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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: A317/2024
REPORTABLE: YES/NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED
Date: 29 September 2025
In the matter between:
MZWANDILE PHILLIP MASIMA Appellant
and
THE STATE Respondent
Summary: Sentencing: Improper to take charges with different minimum
sentencing requirements together for purposes of sentence. Improper for a trial
court to antedate a sentence. These and other misdirections rectified in
upholding an appeal against sentence.
ORDER
The appeal is upheld insofar as the sentences imposed are altered to read as
follows:
l. In respect of the charge of rape the accused is sentenced to 25
years imprisonment.
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2. In respect of the charge of assault with the intent to do grievous
bodily harm, the accused is sentenced to 10 years imprisonment.
3. The sentences are to run concurrently and are antedated to 11
October 2023.
JUDGMENT
The matter was heard in open court and authored by the Judge whose name is
reflected herein and was handed down electronically by circulation to the parties'
Legal representatives by email and by uploading it to the electronic file of this
matter on Caselines. The date of handing- down is deemed to be 29 September
2025.
DAVIS, J (MORE AJ (Ms) concurring)
Introduction
[1] In this matter the appellant had pleaded guilty in the court a quo to a
count of rape of a 16 year old girl and to having assaulted her with the intent to
do grievous bodily harm.
[2] The two counts were taken together for purposes of sentence and the
appellant was sentenced to life imprisonment. In addition, the court a quo , in
passing sentence on 11 October 2023, antedated the sentence to 19 December
2021, being the date since which the appellant had been incarcerated after his
arrest.
[3] The appellant appeals the sentence imposed, claiming that it is
shockingly inappropriate.
Relevant facts
[4] No evidence was led by the State and the facts therefore appear only
from the appellant's plea explanation, tendered in terms of section 112(2) of the
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Criminal Procedure Act (the CPA)1.
[5] The plea explanation is as follows:
"COUNT 1
I admit that on the 19th of December 2021 and at or near Etwatwa in the
Regional Division Gauteng, I as the accused did unlawful and intentionally,
on one occasion committed an act of sexual penetration with a female to
wit H[…] M[…] S[…] (16 years old by penetrating her vagina with my
penis without her consent.
I admit further that I am guilty of contravening the provisions of section 3
read with section 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law
Amendment Act (Sexual offences and Related Matters) 32 of 2007 read
with sections 256, 257 and 281 of the Criminal Procedure Act 51 of 1977;
the provisions of section 51 and 5 of schedule 2 of criminal Law
Amendment Act 105 of 1977, as amended as well as sections 92(2) and of
the Criminal Procedure 51 of 1977.
I admit that on the day I question 1 was at my neighbour's residence
for
the better part of the day enjoying alcoholic beverages at their
traditional wedding. At around 01h00 I proceeded home to retire for the
day.
Upon my arrival I noted that the complainant's door was slightly ajar
and I then proceeded to join her in bed. I began to rub her on her thigh
area but she got up clearly in shock about what was unfolding. She was
visibly shaken about what I was doing and began resisting my advances
by pushing me off I managed to subdue her by assaulting as will be
described in count 2 below.
1 51 Of 1977.
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I took off my pants, locked the door and took of the complainant's
underwear off and inserted my penis in her vagina, as I was on top of her.
She tried to scream but I managed to successfully muffle her mouth with
my hands.
I had sexual intercourse with complainant without a condom until I
climaxed. Shortly thereafter, the complainant asked if I could get her a
glass of water, to which I complied.. Upon my return from the kitchen I
found that she had escaped through the window in her bedroom.
I then went to sleep in my bedroom and woke up the day and went about
my day. 1was confronted by a relative about this whole ordeal the next day
and was advised to hand myself to the police, as the community was
being mobilized to take to take the law into their hands.
I was subsequently detained and arrested and hence my appearance
before the honourable court.
I admit that when I inserted my penis into the complainant , I knew what I
was doing and was mindful of the consequences thereof
My attorney has advised me of the contents of the J88 and the 212
statement and confirm the findings therein and have no objection that it
forms part of the proceedings as an exhibit.
COUNT2
I admit further that on the 19,1i of December 2021 and at or near Etwatwa
in the Regional Division Gauteng seated at BENONI, I as the accused did
unlawfully and intentionally assaulted Hlengiwe Mbali Sikhosana 16 years
old by pushing, pulling and strangling her with the intent of causing her
grievous bodily harm.
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I admit that I am guilty of assault with the intent to do grievous bodily harm
read with section 266 of the Criminal procedure Act 51 of 1977 and section
51(2)(b) of the Criminal Law Amendment Act 105 of 1997.
I admit that on the day in question while engaging in the rape of the
complainant as described supra, I intentionally and unlawfully pushed her
onto the bed and pulled her by her arms and hair in bid to get her to
comply with my demands of having non-consensual sex with her. I further
placed my hands around her neck and strangled her in bid to get her to
keep quiet as I was raping her. My sole intent was to cause grievous
bodily harm as described in the J88.
My attorney has advised me of the contents of the J88 and confirm the
findings therein and have no objection that it forms part of the proceedings
as an exhibit.
I concede further that I had the requisite intention at all material time s to
commit the aforementioned crimes. I therefore concede that I have no
valid defence for the actions.
I knew that my conduct was wrongful , unlawful and punishable by the
applicable laws of the Republic".
Ad sentencing
[6] The appellant had two previous convictions but they were unrelated in
nature and committed a long time ago. The first was for theft committed in
September 1996. From the sentence it can be deduced that this was not a
serious offence. The appellant was sentenced to a fine of R600.00 or 6
months imprisonment, which sentence was wholly suspended . The second
offence was that of possession of dagga in October 2015.
[7] Correctly, the learned magistrate did not afford these convictions
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much weight. To all intents and purposes, the appellant was a first offender and
was treated as such.
[8] The personal circumstances of the appellant were that he was 40 years
old at the time of the rape and assault and had been in a long term relationship
with the victim's mother for longer than 15 years. He has three minor children,
who he cares for despite having no formal employment. He operated a car -
washing business, earning about R2 800 per week.
[9] An extensive correctional services report recommended, after an
examination of the appellant's stable income, familial relationships and fixed
address, a sentence of correctional supervision in terms of section 276(l)(h) of
the CPA.
[10] A victim impact report was also placed before the court a quo. The
offences took place in the month of the victim's 17th birthday. She was then in
grade 10. As a result of the emotional impact of the rape and assault , she failed
that school year and dropped her clothing size from a 34 to a 28. The appellant
had come into the victim 's life when she was two years old and has since then
played a positive and responsible father figure to her until the incidents in
question. The victim has no memory of her biological father.
[11] The victim impact report correctly, in our view , concluded as follows:
"Rape is a violent and aggressive conduct geared towards belittling and
humiliating vulnerable persons for selfish motives, with no regard of its long-
term implications on the victim, her family and his own family ... ".
[12] The reasoning of the magistrate regarding the imposition of the life
sentence is somewhat convoluted. On the one hand she found no substantial
and compelling circumstances justifying a deviation from the minimum
sentencing regime, while at the same time she stated:"... the court will show
mercy". Right after having made this statement, she then imposed the life
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sentence.
[13] The magistrate also did not furnish any reasons for having taken the
two charges together for purposes of sentencing.
[14] A further strange feature of the proceedings before the magistrate is the
manner in which she had formulated the sentence in her inscription on the docket.
While the oral pronouncement of the sentence in the record simply says "the
accused is sentenced to life imprisonment", the aforementioned inscription reads
as follows: "Accused is sentenced to life imprisonment (25 years)".
[15]
In addition, as already mentioned, the magistrate added the following (both
on record and on the docket) "the sentence is antedated to 19/12/2021 being the
date of arrest".
Evaluation
[16] It is trite that sentencing falls within the discretion of the trial court and that
a court of appeal may only interfere .with such sentencing in instances where the
trial court has misdirected it self or has committed serious irregularity in
evaluating all the relevant factors relating to sentence2.
[17] In the present matter , the learned magistrat e has committed the
following misdirections and irregularities:
- by antedating the sentence imposed; and
- by imposing a globular sentence for the two counts.
[18] In respect of antedating a sentence, section 282 of the CPA provides as
follows:
2 S v Robie 1975 (4) SA 855 (A) at 857 D- E per Holmes JA and S v Salzwedel 1999 (2) SACR
586 (SCA).
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"Whenever any sentence of imprisonment imposed on any person on
conviction for an offence is set aside on appeal or review and any
sentence of imprisonment or other sent ence of imprisonment is
thereafter imposed onsuch person in respect of such offence in place of
the sentence of imprisonment imposed on conviction or any other offence
which is substituted/or that offence on appeal or review , the sentence
which was later imposed may, if the court imposing it is satisfied that
the person concerned has served any part of the sentence of
imprisonment imposed on conviction be antedated by the court to a
specified date, which shall not be earlier than the date on which the
sentence of imprisonment imposed on conviction was imposed, and
thereupon the sentence which was later imposed shall be deemed to
have been imposed on the date so specified". [my underlining]
[19] Section 282 does not make provision for a trial court to antedate a
sentence. While a trial court may , when imposing an appropriate sentence, take
the period of incarceration awaiting trial into account as a factor , it cannot, by
way of antedating, give "credit" as it were, for "time served". A sentence
commences running on the date it is imposed and it is only on appeal or review
that the appeal or reviewing court may antedate whatever sentence it imposes ,
and then only to the date of the impositioning of the original sentence3.
[20] The imposition of a globular sentence does not per se amount to a
misdirection, but it will be if there are two different minimum sentencing regimes
applicable to the two different offences under consideration.4
[21] This is the position in the present matter. In respect of count 1, the
charge sheet referred to the applicability of section 51(1) of the Criminal Law
3 Director of Public Prosecutions, Gauteng Division, Pretoria v Plekenpol (2017] ZASCA 151
(21 November 2017) at par 21 and S v Hawthrone 1980 (1) SA 521 (A).
4 S v Thobela 2020 (2) SACR 222 (GP).
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Amendment Act5 (the CLAA) and in respect of count 2 , reference was made to
section 51(2)(b) of the CLAA. The different minimum sentences provided for in
these sections were life imprisonment in respect of a rape of a minor and 10 years
imprisonment in respect of the assault with the intention to do grievous bodily
harm, committed by a first offender. Accordingly, the sentences to be imposed
in respect of the two counts have to be separated and therefore reconsidered.
[22] In respect of the rape charge, the court is acutely aware of the scourge
of this heineous crime in our society and the deterrent effect sentences should
have in respect thereof 6. Rape within a family context has its own "reprehensive
features"7.
[23) Despite the above, it is clear that the intention of the magistrate was to
impose a lesser sentence than the minimum life sentence, despite how she has
formulated it. She appears to have been motivated by the appellant's expressed
remorse and the fact that he was a first offender. The incorporation of the element
of mercy mentioned in the sentencing judgment, appears to result in her
attempt at tempering the life sentence imposed, with the limitation of 25 years
incarceration.
[24] Had the trial court correctly formulated its intention, then imposing (or
retaining in this instance) a life sentence in respect of count 1, would
effectively amount to interference by this court with the discretion of the trial
court and result in an impermissible increase in the intended sentence.
[25] In respect of count 2, we are of the view that a sentence of 10 years
in respect of that charge would not be inappropriate or induce a sense of
shock. The offence was the strangulation of a minor by a person who she
had trusted. We find no reason to d eviate from the prescribed minimum
5 105 of 1997.
6 See, for example Mudau v State (746/12) [2012] ZASCA 56 (9 May 2013) at par (17], sv
Chapman 1997 (2) SACR 3 (SCA) at par 5 and S v Kekana 2019 (1) SACR 1 (SCA).
Chapman 1997 (2) SACR 3 (SCA) at par 5 and S v Kekana 2019 (1) SACR 1 (SCA).
7 S v Abrahams 2002 (1) SACR 116 (SCA) at par [23].
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sentence in these circumstances.
[26] As to whether the two sentences, that is that of 25 years in respect of
court 1 and 10 years in respect of count 2 should run concurrently, we find the
following finding of this court instructive:
" ... an order that the sentences should run concurrently was called for
where the evidence showed that the offences were inextricably linked in
terms of locality, time, protagonists and a common intent, as was the case
in the present instance. The failure of the trial court to take these factors
into consideration resulted in the cumulative effect of the sentences being
disturbingly inappropriate. These factors justified an order of co ncurrence
in the sentences"8.
[27] To sum up, we find that two separate sentences should be
imposed in respect of the two counts and that those two sentences should
be 25 years and 10 years imprisonment respectively. The two sentences are
related to events which occurred either simultaneously or at least, within the
same space of time and place, and should therefore run concurrently. The
appeal should accordingly succeed, but only to this effect.
Order
[28] In the premises, an order is made in the following terms:
The appeal is upheld insofar as the sentences are altered to read as follows:
1. In respect of the charge of rape the accused is sentenced to 25
years imprisonrnent.
2. In respect of the charge of assault with the intent to do grievous
bodily harm, the accused is sentenced to 10 years imprisonment.
8 S v Mthethwa 2015 (1) SACR 302 (G). See also 5 v Kruger 2012 (1) SACR 369 (SCA).
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The sentences are to run concurrently and are antedated to 11 October
2023.
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
I agree
BMT MORE
Acting Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 19 August 2025
Reasons delivered: 29 September 2025
APPEARANCES:
For the Appellant: Adv LA Van Wyk
Attorney for the Appellant: Legal Aid South Africa, Pretoria
For the Respondent: Adv AP
Wilsenach
Attorney for the Respondent: The Director of Public Prosecution,
Pretoria