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[2025] ZAMPMBHC 57
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Mabuza v S (A30/2024) [2025] ZAMPMBHC 57 (18 June 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
Case No.: A30/2024
In the application
between:
ABEL
MBUTHO MABUZA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
VUKEYA J
[1]
The Appellant appeals against the sentence of life imprisonment
following a conviction
on a charge of contravening the provisions of
Section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, Rape, read with the provisions of
Section
51(1)
and
Part I
of Schedule 2 of the
Criminal Law Amendment Act 105
of 1997
.
[2]
Central to this appeal is the enquiry whether a sentence of life
imprisonment was
indeed an appropriate sentence in the circumstances
of the case. The appellant’s argument was advanced raising two
issues,
namely, the Court
a
quo
’s
failure to deviate from the prescribed minimum sentence of life
imprisonment due to its failure to find substantial and
compelling
circumstances and that, the sentence of life imprisonment was
shockingly
inappropriate
in the circumstances.
[3]
Firstly, t
he
appellant contends that the
Court
a
quo
failed
to find that his age; his scholastic qualifications; the fact that he
is a first offender; that he was raised by his grandmother
without a
father figure and the time he spent in custody; constituted
substantial and compelling circumstances justifying a deviation
from
the prescribed minimum sentence, if considered cumulatively.
[4]
Secondly, the appellant contends that the Court
a
quo’s
failure
to consider the above circumstances cumulatively resulted in it
incorrectly imposing a sentence of life
imprisonment,
under-emphasizing
his personal circumstances and over-emphasizing the impact of the
crime on the victim.
[5]
I pause here to briefly discuss
the appellant’s application for condonation for the
late noting
of this appeal.
[6]
The appellant applied for condonation for his failure to prosecute
his appeal timeously.
The condonation application is not opposed by
the respondent. It is supported by an affidavit in which the
appellant provides an
explanation of the steps he has taken since the
date of his sentence to prosecute the appeal. The main reason
advanced for
the lateness in prosecuting the appeal is attributed to
his legal representative who did not proceed with his appeal
timeously.
[7]
When the appellant made a follow
up regarding his appeal he was afforded a new attorney
by Legal Aid
South Africa, who then started with the appeal proceedings. Upon due
consideration of the reasons advanced in the
application, condonation
is granted.
[8]
I return to the appeal
hereunder.
[9]
The complainant, accompanied by two friends, visited the residence of
the Appellant
and asked him for money to buy sweets. The
Appellant provided the complainant’s friends with money to go
to the shop
and instructed the complainant to remain behind.
Thereafter, he picked her up, took her to his room, where he
proceeded to rape
her by forcefully penetrating her vagina with his
penis. Despite the complainant’s cries and pleas for him to
stop, the Appellant
persisted.
[10]
Following the commission of the offence, the Appellant instructed the
complainant not to disclose
the incident to anyone and gave her
R6-00. The complainant confided in her cousin, requesting her to keep
the matter confidential.
The cousin teased the complainant, which led
to the matter becoming public.
[11]
Subsequent to the disclosure, the complainant was taken to hospital
where she underwent a medical
examination. She was admitted for
several weeks and received treatment for oedema which was caused by
the fact that she could not
urinate as it was too painful.
[12]
The appellant appeared before the court
a quo
facing rape
charges. He pleaded guilty to the charges and was convicted as
charged. A victim impact report was handed up during
sentence
proceedings and it stated the following:
“
I would like to
advise the court as to how the crime has affected me or my family.
The psychological or emotional trauma suffered
as a result of the
crime. When I was raped my private part became painful. I
told my mother and she took me to the
clinic. I was thinking
too much and I was crying for no reason. At home I do not play
with my friends and I watch TV.
I am scared of Abel.”
[13]
The State also called the victim’s mother to testify in
aggravation of sentence. The mother
stated that the child suffers
from recurring nightmares and is unable to sleep at night and is
still sleeping with her. The child
developed swelling and was
admitted to Rob Ferreira Hospital, where she was diagnosed with
oedema. According to the doctors, this
condition is uncommon in
children and is typically caused by physical trauma or extreme fear.
[14]
The mother further testified that the child only disclosed later that
she was unable to urinate due
to severe pain. A social worker
contacted the mother to come to the hospital and during questioning
about the child’s nightmares,
the mother informed her that the
child had been raped. She also confirmed that the child had become
withdrawn and isolated herself
from others.
[15]
The Appellant testified in mitigation of sentence and told the court
that he is 37 years old,
unmarried and has two children aged 10 and
14, who live with their respective mothers. Prior to his
incarceration, he was self-employed
as a building contractor, earning
between R7,000.00 and R10,000.00 per month. His highest level of
education is Standard 7. The
Appellant appealed to the court to give
him a non-custodial sentence and an opportunity to build a future for
his children, so
they could have a stable home.
[16]
The Appellant’s legal representative submitted that the victim
is no longer suffering from
the effects of the rape. It was also
argued that the Appellant is a first-time offender who grew up
without a father figure, having
been raised by his grandmother and
left to navigate life on his own. He contributes R1,500.00 per month
towards the upbringing
of his children. The legal representative
further argued that the court should consider Section 28 of the
Constitution, which prioritises
the best interests of minor children.
He also contended that the Appellant has good prospects for
rehabilitation, as he is a first-time
offender who made a mistake.
[17]
Rape of a child is not merely a crime, it is the destruction of
innocence, the silencing of a
voice still learning to speak. It
is a form of psychological murder, leaving wounds deeper than the
physical. In the
eyes of the law and in the heart of justice,
such acts cry out for a response that affirms the sanctity of
childhood and the duty
of courts to protect it. In doing so,
speak for every child who looks to the law for refuge.
[18]
The provisions of
section 51(1)
of the
Criminal Law Amendment Act are
applicable in this matter and prescribe the following minimum
sentence in a peremptory manner:
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person—
(a)
if it has convicted [a person] of an offence referred to in
Part 1
of
Schedule 2 … to imprisonment for life.”
[19]
Section 51(3)(a)
of the
Criminal Law Amendment Act contains
a
redeeming provision and determines the following:
“
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 sentence prescribed in
those subsections, it shall enter those circumstances
on the record
of the proceedings and [may] must thereupon impose such lesser
sentence: Provided that if a regional court imposes
such a lesser
sentence in respect of an offence referred to
Part 1
of Schedule 2,
it shall have jurisdiction to impose a term of imprisonment for a
period not exceeding 30 years.”
[20]
Section 51(3)(aA)
of the
Criminal Law Amendment Act aids
the
interpretation of the phrase
“substantial
and compelling circumstances”
by
stating which facts shall not constitute
“substantial
and compelling circumstances”
.
This provision reads as following:
“
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.”
[21]
It is trite that sentencing is pre-eminently a matter for the
discretion of the trial court and
that an appeal court should only
alter a sentence if that discretion has not been judicially and
properly exercised, namely where
the sentence is vitiated by
irregularity, misdirection or is disturbingly inappropriate.
[1]
[22]
In
S
v
Malgas
[2]
,
the following approach was postulated:
“
The
mental process in which courts engage when considering questions of
sentence depends upon the task at hand. Subject of course
to any
limitations imposed by legislation or binding judicial precedent, a
trial court will consider the particular circumstances
of the case in
the light of the well-known triad of factors relevant to sentence and
impose what it considers to be a just and
appropriate sentence. 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.
In doing so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate court is at
large. However, even in the absence of material misdirection, an
appellate court may yet
be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence
of the trial court and the sentence which the appellate
court would have imposed had it been the trial court is so marked
that
it can properly be described as “shocking”,
“startling” or “disturbingly inappropriate”.
It
must be emphasised that in the latter situation the appellate
court is not at large in the sense in which it is at large in the
former. In the latter situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord
with
the sentence imposed by the trial court or because it prefers it to
that sentence. It may do so only where the difference
is so
substantial that it attracts epithets of the kind I have mentioned.
No such limitation exists in the former situation.”
[23]
Whether it is necessary to engage in an enquiry into the seriousness
of the offense seems misplaced.
Nevertheless, this Court is mindful
that “
a
sentence must reflect the seriousness of the offence and must
resonate with the natural indignation of society, while always
maintaining a balanced approach
[3]
.”
[24]
The Magistrate in the court a quo appropriately considered the
gravity of the offence, the degree
of the offender’s
culpability, and the consequences that flowed from it. The impact on
the victim was duly acknowledged,
not only through the evidence of
the mother but also by way of the J88 medical report. The report
documented four healing tears
as reflected on the schematic diagram,
including redness and tears around the entrance to the vagina
including at the back part
of the hymen. Additionally, it was noted
that the child experienced such pain in her genital area that
urinating became difficult.
[25]
The Victim Impact Report, which was handed up by consent, presents a
deeply distressing account
of the complainant’s condition
following the rape. The most severe after-effects include:
(a)
Persistent anxiety, fear, and a sleeping disorder;
(b)
A profound loss of trust in others, particularly men.
[26]
There can be no serious dispute that the rape of young girls has
become a pervasive and insidious
crisis, akin to a malignant cancer,
threatening the physical, emotional, and psychological development of
young children. To describe
it merely as a serious offence is to
understate its devastating effect on both individual victims and
society at large.
[27]
The Appellant contended that the hearsay evidence tendered by the
victim’s mother during
the sentencing proceedings, specifically
relating to the impact of the offence on the victim, ought not to
have been admitted.
In this regard, reliance is placed on the
principles set out in
Kapa
v S
[4]
,
which outline the circumstances under which hearsay evidence may be
permitted by a court.
27.1
The Nature of the Proceedings
In the present matter,
the Appellant had already been convicted at the time the evidence in
question was led. The evidence was introduced
during the sentencing
phase, and the defence was afforded the opportunity to cross-examine
the mother of the victim. Accordingly,
the procedural context
supported the admission of such evidence.
27.2
The Nature of the Evidence
The evidence pertained to
the emotional and physical impact of the offence on the child victim.
At the time the offence was committed,
the victim was six years old
and ten years old when the trial commenced. Given the age of the
victim and the sensitivity of the
matter, her mother was best
positioned to provide insight into the ongoing effects the crime had
on the child.
27.3
The Purpose for Which the Evidence Was Adduced
In determining an
appropriate sentence, the court is required to consider the interests
of society alongside those of the Appellant.
Understanding the impact
of the offence on the victim is vital in presenting a complete and
balanced view before the court imposes
sentence.
27.4
The Probative Value of the Evidence
The mother's testimony
served to corroborate the victim’s own account, including
details such as the child isolating herself,
experiencing pain, and
struggling to urinate. The trial court accepted her evidence on the
basis of her credibility and the reliability
of her observations.
27.5
Potential Prejudice to the Appellant
At the stage when the
evidence was introduced, the Appellant had already been convicted.
The matter before the court was limited
to the determination of an
appropriate sentence. It is further noteworthy that, in terms of
Section 51(3)
of the
Criminal Law Amendment Act, an
apparent lack of
physical injury to the complainant is not a determinative factor in
deciding whether life imprisonment is justified.
As such, the
admission of the mother's evidence did not occasion any prejudice to
the Appellant.
[28]
In light of the above considerations, the admission of the hearsay
evidence was appropriate and
in accordance with established legal
principles.
[29]
In stark contrast, the appellant has demonstrated no remorse. He was
convicted and did not appeal
against his conviction. Yet, he
continues to deny any wrongdoing and has not taken responsibility for
his actions, thus his request
for a non-custodial sentence in the
court a quo and the appeal against his sentence in this court.
[30]
Having considered the arguments advanced on behalf of the appellant
and weighed them against
the cumulative impact on the complainant,
this Court is satisfied that the offence was of such a serious nature
that it was not
overemphasised, as claimed. Accordingly, the
seriousness of the offence does not constitute a substantial and
compelling circumstance
justifying a deviation from the prescribed
sentence.
[31]
This court when considering “substantial and compelling
circumstances in order to deviate
from the prescribed minimum
sentence should apply the principles as set out in
S
v Malgas
(supra)
:
‘
Whatever
nuances of meaning may lurk in those words, their central thrust
seems obvious. The specified sentences were not to be
departed from
lightly and for flimsy reasons which could not withstand scrutiny.
Speculative hypotheses favourable to the offender,
maudlin sympathy,
aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy implicit in the amending
legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.
Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions,
might have justified
differentiating between them. But for the rest I can see no warrant
for deducing that the Legislature intended
a court to exclude from
consideration, ante omnia as it were, any or all of the
many factors traditionally and rightly
taken into account by courts
when sentencing offenders.’
[32]
As was stated in Malgas (supra) the
court was not given a clean slate on which to inscribe whatever
sentence it thought fit.
It was required to approach that
question conscious of the fact that the Legislature has ordained life
imprisonment as the sentence
which should ordinarily be imposed for
the commission of rape of a minor.
[33]
A court can only deviate from the prescribed minimum sentence if
after considering all the circumstances
of the case, it is satisfied
that they render the prescribed minimum sentence unjust in that it
would be disproportionate to the
crime, the criminal and the needs of
society, so that an injustice would be
done
by imposing that sentence.
[5]
[34]
As was stated in the case of
Ludidi
v S
[6]
,
proportionality is central to whether a sentence is cruel, inhumane
or degrading, which was confirmed by the Constitutional Court
in
S
v Dodo
[7]
.
It is not just proportionality between the mandatory sentence
legislated upon, and the sentence which the offence merits,
that
would lead to an infringement of the right not to be deprived of
freedom
arbitrarily without just cause in terms of s 12(1)
(a)
of
the
Constitution
,
but rather whether it is grossly disproportionate.
[35]
P
re-sentencing
detention is concerned with the prejudice the Appellant suffers by
virtue of the delay from the time he is arrested
until the time he is
sentenced. In the real world, there will always be a delay, no matter
how efficient the criminal justice system
is. Nevertheless, where the
court is concerned with a determinate sentence, one can assess the
accused’s prejudice by contrasting
the actual position with a
hypothetical scenario in which there was no delay between arrest and
sentencing. In the hypothetical
scenario, the accused would have
started his sentence on the date he was arrested, and would thus have
been released sooner
[8]
.
[36]
The aforementioned scenario is not applicable to the present
case. Where life imprisonment is imposed, it is clear that the
Appellant
will not be released in the foreseeable future.
[37]
The Appellant further contends that the absence of a father figure
during his upbringing should
be taken into account in mitigation of
sentence. It is acknowledged that a substantial number of children in
South Africa are raised
without the presence of their biological
fathers in the household. According to the
State of South Africa’s
Fathers 2024
report, only 35.6% of children resided with their
biological fathers in 2023, indicating that approximately 64.4%—or
12.7
million out of an estimated 19.7 million children under the age
of 18—did not.
[38]
However, it cannot be reasonably asserted that the mere absence of a
father figure inevitably
leads to criminal behaviour. Individuals are
not solely defined by the circumstances of their upbringing, but
rather by the choices
they make throughout their lives. Consequently,
this factor does not amount to an exceptional circumstance that would
justify deviation
from the prescribed minimum sentence.
[39]
The Magistrate adequately took into consideration the aims of
punishment and especially the prospects
of rehabilitation as
requested by the Appellant but came to the conclusion that with
crimes as serious as this when it comes to
the aims of punishment the
aim to rehabilitate an accused recedes into the background and the
other aims of punishment becomes
of greater importance namely
deterrence, prevention and retribution.
[40]
The Appellant was sentenced to life imprisonment for raping a six
year old girl, while the court
a quo
considered the aforesaid
provisions of the Act, the Appellant’s personal circumstances,
the nature and seriousness of the
offence, the interests of society.
The court
a quo
found that the nature of the crime outweighed
the Appellant’s circumstances and therefore that no substantial
and compelling
circumstances existed to deviate from the minimum
sentence. We are unwilling to interfere with the court
a quo’s
sentencing discretion as we are of the view that there has been no
misdirection.
[41]
In the premises, I propose that the following order be made:
(a)
The application for condonation is granted;
(b)
The appeal against sentence is dismissed;
________________________
Vukeya LD
Judge
of the High Court
_______________________
Roelofse J
Acting Judge of the High
Court
Appearing for the
Appellant: M.V KEKANA LEGAL AID MBOMBELA
Appearing for the State:
Advocate. S ZINDELA
Office of the Director of
Public Prosecutions
Date of hearing: ON PAPER
Date of Judgment: 18 JUNE
2025
[1]
S v
Holder
1979
(2) SA 70
(A) at 75A
[2]
2001
(2) SA 1222
(SCA)
at paragraph 12
[3]
D
v The State
(89/16)
[2016 ] ZASCA 123 (22 September 2016) at para 14.
[4]
Kapa v S 2023 (4) BCLR 370 (CC)
[5]
Malgas v S
2001
(2) SA 1222
(SCA)
at
para 25.
[6]
Ludidi & Others v S (056/2024; 983/2022) (2024) ZASCA 162
[7]
S
v Dodo
[2001]
ZACC 16
;
2001 (3) SA 382
CC; 2001 (5) BCLR 423 (CC) paras 37-39.
[8]
S v Solomon & Others (CC23/2028)
(2020) ZAWCHC 118