In the matter between
NICO DAMBUZA
and
THE STATE
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: Yes
Appeal No: A 16/2025
APPELLANT
RESPONDENT
Neutral citation: Dambuza v S (A16/2025) [2025] ZAFSHC 224 (31 July 2025)
Coram:
Heard:
Daffue J et Parks AJ
28 July 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and release to SAFLII. The date for hand down is deemed to be 31
July 2025 at 16h00.
Summary: Sentence - whether there are substantial and compelling circumstances
justifying a lesser sentence than life imprisonment in respect of rape (count 1) - whether
Regional Court had jurisdiction to impose life imprisonment in respect of count 2: rape
where charge sheet referred to Part Ill of Schedule 2 of Act 105 of 1997 - prescribed
minimum sentence at the time was 10 years' imprisonment - on appeal: life
imprisonment confirmed in respect of count 1 -sentence in respect of count 2 set aside
and 15 years' imprisonment imposed.
2
ORDER
1 The late filing of the notice of appeal is condoned.
2 The appeal in respect of the sentence imposed in count 1 is dismissed.
3 The appeal in respect of the sentence imposed in count 2 is upheld.
4 The sentence of life imprisonment in respect of count 2 is set aside and replaced with
the following:
'1. the accused is sentenced to 15 (fifteen) years' imprisonment;
2. the sentence is antedated to 26 November 2015.'
JUDGMENT
Parks AJ (Daffue J concurring)
[1] The appellant was convicted in the Regional Court sitting at Koffiefontein on two
counts of rape. On 26 November 2015 he was sentenced to life imprisonment in respect of
each count.
[2] The appellant enjoyed an automatic right to appeal, having been sentenced to life
imprisonment. His notice of appeal, encapsulating an application for condonation and his
founding affidavit, drafted on his behalf by the Bloemfontein Justice Centre, was filed on 29
February 2024, nearly 10 (ten) years after being convicted and sentenced. I considered the
scant reasons for condonation which are really unpersuasive. However, the merits of the
appeal shall be considered.
[3] The appellant only appeals against the sentences imposed on the following grounds :
a) the court a quo over-emphasised the seriousness of the crime, particularly insofar as
the complainant in count 1 did not sustain serious physical injuries;
b) the appellant was kept in custody for more than three years;
c) the appellant's personal circumstances, considered with the factors mentioned supra,
constitute substantial and compelling circumstances which justify a deviation from the
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applicable minimum sentence;
d) the court a quo erred when it imposed life imprisonment in respect of count 2 as it
lacked jurisdiction to do so.
[4] The respondent opposed the appeal in respect of count 1, but not in respect of count
2. The appellant's counsel submitted that the sentence in respect of count 2 ought to be
reduced to 15 (fifteen) years' imprisonment. Although the respondent's counsel submitted in
his heads of argument that the sentence should be reduced to 10 (ten) years' imprisonment
(the prescribed minimum sentence for rape at the time), he submitted during oral argument
that a more appropriate sentence would be 15 (fifteen) years' imprisonment, as submitted by
appellant's counsel.
[5] It is trite that an appeal court will in general interfere only if the trial court misdirected
itself materially, as expressed in S v Malgas1 where the court stated the following:
'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.'
[6] The appellant's counsel highlighted the following dictum in S v PB 2 in submitting that
a different approach must be followed by a court of appeal when dealing with the trial court's
finding that no substantial and compelling circumstances existed, than merely whether a
material misdirection has been committed:
'What then is the correct approach by a court on appeal against a sentence imposed in terms of the
Act? Can the appellate court interfere with such a sentence imposed by the trial court's exercising its
discretion properly, simply because it is not the sentence which it would have imposed or that it finds
shocking? The approach to an appeal on sentence imposed in terms of the Act should, in my view,
be different to an approach to other sentences imposed under the ordinary sentencing regime. This,
in my view, is so because the minimum sentences to be imposed are ordained by the Act. They cannot
be departed from lightly or for flimsy reasons. It follows therefore that a proper enquiry on appeal is
whether the facts which were considered by the sentencing court are substantial and compelling, or
not.'
1 S v Ma/gas 2001 (1) SACR 469 (SCA) para 12.
2 Bailey v S (454/2011) (2012} ZASCA 154 (1 October 2012); S v PB 2013 (2) SACR 533 SCA para 20.
4
Counsel's argument is sound, but the dictum relied upon goes much further, ie that courts
are warned not to depart from prescribed minimum sentences 'for flimsy reasons'. More about
this later.
[7] The first ground of appeal, ie that the court a quo over-emphasized the seriousness of
the crime in that the complainant in count 1 did not sustain serious physical injuries is without
merit. Section 51(3)(aA) of the Criminal Law Amendment Act 105 of 1997 (the Minimum
Sentences Act) reads as follows :
'(aA) When imposing a sentence in respect of the offence of rape the following shall not constitute
substantial and compelling circumstances justifying the imposition of a lesser sentence:
(i) The complainant's previous sexual history;
(ii) an apparent lack of physical injury to the complainant;
(iii) an accused person's cultural or religious beliefs about rape; or
(iv) any relationship between the accused person and the complainant prior to the offence being
committed.'
[8] Notwithstanding the peremptory meaning of the word 'shall', the Supreme Court of
Appeal reminded us in S v SMM3 that a 'proper interpretation of the provision does not
preclude a court sentencing for rape to take into consideration the fact that the rape victim
has not suffered serious or permanent physical injuries, along with other relevant factors, to
arrive at a just and proportionate sentence.' In casu, the undisputed medical evidence
showed tears in the genitalia of both complainants. Furthermore, I am of the view that the
condition of the complainant in count 1, being pregnant at the time of the incident, is a material
factor to be considered. After the appellant had raped her by inserting his penis into her
vagina, he penetrated her vagina with four fingers and threatened to kill the foetus. As
indicated in the victim impact statement, she blamed herself for the occurrence and even
distanced herself from the child that she has with the appellant. Clearly, this shows how the
incident has affected her emotionally.
incident has affected her emotionally.
[9] The second ground relates to the appellant's period of detention awaiting trial. It was
not three years as submitted, but just over two years. The appellant was sentenced in 2015
and not 2017 as submitted. In Radebe v S4 Lewis JA held that the test is not whether the
3 S v SMM [2013] ZASCA 56; 2013 (2) SACR 292 (SCA) para 26.
4 Radebe v S [2013) ZASCA 31 para 13.
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period of detention on its own constitutes a substantial or compelling circumstance, but
whether the effective sentence proposed is proportionate to the crime or crimes committed,
ie whether the sentence in all the circumstances, including the period spent in detention prior
to conviction and sentencing, is a just one.
[1 O] The third ground of appeal deals with the appellant's personal circumstances. I shall
deal with this later herein.
[11] Appellant's counsel submitted that the court a quo incorrectly sentenced the accused
to life imprisonment in respect of count 2. She submitted that the court a quo could impose a
maximum sentence of 15 (fifteen) years' imprisonment and that this would be an appropriate
sentence. She relied on S v Ndlovu5 quoting from paragraph 46:
'In the light of this, I can do naught but conclude, inexorably, that the regional court did not have
jurisdiction to impose life imprisonment in terms of s 51 (1) of the Minimum Sentencing Act. Mr Ndlovu
was convicted of rape, read with s 51(2); accordingly, the regional court was required in terms of s
51 (2) to impose a minimum sentence of 10 years (as he was treated as a first offender). The regional
court's jurisdiction was limited in terms of s 51 (2) to imposing a maximum sentence of 15 years.'
[12] The State relied, in the charge sheet, on Part Ill of Schedule 2 which provided at the
time for a prescribed minimum sentence of 10 (ten) years in respect of first offenders, subject
thereto that the Regional Court might impose a maximum sentence of 15 (fifteen) years in
such case. The court a quo decided to impose life imprisonment in respect of count 2 in the
following circumstances. It convicted the appellant on two counts of rape, committed a week
apart, on two siblings. During argument before judgment the prosecutor submitted in
Afrikaans - the language used by him throughout the proceedings as all witnesses including
the accused testified in Afrikaans - that Part Ill of Schedule 2 was applicable, but upon
the accused testified in Afrikaans - that Part Ill of Schedule 2 was applicable, but upon
discussion with the learned regional magistrate and as he insisted, the prosecutor changed
his mind and agreed with him. It is not certain whether Mr Magabe , who appeared for the
appellant in the court a quo, understood the aforesaid discussion, but in his address in English
to the court a quo - he throughout the hearing conducted the proceedings in English - he
never mentioned this aspect and was also never asked for his submission in this regard. The
learned regional magistrate concluded his judgment by referring to the conviction in respect
5 Ndlovu v S (CCT17 4/16) [2017] ZACC 19 (15 June 2017); S v Ndlovu 2017 (2) SACR 305 (CC) para 46.
6
of count 2 as a Part Ill of Schedule 2 offence, but immediately thereafter held that the
conviction on count 1 must be taken into consideration and therefore, the conviction on count
2 should automatically fall within the ambit of Part I of Schedule 2, the effect being that the
prescribed minimum sentence of 10 (ten) years' imprisonment became a prescribed minimum
sentence of life imprisonment.
[13] It became clear during sentencing that the court a quo relied upon the Supreme Court
of Appeal judgment in S v Ndlovu6 in order to sentence the appellant in respect of count 2 to
life imprisonment. In all fairness to the court a quo who relied on this judgment, it was set
aside by the Constitutional Court7 and consequently, the Regional Court's sentence in that
matter was substituted after imposition of sentence by the court a quo on 26 November 2015.
In S v Khoza and another8 the Supreme Court of Appeal held that, as a general rule, fair-trial
rights require that an accused person should be informed at the outset of the trial of the
provisions of the Minimum Sentences Act (or other provisions relating to an increased
sentencing regime) which the State intends to rely upon or which are applicable. The
appellant in casu should not have heard for the first time at judgment stage that he faced life
imprisonment in respect of count 2.
[14) Section 51 (1) of the Minimum Sentences Act provides that a regional court or a high
court shall sentence a person it has convicted of an offence referred to in Part I of Schedule
2 to imprisonment for life. Part I (a)(iii)(bb) of Schedule 2 specifies the circumstances in which
the offence of rape will attract the sentence of life imprisonment. In terms of that provision,
the sentence of life imprisonment becomes applicable where rape is committed 'by the
accused who ...
(bb) has been convicted by the trial court of two or more offences of rape or offences of rape
and compelled rape, irrespective of-
(aaa) .. .
(bbb) .. .
and compelled rape, irrespective of-
(aaa) .. .
(bbb) .. .
(ccc) whether the accused has been sentenced in respect of any such offence of which the
accused has so been convicted;'.
6 S v Nd/ovu [2014] ZASCA 149.
7 See footnote 5.
8 S v Khoza and Another[2018] ZASCA 133; 2019 (1) SACR 251 (SCA) paras 11-14; See also S v Livanje
[2019] ZASCA 126; 2020 (2) SACR 451 (SCA) paras 21, 23 and 30; Mthanti v The State (Case no 859/2022)
[2024) ZASCA 15.
7
(15] When I consider the cases mentioned supra, namely Ndlovu v The State, S v Khoza
and another, S v Livanje and Mthanti v The State, I find that the court a quo has misdirected
itself when the appellant was sentenced to life imprisonment in respect of count 2. I repeat
that the appellant was not informed at the onset of the proceedings, or at any time before the
closure of his case, that he might face a sentence of life imprisonment upon conviction, nor
was he charged with an offence that is listed in Part I of Schedule 2 of the Minimum Sentences
Act that warrants the imposition of life imprisonment.
(16] Both counsel for the State and the appellant were in agreement that the sentence of
life imprisonment in respect of count 2 should be set aside. They eventually agreed during
oral argument that this court should impose a sentence of 15 (fifteen) years' imprisonment.
Their concessions were well made and I am in agreement therewith. As was the case with
Mr Ndlovu in the aforesaid judgment, the appellant's right to a fair trial was infringed when,
after he had been charged with rape read with one minimum sentencing provision, namely
s 51 (2) read with Part Ill of Schedule 2, he was sentenced under a different, harsher,
minimum sentencing provision, namely s 51 (1) read with Part I of the same Schedule.
[17] In S v C9 the court held the following regarding rape offences:
'Rape is regarded by society as one of the most heinous of crimes, and rightly so. A rapist does not
murder his victim - he murders her self-respect and destroys her feeling of physical and mental
integrity and security. His monstrous deed often haunts his victim and subjects her to mental torment
for the rest of her life -a fate often worse than loss of life. Society demands protection in the form of
heavy and deterrent sentences from the courts against such atrocious crimes.'
(18] The Supreme Court of Appeal held in S v Chapman 10 in 1997, which is more than 25
years ago:
years ago:
'Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of
the privacy, the dignity and the person of the victim ...
The Courts are under a duty to send a clear message to the accused, to the other potential rapists
and to the community: We are determined to protect the equality, dignity and freedom of all women,
and we shall show no mercy to those who seek to invade those rights.'
9 S v C 1996 (2) SACR 181 (CPD).
10 S v Chapman 1997 (2) SACR 3 (SCA) at 5 b-e.
8
[19] Mathopo AJ , reiterated in S v Tshabalala and another11 the pandemic involving women
and children, dealing particularly with rape, as follows:
'This scourge has reached alarming proportions in our country. Joint efforts by the courts, society and
law-enforcement agencies are required to curb this pandemic. This court would be failing in its duty if
it does not send out a clear and unequivocal pronouncement that the South African judiciary is
committed to developing and implementing sound and robust legal principles that advance the fight
against gender-based violence in order to safeguard the constitutional values of equality, human
dignity and safety and security.'
[20] Mocumie JA said the following in Mai/a v The State:12
'Rape of women and children is rampant in South Africa. It has reached alarming proportions despite
the heavy sentences that courts impose. South Africa has one of the highest rape statistics in the
world, even higher than some countries at war. The country's annual police crime statistics confirm
this: in 2019/2020, there were 42 289 rapes reported as well as 7 7 49 sexual assaults. This translates
into about 115 rapes per day.'13
The learned justice of appeal reiterated that courts should, through consistent sentencing of
offenders who commit gender-based violence against women and children, not retreat when
duty calls to impose appropriate sentences, including prescribed minimum sentences.
[21] The appellant committed a brutal and barbaric rape on his ex-girlfriend and the mother
of his child. He not only tied her to a tree, but raped her twice as found by the court a quo. As
if to show his arrogance and disrespect for women in general and the complainant in count
1, he devised a plan and raped her sister a week later. The short space of time within which
the appellant has committed the respective offences shows that he has no regard for other
people's rights. He has shown no remorse and violated the victims most horrendously. Both
people's rights. He has shown no remorse and violated the victims most horrendously. Both
complainants sustained not only physical, but also gynaecological injuries. Initially he denied
sexual intercourse with any of the two complainants, but changed his story when the DNA
results were obtained. Bearing in mind the seriousness of the offences, it is required that the
elements of retribution and deterrence should come to the fore and that the rehabilitation of
11 Tshabalala v S; Ntuli v S (CCT323/18; CCT69/19) [2019] ZACC 48 (11 December 2019); S v Tshabalala
and another 2020 (2) SACR 38 (CC) para 63.
12 Mai/a v The State (2023] ZASCA 3 (23 January 2023) para 57.
13 The court relied on statistics by Amanda Gouws 'Rape is endemic in South Africa. Why the ANC
government keeps missing the mark' 9 August 2022, Mail & Guardian, https://mg.co.za/opinion/2022-08-09-
rape-is-endemic-in-south-africa-why-the-anc-government-keeps-missing-the-mark/.
9
the appellant should be accorded a smaller role as emphasised by the Supreme Court of
Appeal in S v Kekana . 14
[22] The appellant's personal circumstances are not out of the ordinary. He was 23 years
old when sentenced, unmarried, a first offender and employed as a farm labourer. He is the
father of a four-year old child who is in the custody of the biological mother who he has raped.
He has been in custody awaiting trial from shortly after commission of the offences until
sentenced on 26 November 2015. His highest scholastic qualification is standard 3. When
his counsel was asked to tabulate what she regarded as substantial and compelling
circumstances, she could not add to the above. The appellant's personal circumstances shall
bow to the interests of society. I am satisfied that these factors, either individually or
cumulatively, do not represent substantial and compelling circumstances to allow this court
to deviate from the prescribed minimum sentences. Furthermore, the minimum sentence of
10 (ten) years in respect of count 2 should be increased to 15 (fifteen) years, the maximum
that the court a quo could have imposed at the time.
ORDER
[23} The following order is issued:
1 The late filing of the notice of appeal is condoned.
2 The appeal in respect of the sentence imposed in count 1 is dismissed.
3 The appeal in respect of the sentence imposed in count 2 is upheld.
4 The sentence of life imprisonment in respect of count 2 is set aside and replaced with
the following:
'1. the accused is sentenced to 15 (fifteen) years' imprisonment;
2. the sentence is antedated to 26 November 2015.'
I concur and it is so ordered.
..... --C PARKSAJ
~
JP, F E J
14 Kekana v S (37/2018) [2018) ZASCA 148 (31 October 2018); S v Kekana 2019 (1) SACR 1 (SCA) para 39.
Appearances
For the Appellant:
For the Respondent:
S Kruger
Legal Aid South Africa
M Strauss
Director of Public Prosecutions
Bloemfontein
10