recovered his
Capitec bank card and Zine cried, acknowledging that sh e started the whole thing
when she took the Appellant’s property. The Appellant took Zine’s cell phone and
left.

[15] When he arrived at home, he sat next to the deceased and had a
conversation with her. While talking, he decided to fix the door. The Appe llant stood
up to fix the door, then the deceased slapped him from behind with an open hand.
This angered the Appellant, and he turned and hit the deceased with the hammer
three times on the head. The deceased did not bleed. She fell and he threw the
hammer on the ground.

[16] He tried to lift her, and she refused and told him to leave her lying on the floor.
He continued to convince her to come to bed but the deceased refused his invitation.
They, however, continued engaging in conversation about their drinking arrangement
over the weekends. The Appellant then fell asleep.

[17] The Appellant woke up when someone knocked at the door in the morning.
According to him, the deceased was still lying there on the floor, but he did not check
if there was anything wrong with her. After attending to the person who was at the
door, he then closed the door and went back to bed.

[18] Later, he w as once again woken up by a knock at the door. The Appellant
realized that the deceased was still lying on the floor, and he tried to wake her up,
without success. He left the house in shock to find out what he should do in the
circumstances. He returned to his house in the company certain men with whom he
was drinking the previous night. He learnt that the deceased had died. He was later
advised to inform the police.

GROUNDS FOR APPEAL

[19] The grounds of appeal as set out in the notice of appeal as regards conviction
may be summarised as follows:

19.1 The trial court erred and misdirected itself in finding that the murder
was premeditated, having reached this finding based on the Appellant’s
actions.
19.2 Thus, the trial court erred in finding that section 51(1) of the CLAA finds
application instead of section 51(2) thereof.
19.3 The trial court erred in finding that the state proved its case beyond
reasonable doubt on the offence of murder read with section 51(1) of
the CLAA.

[20] Regarding the sentence imposed, the grounds of appeal are as follows:

20.1 The trial court paid insufficient regard to the Appellant’s personal
circumstances, particularly his age.
20.2 The trial court erred in not attaching adequate weight to the time the
Appellant has been incarcerated while awaiting trial, which was a
period of two (2) years and three (3) months.
20.3 The trial court erred in not sufficiently paying consideratio n to the fact
that the Appellant is a first offender, pleaded guilty, demonstrated
remorse, and took full responsibility for his actions.
20.4 The role played by the use of alcohol was not given adequate
consideration by the trial court.
20.5 The sentence imposed by the trial court was excessively harsh and
shockingly inappropriate and over -emphasised the interests of society
and retribution.
20.6 The trial court erred in not finding substantial and compelling
circumstances justifying the imposition of a le sser sentence than the
prescribed minimum sentence of life imprisonment.

[21] The evidence of Zine Mankankela and that of the Appellant, particularly the
contents of the statement in terms of section 112(2) of the CPA, which contents were
subsequently recorded as formal admissions in terms of section 220 of the CPA,
demonstrates that the Appellant had prior to ki lling the deceased, assaulted and
fought with her. It was further the Appellant’s evidence that he was angry, or
angered, by the fact that the deceased made no effort to recover his property from

her friends, which was an expectation he had. This is prior to the fight the two of
them had on their way to his house which culminated in the breaking of the door to
his house.

[22] As stated by the court in S v Kekana [2014] ZA SCA 158 para 13,
premeditation does not necessarily entail that the appellant should have thought or
planned his actions long before carrying out his plan. Even a few minutes may be
sufficient.

[23] Clearly there was a thought process involved in the Appellant’s actions
leading to the killing of his girlfriend. This is fortified by his ve rsion of how he dealt
the blows on the deceased. The Appellant’s own version indicates that he
considered which part of the weapon he should use to inflict the injuries on the
deceased, initially focused the impact on the head, injuring the brain, and then the
body of the deceased. His assault, which must have been over a period of time given
the nature of the deceased’s injuries, was calculated to cause maximum harm. It was
not an instantaneous act of retaliation. Dr. Coetzee’s description of the injuries and
of the object possibly used in the assault are consistent with some of the events
described by the Appellant. Dr. Coetzee noted, and recorded, brain injuries, bodily
injuries and significant trauma in the genitals in the form of multiple deep mucosal
lacerations which extended into the lower third of the vaginal canal including the
anus and the rectal canal.

[24] Significantly, regarding the latter mentioned injuries, Dr Coetzee expressed
the opinion that they were indicative of resistance on the part of the deceased.
Crucially, the evidence of Dr. Coetzee is that all the injuries recorded in the
postmortem report were inflicted in the same period before the deceased died,
inclusive of those inflicted to her genitals. Dr. Coetzee includes a hammer, the
murder weapon, as the object used to inflict the injuries observed in the genitals of
the deceased.

the deceased.

[25] In my view, the conspectus of the evidence considered by the trial court
indicates that it took all relevant factors into account, carefully we ighing up of the
Appellant’s actions against the admitted and/or proved facts, when concluding that

the murder was not committed on impulse or under unexpected circumstances.
There was a thought process involved in the Appellant’s actions leading to the
ultimate killing of the deceased.

[26] While Zine Mankankela is a single witness in respect of the incident at
Asonele’s house, her evidence in respect of the Appellant’s conduct was evaluated
by the trial court against the totality of all the evidence. In S v Teixeria 1980 (3) SA
755 (A) at 761, the court remarked:

“. . . in evaluating the evidence of a single witness, a final evaluation can
rarely, if ever, be made without considering whether such evidence is
consistent with the probabilities.”

While in R v Sauls and others 1981 (3) SA 172 (A) at 180 F-H the SCA remarked:

“There is no rule of thumb, test or formula to apply when it comes to a
consideration of the credibility of a single witness. The trial judge will way his
evidence, will consider its merits and demerits and having done so, will decide
whether it is trustwor thy and whether despite the fact that there are
shortcomings or defects of contradictions in the testimony, he is satisfied that
the truth has been told. . . It has been said more than once that the exercise
of caution must not be allowed to displace the exercise of common sense.”

The evidence of Ms Mankankela was supported by other facts placed before the trial
court; there is certainly nothing before this court to suggest that Ms Mankankela’s
evidence was unreliable or inconsistent with the proved facts.

[27] This brings me to the sentence imposed by the trial court. The approach to
minimum sentences ordained by the legislative as set out in S v Malgas 2001 (1)
SACR 469 SCA is that specified sentences are not to be departed from lightly or for
“flimsy reasons”; and that matters such as undue sympathy or aversion to
imprisonment of offenders are to be excluded. The trial court found that there were
no substantial and compelling circumstances justifying the imposition of a lesser

no substantial and compelling circumstances justifying the imposition of a lesser
sentence than life imprisonment.

[28] That said, the Supreme Court of Appeal in S v Swart 2004 (2) SACR 370
(SCA) at para 17 – stated that it did not intend to suggest that the quality of mercy,
an intrinsic element of civilized justice should be altogether overlooked, but rather to
emphasise that retribution and deterrence will come to the fore in relation to certain
crimes. The trial court had regard to, and cumulatively assessed, the Appellant’s
personal circumstances and found no facts which were either substantial or
compelling to the benefit of the Appellant, when objectively evaluated against the
manner in which the crime was committed.

[29] It is trite that sentencing is a matter pre -eminently in the discretion of the trial
court and the appeal court cannot, in the absence of material misdirection by the
former court, approach the question of sentence as if it was the trial court and
substitute the sentence imposed simply because it prefers some other sentence. If it
acted in this manner, the appeal court would be usurping the trial court’s sentencing
discretion. A misdirection is material if the trial court has not taken cognizance of
factors that it should have or under emphasized the personal circumstances of a
convicted person in relation to other factors to be considered (see, S v Brand 1998
(1) SACR 296 (C) at 202 e-j).

[30] In making the assessment of whether compelling and substantial factors
existed to permit the deviation from the minimum sentence of life imprisonment, the
trial court had regard to the age of the Appellant; the fact that he was 26 years old at
the time; the fact that he stood as a first offender before the trial court ; the fact that
alcohol played a role during the commission of the crime; and, that he pleaded guilty
to the charge. Regarding his plea of guilty and assumption of responsibility for his
actions and expression of remorse, the court was not convinced that this was
genuine contrition. The court reasoned that it is not convinced that the Appellant took

genuine contrition. The court reasoned that it is not convinced that the Appellant took
full responsibility for his actions. The evidence reveals that the Appellant was rather
selective in what he took responsibility for regarding his actions. Firstly, his plea
explanation is devoid of the harrowing detail presented by D r. Coetzee in her
evidence on the injuries to the deceased and the state of the deceased’s clothing.
Secondly, his viva voce evidence proved to be contrary in material respects to his
plea explanation. In his plea explanation, the Appellant states that he and the

deceased were arguing and fighting on the way to his house and the door to his
house was broken as a result. His viva voce evidence in this regard differs and he
testified that the door broke as a result of the aggressive manner he opened it.
Essentially, in his plea explanation, the Appellant trivialized his conduct and the
developments leading up to him killing his girlfriend.

[31] The evidence indicates that the offence which the Appellant committed, and
was convicted of, was a heinous crime both in its nature and by reason of the policy
indications which are set out in the Criminal Law of Amendment Act 105 of 1997
which the court must consider. The Appellant brutally murdered his girlfriend, and the
gravity and callousness of this offence cannot be understated.

[32] Counsel for the Appellant strenuously contended that the trial court
misdirected itself in not finding that the Appellant demonstrated remorse while he
pleaded guilty. However, in my view, no genuine remorse or contrition wa s displayed
by the Appellant. In S v Matyityi 2011 (3) SACR 40 (SCA) at 47 a -b Ponnan JA
observed as follows:

“There is a chasm between regret and remorse. Many accused persons might
well regret their conduct, but that does not without more translate to g enuine
remorse. Remorse is gnawing pain of conscience for the plight of another,
thus genuine contrition can only come from the appreciation and
acknowledgement of the extent of one’s error. In order for remorse to be a
valid consideration, the penitence must be sincere and the accused must take
the court fully into his or her confidence. Until, and unless, that happens, the
genuineness of contrition alleged to exist, cannot be determined.”

[33] It is so that the Appellant was not forthcoming in his plea w hen it came to the
true facts. He furnished the court with a watered -down version that he later during
his testimony could not sustain. In his plea, he stated that the deceased and her

his testimony could not sustain. In his plea, he stated that the deceased and her
friends had assaulted him at Asonele’s house, but curiously this aspect does not
form part of his viva voce evidence. He further introduced new evidence that was not
canvassed with the state witnesses nor included in his plea explanation.

[34] The Appellant further attempted to impugn the sentence imposed by the trial
court on the basis that it failed to consider the period of incarceration while awaiting
trial. The record reflects that the Appellant had been incarcerated upon arrest on
11 September 2021 to the date of finalisation of the case on 8 December 2023.
Effectively, he has spent 2 years, 2 months and 3 weeks incarcerated. The period
spent incarcerated is a factor to be taken into account in the assessment of whether
there exist substantial and compelling factors justifying deviation from the prescribed
minimum senten ce. There is no rule as to how the determination regarding the
weight to be attached to the said period. Each case must be decided having regard
to all circumstances (see, DPP v Gcwala (295/13) [2014] ZASCA 44 (31 March
2014)). In any event, in my view, the omission by the trial court to expressly refer to
this issue does not, against the totality of the evidence considered in determining the
sentence imposed, amount to a material misdirection that would vitiate the sentence
imposed.

ORDER

[35] In the circumstances, I would propose that the appeal in respect of conviction
and sentence be dismissed.


________________________
RALARALA J
JUDGE OF THE HIGH COURT, WESTERN CAPE DIVISION

I concur
and it is so ordered

________________________
FRANCIS J
JUDGE OF THE HIGH COURT, WESTERN CAPE DIVISION


Appearances

For Appellant: A De Jongh
Instructed by: Legal Aid SA

For the State: J Seethal
Instructed by: Office of the Director of Public Prosecutions: Western Cape