IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
(CIRCUIT COURT, EAST LONDON)
CASE NO.: CC13/2025
Reportable YES/NO
In the matter between:
THE STATE
versus
VUSUMZIDUKUMBANA ACCUSED
________________________________________________________________
SENTENCE
________________________________________________________________
Cengani-Mbakaza AJ
[1] On 31 July 2025, this court convicted the accused on the following charges:
Count 1: Kidnapping.
Count 2: Rape in contravention of Section 3 of the Criminal Law, (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, read with Section
51(1), Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(as amended).
[2] The common law principles govern ing sentencing are well established. In
determining an appropriate sentence, the court must consider a broad range of
factors. In sentencing, the triad approach, as encapsulated in Zinn1, is significant
because it considers the nature and seriousness of t he crime, the personal
circumstances of the offender, as well as interests of society.
[3] In a democratic society, the rights of the victims are integral to the criminal
justice system, reinforced by the Constitution’s promotion of equality before the l aw
and equal protection under the law. Gender -based violence, which has become a
scourge in our communities, undermines the realization of all rights enshrined in the
Bill of Rights. However, there is reason for hope, as our courts have endorsed the
systematic approach adopted by the legislature to combat this scourge. As Mr
Nomlala for the defence correctly pointed out, the strides and inroads made by the
legislature and our courts underscore the prospect that these violent crimes may
become a thing of the past in the near future.
[4] In cases where the victim was raped multiple times and suffered infliction of
grievous bodily harm, as in the present case, the minimum sentence is life
imprisonment. This is further exacerbated by the fact that the parties were in a
domestic relationship and the offence of rape clearly demonstrates elements of
abuse.
[5] However, the applicability of imprisonment for life does not undermine the
court’s discretion in sentencing, as it may deviate from the prescribed minimum
sentence where substantial and compelling circumstances exist.
[6] The principles of punishment serve as an important guide in determining the
importance of individual deterrence versus general deterrence during sentencing.
Moreover, the court must consider the principle of retribution, which aims to prevent
wrongdoing. Equally important is the element of rehabilitation, which should be given
1 S v Zinn 1969 (2) SA 537 A.
due consideration. Therefore, checks and balances are essential at the sentencing
stage.
[7] There is a plethora of cases that frown upon violent crimes including rape,
viewing them in a more serious light. 2 These long line of cases upholds the principle
that the Constitution, particularly the rights to freedom of movement, dignity, and
privacy, applies to every citizen.
[8] In instances where there is a clear violation, like in the present matter, the
limitation clause cannot be justified. Moreover, there is no doubt that the complainant
suffered physical, genital, and emotional trauma. The physical in juries sustained by
the complainant, as described by her and later documented by the forensic nurse
stand to be repeated even at this stage. The complainant suffered the laceration on
the upper lip with bleeding, bleeding laceration and bruises on the left eye, abrasion
on the left cheek, abrasion on the neck due to strangulation, bruising on the breast,
redness and swelling on the nose as well as swollen middle finger.
[9] The forensic nurse further noted the following gynaecological injuries: the
hymen had multiple healed tears at 3, 6, and 9 o’clock. Despite the fact that there
were no fresh injuries in the complainant’s vagina, she noted multiple injuries in the
anal area. There was redness of the anal orifice with a laceration at 12 o’clock.
Furthermore, there were lacerations at 12 o’clock of the peri-anal area.
[10] The ordeal led to the complainant being hospitalized for six months for
psychological treatment. Given the duration of the incident and the intermittent fights,
one can only imagine the kind of anxiety she endured. The crimes are aggravated by
the fact that the complainant had to escape and leave her home, a place where her
roots and family bonds are.
2 S v C 1996 (2) SACR 181 (C) at 186 e-f
‘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. Serial rapists and murderers are regarded
by society as inherently evil beings. They are the most feared and loathed criminals in our
community. Soc iety demands protection in the form of heavy and deterrent sentences from the
courts against such atrocious crimes.’; S v Nchenche 2005 (2) SARC 386 WLD.
[11] The accused also acknowledged that they had a tumultuous relationship , and
in my view, this further motivated the complainant’s decision to leave the area. There
were minor children who witnessed the incident, and the accused disregarded their
best interests. He showed blatant disrespect and deliberately perpetrated a patte rn
of bullying.
[12] The derogatory remarks he made regarding the complainant’s womanhood
are too egregious to repeat but suffice it to say they further demonstrate his high
level of disrespect. Given the aggravating factors I have highlighted, the conce pts of
deterrence and retribution will play a significant role in determining an appropriate
sentence.
[13] Mr Nomlala presented a comprehensive argument, highlighting the
significance of the triad approach and the consideration of the accused’s personal
circumstances. These are:
- He is 39 years of age.
- He passed standard 9 and failed his matric.
- His mother is seriously ill.
- Due to financial constraints he could not pursue his studies.
- He has one brother who could also not pursue his studies due to ill-health.
- Before his arrest the accused was employed at Vincent hardware.
[14] In his address Mr Nomlala submitted that the circumstances of this case
should be considered cumulatively, without over -emphasising and under -
emphasising an y particular aspect. While I agree with the approach and the
principle, the accused’s personal circumstances exhibit no reasonable prospects of
rehabilitation.
[15] According to the evidence presented, the accused is a notorious figure in the
area, known to instil fear in others. This explains why the young men who
encountered the pair on the road did not intervene. The chances of rehabilitation are
further limited by the negative characteristics he demonstrated at the time of the
commission of the offenc e, including his behaviour in court before the start of the
proceedings as well as his previous convictions. It is a fact that the accused wasted
the court’s time by deliberately misleading it that he was ill, only to be revealed
through a documented medic al report that he was in fact physically fit and healthy.
This is not a side issue as it demonstrates that the accused has a tendency to
undermine the criminal justice system through repeated offending and deliberate
dishonest to the court.
[16] Again, although the accused had consumed liquor on the day of the incidents,
given the circumstances of this case, it cannot be said that his moral
blameworthiness was significantly affected by the consumption of liquor. In any
event, he was moderately intoxicated . Moreover, this aspect cannot be viewed in
isolation.
[17] Furthermore, despite the submissions that demise of his father adversely
affected his upbringing, this is not substantiated by the facts presented. His mother,
a self- entrepreneur who own a creche, took care of him from infancy and provided a
stable environment. She instilled standard moral values in him by introducing him to
church and other positive influences. Moreover, the emotional support is evident in
attendance at court proceedings demonstrating her investment in the accused’s well-
being.
[18] Therefore, in the overall scheme of things, there are no substantial and
compelling circumstances that would warrant deviation from the standard approach
in this matter.
[19] The accused is sentenced as follows:
1. Count 1- Kidnapping – To undergo 5 years’ imprisonment.
2. Count 2 – Rape in contravention of Section 3 of the Criminal Law, (Sexual
Offences and Related Matters) Amendment Act 32 of 2007, read with
Section 51(1), Part 1 of Schedule 2 of the Criminal Law Amendment Act 105
of 1997 (as amended) - the accused is sentenced to life imprisonment.
3. By operation of law, the sentence imposed in count 1 shall run
concurrently with the sentence imposed in count 2.
4. In terms of section 103(1) of the Firearms Control Act 60 of 2000, the
accused remains unfit to possess a firearm.
5. In terms of section 50 (1)(a) (i) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, as amended, the particulars of
the accused shall be included in the National Register for Sex Offenders.
_______________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the State : Adv: Vena
DPP, Makhanda
Counsel for the Defence : Adv: Nomlala
Legal Aid - South Africa
Date Heard : 01 August 2025
Date Delivered : 01 August 2025