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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case number: AR78/2022P
In the matter between:
MENZI EMMANUEL MONDLI DLAMINI APPELLANT
and
THE STATE RESPONDENT
Coram: MNGADI and MOSSOP JJ
Heard: 5 September 2025
Delivered: 12 September 2025
ORDER
On appeal from: the Estcourt Regional Court (sitting as the court of first instance):
1. Save to the extent set out in paragraph 2 below, the appellant’s appeals
against the sentences imposed upon him of:
(a) Life imprisonment on a charge of murder; and
(b) Life imprisonment on a charge of rape,
are dismissed.
2
2. In terms of the provisions of s 280(2) of the Criminal Procedure Act 51 of
1977, it is ordered that the sentences referred to in paragraphs 1(a) and 1( b) above
shall be served concurrently with each other.
JUDGMENT
Mossop J (Mngadi J concurring):
Introduction
[1] The appellant stood trial in the Estcourt Regional Court on three charges: a
count of housebreaking with intent to rape and rape, a count of murder and a count
of rape. He was convicted as charged on all three counts after pleading not guilty to
each and was sentenced to eight years’ imprisonment on the count of
housebreaking, life imprisonment on the count of murder and life imprisonment on
the count of rape.
[2] Given the two sentences of life imprisonment imposed upon him, the
appellant enjoys an automatic right of appeal i n terms of the provisions of s
309(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA) . Before us is the
appellant’s appeal against his sentences only on the counts of murder and rape .
Before considering the charges and the sentences imposed , it will be helpful to
briefly consider the facts found to be proven by the regional magistrate.
The factual landscape
[3] The facts are not complicated, but they are, unfortunately, brutal. The victim,
Ms N[...] M[...] (Ms M[...] ), was 59 years young and lived alone when she was
murdered in her home near Ntabamhlophe , KwaZulu -Natal on the evening of 1 0
September 2014. Before she was murdered, her home had been forcibly opened,
and she had been raped.
[4] Other than Ms M[...] and her assailant, t here were no eyewitnesses to these
cruel events. That they were cruel brooks of no doubt: the cause of Ms M[...]’s death
3
was found to be strangulation and the classic indication of that mechanism of death
was present, namely a fractured hyoid bone , which is located in the anterior of the
neck between the chin and the thyroid cartilage.
[5] The appellant was linked to the violation, and the death, of Ms M[...] by way
of the presence of deoxyribonucleic acid (DNA) evidence found at the crime scene
that, upon examination and comparison, matched his own DNA. That DNA evidence
was extracted from a cloth found lying on Ms M[...]’s bed that contained some of the
appellant’s blood on it and in semen found post-mortem within Ms M[...]’s vagina.
[6] There was no dispute over these findings at the trial, and it was accepted by
the defence that the appellant’s DNA was extracted from the bloody cloth and from
the semen found in Ms M[...]’s vagina. It was also accepted that such evidence had
been properly harvested, preserved and forwarded to the forensic sciences
laboratory for examination after Ms M[...]’s lifeless body was found, partially nude, in
the yard adjoining her home on the morning following her murder.
[7] The person who , without justification, took the life of Ms M[...] was the
appellant. He has conceded, ultimately, that he did so by electing not to challenge
his conviction on the murder and rape charges . He, however, did not concede his
guilt at the trial and, instead, propagated the absurd version that he and Ms M[...],
who was 32 years his senior at the time of her death , were secret lovers. That
version can only have been concocted by the appellant in a desperate, but vain,
attempt to explain the presence of his semen in Ms M[...]. Indeed, he came up with
explanations, which were contrived and fanciful , in my view, to explain all the
damning evidence that the State led to establish his guilt : for example, scratches on
his neck that would , no doubt, have been caused by Ms M[...] as she struggled with
his neck that would , no doubt, have been caused by Ms M[...] as she struggled with
the appellant for her life, were ascribed by him to his being attacked, for no plausible
reason, by two unknown men on the very night that Ms M[...] was murdered. Whilst
this alleged attack on him left physical marks upon hi s body, his attackers did not
attempt to take anything from him.
[8] The DNA evidence was powerful and permitted the appellant no room to
manoeuvre and could only potentially be avoided by a concocted story. The
4
appellant duly obliged with such a concocted story but the version that he advanced
was simply so incredible that it was easily, and rightly , rejected by the regional
magistrate.
The charge of rape
[9] There is an issue that must be addressed before considering the adequacy,
or not, of the sentence imposed upon the appellant , namely whether the count of
rape attracted a minimum sentence of life imprisonment. In prosecuting the appellant
on this count, the State invoked the provisions of the Criminal Law Amendment Act
105 of 1997 (the Act) . The trial court found that the offence defined in part I of the
schedule applied and duly imposed the prescribed minimum sentence.
[10] None of the grounds mentioned in part I of the schedule fit the facts of this
matter, bar one. That ground is that the rape involved the infliction of grievous bodily
harm upon Ms M[...] . The charge put to the appellant did not isolate this specific
ground, but it did indicate to the defence that, broadly, the State relied upon the
provisions of s 51(1) of the Act. The defence was, therefore, adequately forewarned.
[11] The grievous bodily harm required to place the rape of Ms M[...] in part I of
the schedule was her strangulation and ultimate death . However, while there was
medical evidence adduced at the appellant’s trial, there was no evidence that fixed
the time when Ms M[...] was killed. Had she been strangled during the course of the
rape or had the appellant formed the decision to murder her after the act of rape was
already completed? If it is the former, then life imprisonment could have been
imposed; if it is the latter, then it may not have been a sentencing option available to
the regional magistrate.
[12] There are conflicting decisions on th is issue. In S v Thole,1 the offences, as
in this matter, were rape and murder. The appellant pleaded guilty to both offences
but the court recording th e plea found that the appellant formed the intent to rape
but the court recording th e plea found that the appellant formed the intent to rape
1 S v Thole 2012 (2) SACR 306 (FB) (Thole).
5
first and the intent to murder later after the rape was completed. As the schedule
provided that the rape had to involve the infliction of grievous bodily harm, the
meaning of the word ‘involved’ was considered. It was found to mean to include
something as a ‘necessary part of an activity, event or situation’.2 The stabbing of the
victim which led to her death was found not to be a part of the rape and thus the
appropriate sentence was ten years’ imprisonment and not life imprisonment.
[13] However, in this division in S v Tuswa ,3 the court found the meaning of the
word ‘involved’ to be slightly different to the meaning found in Thole. It was found to
‘... include something as a necessary part or result of an activity...’ . Killing a victim to
avoid detection for a rape committed may , accordingly, be a result of the offence of
rape.
[14] Clarity on the issue was provided in 2014 by Goosen J in S v September.4 In
that matter, as in this matter, the victim was strangled to death after her rape .
Goosen J expressed himself as follows:
‘[5] [Schedule 2] also refers to the crime of rape involving the infliction of grievous
bodily harm. It is not immediately apparent whether what is contemplated is the infliction of
grievous bodily harm in the commission of the rape as a circumstance wholly distinct from
that contemplated as an aggravating feature in relation to murder.
[6] The grievous bodily harm upon which the prosecution relies is the strangulation and
death of the deceased.
[7] Whatever the ambit of the provisions may be, the effect, it seems to me, is to bring
about a situation where in every instance in which the crime of rape is committed and the
victim of the rape is murdered, either during or after the commission of the rape, an accused
person convicted of both the rape and the murder faces life imprisonment on account of
each of the offences.’
[15] I find myself in agreement with this reasoning. I conclude that t he sentence
[15] I find myself in agreement with this reasoning. I conclude that t he sentence
of life imprisonment was accordingly available to the regional magistrate.
[16] I turn now to consider the appropriateness of the sentences imposed.
2 Ibid para 11.
3 S v Tuswa 2013 (2) SACR 269 (KZP) para 31.
4 S v September [2014] ZAECGHC 38 paras 5-7.
6
The appellant’s submissions on sentence
[17] Mr Mbatha (no relation to the deceased ), who appears for the appellant,
made the submission in his heads of argument that the sentences of life
imprisonment imposed upon the appellant were:
‘… grossly inappropriate and induce a sense of shock’.
[18] In sentencing a convicted person, i t is not controversial that the judicial
officer exercises a discretion.5 It is also not capable of being disputed that an appeal
court will be slow to interfere with a sentence imposed by a lower court, and that
each case depends on its own facts. 6 An appeal court , such as this court ,
consequently may not disturb a sentence imposed by the sentencing court simply
because this court may have imposed a different sentence. For an appeal court to
intervene and upset a sentence imposed by the sentencing court , there must be
evidence of a misdirection of such seriousness that demonstrates that the
sentencing court either did not exercise its sentencing discretion at all or exercised it
improperly or unreasonably when imposing the sentence.7
[19] The appellant’s heads of argument suggest that the regional magistrate
misdirected herself by not sufficiently considering the prospects of the appellant
being rehabilitated . Mr Mbatha suggested in this regard that, given the appellant’s
age, 33 at the time of conviction, it would appear unlikely that he would reoffend
once released from prison. Quite frankly, I do n ot understand what the appellant’s
age has to do with him re -offending in the future. Age does not automatically bring
wisdom and obeisance to the law and is therefore not a reliable predictor, in my
view, of the future likelihood of further crimes being committed. What is, in my view,
a far more certain predictor of future conduct is past conduct. And there , the
appellant has some difficulties. In 2008, six years before the events that we are
concerned with, he was convicted of robbery and sentenced to eight months’
concerned with, he was convicted of robbery and sentenced to eight months’
imprisonment that was suspended for a period of three years. In 2009, he was
convicted of housebreaking and was sentenced to five years’ imprisonment, which
5 S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Sadler 2000 (1) SACR 331 (SCA) para 8.
6 S v Zulu 2003 (2) SACR 22 (SCA) para 11.
7 S v Pillay 1977 (4) SA 531 (A) at 535E-F; S v Hewitt [2016] ZASCA 100; 2017 (1) SACR 309 (SCA)
para 8.
7
sentence was again suspended, this time for five years. None of these exposures to
the criminal justice system seem to have caused the appellant to reflect on his
conduct and to mend his ways and there is evidence of a trend in his behaviour. I
am, therefore, not confident that Mr Mbatha is correct in his premise.
[20] It was further suggested by Mr Mbatha that the sentences imposed upon the
appellant were:
‘… unjust in that it is disproportionate to the crime, the needs of society as well as that of the
Appellant.’
[21] Again, I fear that I am in disagreement with Mr Mbatha. The gift of life is the
most precious asset that a person possesses. To snatch that life away before it has
run its full course , however long that may be, is rightly regarded by society a s a
heinous crime. Likewise, t he act of rape, in respect of which the appellant now
concedes his guilt , is a most repulsive crime that strikes at the essence of
womanhood. It impugns the victim both physically and mentally , invades her dignity
and humiliates and degrades her.
[22] Thus, the crimes of murder and rape rank as of the most serious of crimes
with which a person can be charged. They must , therefore, of necessity , attract
sentences of considerable severity when proved . Ironically, Mr Mbatha
acknowledged in his heads of argument that the appellant was, indeed, convicted of
profoundly serious crimes and that lengthy sentences were warranted.
[23] Because of the serious nature of the offences of murder and rape , the
legislature has decreed that minimum sentences are to be imposed upon conviction
for committing those specific offences. As was stated in S v Malgas,8 the legislature
intended that these minimum sentences should be imposed and should not be
avoided by the alleged existence of ‘flimsy’ reasons for their non-imposition.
[24] Thus, not only is the imposition of the sentences of life imprisonment for the
offences of murder and rape not ‘unjust’, as contended for by Mr Mbatha, but their
offences of murder and rape not ‘unjust’, as contended for by Mr Mbatha, but their
8 S v Malgas 2001 (1) SACR 469 (SCA) para 25.
8
imposition is also specifically what the legislature calls for in the absence of
substantial and compelling circumstances being established by the appellant. In my
view, no substantial or compelling circumstances were demonstrated to exist by the
appellant. Certain personal facts were disclosed to the court on his behalf . These
included that the appellant was 3 3 years of age at the time of his conviction and that
he was the father of three children. In this regard, h is counsel submitted that if the
appellant’s personal circumstances were:
‘… to be considered cumulatively, the Court may find that there are indeed compelling and
substantial circumstances for the Court not to impose minimum sentence.’
[25] I am not entirely sure what this is intended to mean. How are personal
circumstances considered cumulatively? Is it suggested that if a number of
uncompelling circumstances are mentioned o ne after the other , they transform
themselves and become compelling circumstances? It appears to me that all that
can truly be submitted is that all of the circumstances raised by the appellant must
be considered by the court and must be weighed up and assessed when it is
determined whether they amount to substantial and compelling circumstances.
[26] The regional magistrate approached the question of sentence properly and
thoroughly and considered all the factors that are ordinarily taken into account. This
included the appellant’s personal circumstances . However, as was stated in S v
Vilakazi:9
‘In cases of serious crime the personal circumstances of the offender, by themselves, will
necessarily recede into the background. Once it becomes clear that the crime is deserving of
a substantial period of imprisonment the questions whether the accused is married or single,
whether he has two children or three, whether or not he is in employment, are in themselves
largely immaterial to what that period should be, and those seem to me to be the kind of
largely immaterial to what that period should be, and those seem to me to be the kind of
“flimsy” grounds that Malgas said should be avoided.’
[27] In arriving at the appropriate sentence to be imposed upon the appellant, the
regional magistrate considered the time that he had spent in custody awaiting trial,
which amounted to just over a year. A year can be a long time in a person’s life, but
in the life of the criminal justice system , it is, unfortunately, not a long time.
9 S v Vilakazi 2009 (1) SACR 552 (SCA) para 58.
9
Ordinarily, a period spent in custody awaiting trial is deducted from any sentence of
imprisonment imposed upon a convicted person. But that cannot be done where the
prescribed minimum sentence is life imprisonment and there are no substantial and
compelling circumstances to justify the imposition of another, less severe sentence.10
In the circumstances, the regional magistrate found there to be no substantial and
compelling circumstances present, and she decided not to depart from the
prescribed minimum sentences. In my view, she was correct not to do so.
[28] In sentencing the appellant, the regional magistrate did not indicate whether
the sentences that she imposed would be served concurrently or consecutively. This,
however, did not amount to an irregularity on her part. 11 Sections 280(1) and (2) of
the CPA provide as follows:
‘(1) When a person is at any trial convicted of two or more offences or when a person
under sentence or undergoing sentence is convicted of another offence, the court may
sentence him to such several punishments for such offences or, as the case may be, to the
punishment for such other offence, as the court is competent to impose.
(2) Such punishments, when consisting of imprisonment, shall commence the one after
the expiration, setting aside or remission of the other, in such order as the court may direct,
unless the court directs that such sentences of imprisonment shall run concurrently.’
If nothing is said by the sentencing court, the default position is that the sentences
must be served consecutively.
[29] Section 39(2)(a)(i) of the Correctional Services Act 111 of 1998 , however,
reads as follows:
‘(2)(a) Subject to the provisions of paragraph (b), a person who receives more than one
sentence of incarceration or receives additional sentences while serving a term of
incarceration, must serve each such sentence, the one after the expiration, setting aside or
incarceration, must serve each such sentence, the one after the expiration, setting aside or
remission of the other, in such order as the National Commissioner may determine, unless
the court specifically directs otherwise, or unless the court directs such sentences shall run
concurrently but-
(i) any determinate sentence of incarceration to be served by any person runs
concurrently with a life sentence or with sentence of incarceration to be served by
such person in consequence of being declared a dangerous criminal…’
10 S v Solomon and Others 2021 (1) SACR 533 (WCC).
11 S v Yose and Another 2022 (2) SACR 603 (WCC).
10
[30] Thus, strictly speaking, there may have been no need for the regional
magistrate to have made the determination of how the sentences are to be served. I
do think, however, that it is a salutary practice for regional magistrates to mention
how the sentences that they impose will be served when sentencing an accused
person who undoubtedly would not have personal knowledge of the legislation to
which I have just referred. To avoid any possible uncertainty arising when this
judgment is later considered and construed, I deem it appropriate to record how the
sentences are to be served in the order of this court.
Conclusion
Being strangled is an inherently intimate and yet terrifying way to perish . The
strangler, literally, employs a hands-on attack to deprive his victim of life by robbing
her of air, then her consciousness and then her life. I must accordingly disagree with
Mr Mbatha’s opening proposition that the sentences imposed upon the appellant
were grossly inappropriate a nd induced a sense of shock. I am more certain of this
when I consider that the appellant treated Ms M[...] with utter disrespect and
discarded her body, partially clad , out in the open as if she did not matter , and as if
she was a piece of disposable refuse. She was not a piece of refuse but was a
human being. Her life did matter, and she was deserving of respect and dignity. She
did not receive either at the hands of the appellant . The sentences accordingly do
not induce in me a sense of shock.
Order
[31] In the circumstances, I would propose the following order:
1. Save to the extent set out in paragraph 2 below, the appellant’s appeals
against the sentences imposed upon him of:
(a) Life imprisonment on a charge of murder; and
(b) Life imprisonment on a charge of rape,
are dismissed.
2. In terms of the provisions of s 280(2) of the Criminal Procedure Act 51 of
1977, it is ordered that the sentences referred to in paragraphs 1(a) and 1(b) above
1977, it is ordered that the sentences referred to in paragraphs 1(a) and 1(b) above
shall be served concurrently with each other.
11
_____________________________
MOSSOP J
I agree and it is so ordered:
_____________________________
MNGADI J
12
APPEARANCES
Counsel for the appellant: Mr B Mbatha
Instructed by: Legal Aid South Africa
Pietermaritzburg
187 Hoosen Haffejee Street
Pietermaritzburg
Counsel for the respondent: Mr J Khathi
Instructed by: Director of Public Prosecutions
Pietermaritzburg