AR333-24 S v Zondi (v3) (rb) - 17.10.25
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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL PIETERMARITZBURG
REPORTABLE
Case No.: AR333/2024
In the matter between:
PHILANI MCEBO ZONDI Appellant
and
THE STATE Respondent
ORDER
On appeal from: Regional Court for the Regional Division of KwaZulu -Natal, held at
Camperdown (Magistrate Ncanyana presiding):
1. The appeal against sentence is dismissed.
2. The sentences on counts 1, 2, 3, and 4 of the court a quo are confirmed.
JUDGMENT
Harrison J (E Bezuidenhout J concurring)
2
Introduction
[1] This is an appeal against the sentences handed down by Magistrate
Ncanyana of the Regional Court , Camperdown, on 26 July 2024. Leave to appeal
was granted against sentence.
[2] The appellant pleaded guilty to the following charges:
(a) Count 1 – Assault with intent to do grievous bodily harm (in which a
prescribed minimum sentence of 10 years is applicable due to the domestic
relationship between the accused and the first complainant, Ms F[...] M[...]);
(b) Count 2 – Assault with intent to do grievous bodily harm;
(c) Count 3 – Malicious damage to property;
(d) Count 4 – Contravention of a protection order (contravening s 17(a) read with
ss 1, 5, 6, 7, and 17 of the Domestic Violence Act 116 of 1998 (‘the DVA’).
[3] The guilty plea was tendered in terms of s 112(2) of the Criminal Procedure
Act 51 of 1977 (‘the CPA’).
[4] The appellant was sentenced as follows:
(a) Count 1: 10 years imprisonment;
(b) Count 2: three years imprisonment;
(c) Count 3: two years imprisonment; and
(d) Count 4: three years imprisonment.
[5] The sentences on counts 2, 3, and 4 were ordered to run concurrently with
the sentence on count 1.
Issues on appeal
[6] The issues on appeal are:
(a) whether the sentence is harsh and induces a sense of shock; and
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(b) whether the court a quo over emphasi sed the nature of the offence , and
interest of society paying insufficient attention to the appellant’s personal
circumstances.
[7] At the heart of the appeal is the appellant’s contention that the appellant
should have received a lighter sentence by virtue of his family having paid
compensation of two goats for a cleansing ceremony.
Facts
[8] The facts are set out on the record and derived from the appellant’s statement
in terms of s 112 of the CPA.
(a) The appellant and F[...] M[...] (‘complainant 1’) were in a domestic
relationship. Complainant 1 was his fiancée, for whom he had paid lobola.
(b) On 2 9 May 2023 the appellant and complainant 1 w ent out for a drive and
were drinking. The appellant parked at or near Mazithanqaze, where he fell asleep
as he was drunk.
(c) When he came to, the appellant found that complainant 1 was no longer in the
car. He drove to her residence.
(d) Upon his arrival at complainant 1’s residence , he saw her alighting from a
Toyota H iace Quantum (‘the Hiace ’). The Hiace was driven by M[...] M[...]
(‘complainant 2’), complaint 1’s ex-fiancé. The appellant, upon seeing complainant 1
in the company of complainant 2’, assaulted complainant 2 with a wheel spanner.
Complainant 2 ran away leaving his Hiace behind.
(e) The appellant got into the Hiace and set it in motion . The Hiace was
deliberately crashed into the bush, in order that it sustain damage. Whilst in motion,
the appellant jumped out of the vehicle . Still armed with the wheel spanner , the
appellant then assaulted complainant 1 and dragged her along the ground.
(f) These events of 29 May 2023, relate to counts 1, 2 and 3.
(g) Count 4 relates to a protection order obtained against the appellant by
complainant 1 , from the Magistrates Court , Camperdown, on 7 September 2022.
That order was to interdict the appellant from assaulting, abusing, threatening , or
That order was to interdict the appellant from assaulting, abusing, threatening , or
insulting complainant 1. The order was served on the appellant on the same day, ie
7 September 2022.
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(h) On 30 September 2022 , and at Nemvula Tavern, the appellant assaulted
complainant 1, by hitting her with an open hand on her face. At the time he knew the
protection order was in place.
[9] The magistrate duly accepted the s 112 statement , and found the appellant
guilty on all charges. The matter was postponed for sentencing. On 26 July 2024 the
appellant was sentenced as set out above.
[10] This appeal is against the sentences set out above.
[11] During the course of the argument before us, it was conceded by the
appellant’s representative that the real issue as regards sentence , is the sentence of
10 years in respect of count 1, which is at the heart of this appeal.
Analysis
[12] The 10-year prison sentence in count 1, is a minimum sentence in terms of
s 51(2)(b) of the Criminal Law Amendment Act 105 of 1997 (‘the CLAA’).
[13] Assault with intent to do grievous bodily harm falls under Part 3 of Schedule 2
of the CLAA, where the victim is or was in a domestic relationship as defined in s 1
of the DVA, with the perpetrator. By virtue of the provisions of the CLAA, read with
Schedule 2, the minimum sentence applicable was 10 years.
[14] In the appeal, both the appellant and the State referred and relied on S v
Malgas.1
[15] The appellant argued that the sentence imposed by the magistrate is
‘disproportional to the crime’.2
[16] In Malgas, the court, when considering the legislatures views on prescribed
periods among prisoners , set out the purpose as being ‘to elicit a severe,
standardised and consistent response from the Courts’.3
1 S v Malgas 2001 (1) SACR 469 (SCA) (Malgas).
2 Malgas paras 22 and 25I.
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[17] The State specifically argued further that minimum sentences are not to be
‘departed from lightly and for flimsy reasons.’4
[18] It is clear that when considering sentence, the court a quo considered the
appellant’s personal circumstances. These personal circumstances are summari sed
as part of the judgment of sentencing and , accordingly, it cannot be said that they
were not taken into account.
[19] The court a quo was clearly aware of the seriousness of the crimes, and
specifically mentioned that counts 1 and 4 were of a domestic nature and highlighted
that ‘our country is under attack with acts of abuse against our women and children
almost on a daily basis ‘.5
[20] It is apposite to quote the preamble to the DVA, which is a good indicator of
the legislatures view on domestic violence:
‘RECOGNISING that domestic violence is a serious social evil; that there is a high incidence
of domestic violence within South African society; that victims of domestic violence are
among the most vulnerable members of society; that domestic violence takes on many
forms; that acts of domestic violence may be committed in a wide range of domestic
relationships; and that the remedies currently available to the victims of domestic violence
have proved to be ineffective;
AND HAVING REGARD to the Constitution of South Africa, and in particular, the right to
equality and to freedom and security of the person; and the international commitments and
obligations of the State towards ending violence against women and children, including
obligations under the United Nations Conventions on the Elimination of all Forms of
Discrimination Against Women and the Rights of the Child;
IT IS THE PURPOSE of this Act to afford the victims of domestic violence the maximum
protection from domestic abuse that the law can provide; and to introduce measures which
seek to ensure that the relevant organs of state give full effect to the provisions of this Act,
and thereby to convey that the State is committed to the elimination of domestic violence’.
3 Malgas para25C.
4 Malgas para 25D.
5 Record at 36, lines 16 and 17.
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[21] The South African Law Reform Commission (SALRC), in an issue paper
which reviewed ‘the criminal law response to violence perpetrated within domestic
relationships’,6 and this included amendments to the DVA , the CLAA, and other
legislative instruments, stated as follows:7
‘The Constitution embraces the ethos of the African Charter on Human and People’s Rights,
which entered into force on 21 October 1986, particularly the protection of the rights of
women and children in international declarations and conventions. South Africa’s accession
to the African Charter on 9 July 1996 was accompanied by a declaration. The Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the
Maputo Protocol) recalls that:
“Women’s rights have been recognised and guaranteed in all international human
rights instruments, notably the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms
of Discrimination Against Women and its Optional Protocol, the African Charter on
the Rights and Welfare of the Child, and all other international and regional
conventions and covenants relating to the rights of women as being inalienable,
interdependent and indivisible human rights.”’ (Footnotes omitted.)
[22] To this the SALRC continued within the issue paper to point out that the
Maputo Protocol further endeavours as follows:8
‘It further strives to, among others, eliminate gender-based violence against women. Article 4
of the Protocol calls upon all States Parties to enact and enforce laws to prohibit all forms of
violence against women; to adopt legislative, administrative, social and economic measures
as may be necessary to ensure the prevention, punishment and eradication of all forms of
violence against women; and to punish the perpetrators of violence against women and
violence against women; and to punish the perpetrators of violence against women and
implement programmes for the rehabilitation of women victims.’ (Footnotes omitted.)
[23] This court highlights the SALRC Issue Paper 42 as it not only details the
systemic and endemic nature of domestic violence, but it also recognises that victims
are often faced with personal structural barriers, which result in the withdrawing from
6 South African Law Reform Commission Issue Paper 42 (Project 100) Domestic Violence: The
Criminal Law Response (2021) (SALRC Issue Paper 42) at 4.
7 SALRC Issue Paper 42 para 14. The SALRC quoted from the preamble of the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo
Protocol).
8 SALRC Issue Paper 42 para 15.
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processes which give rise to consequences which bear no relation to the future
needs of the victims.9
[24] As was said by Wallis JA in Director of Public Prosecutions, Western Cape v
Prins and Others:10
‘No judicial officer sitting in South Africa today is unaware of the extent of sexual violence in
this country and the way in which it deprives so many women and children of their right to
dignity and bodily integrity and, in the case of children, the right to be children; to grow up in
innocence and, as they grow older, to awaken to the maturity and joy of full humanity. The
rights to dignity and bodily integrity are fundamental to our humanity and should be
respected for that reason alone. It is a sad reflection on our world, and societies such as our
own, that women and children have been abused and that such abuse continues, so that
their rights require legal protection by way of international conventions and domestic laws,
as South Africa has done in various provisions of our Constitution and in the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act).’ (Footnotes
omitted.)
[25] The argument raised in the appeal that there were substantial and compelling
circumstances to deviate from the prescribed minimum sentence, is primarily based
on the so-called compensation and payment of the two goats for the purposes of the
cleansing ceremony. This type of argument was considered S v Amerika ,11 where
Henney J stated as follows:
‘[21] Given the unique and somewhat unusual circumstances of this case an argument may
therefore be made out that, due to the situation in which the victim found herself, in firstly
deciding not to lay a criminal complaint against the perpetrator, secondly by having forgiven
the perpetrator, and by subsequently having resumed the relationship with the perpetrator,
that such conduct may serve as a mitigating factor or a consideration to conclude whether
that such conduct may serve as a mitigating factor or a consideration to conclude whether
there are substantial and compelling circumstances to deviate from the prescribed
sentence. Would it be in the interests of justice for a court do so, where the victim acted in
such a manner due to the abuse that she had been subjected to?
[22] In my view, I do not think it can be regarded as a mitigating factor or as a consideration
to conclude whether there are substantive and compelling circumstances to deviate from the
9 SALRC Issue Paper 42 para 30.
10 Director of Public Prosecutions, Western Cape v Prins and Others [2012] ZASCA 106 ; 2012 (2)
SACR 183 (SCA) para 1.
11 S v Amerika 2017 (1) SACR 532 (WCC). Footnotes omitted.
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prescribed sentence. This would clearly send out the wrong message and would be contrary
to the values of the Constitution. It would furthermore undermine the dignity and humanity of
abused women in this country. It would send out the message that men who make
themselves guilty of spousal abuse or partner abuse by raping their partners will escape the
full might of the law. In my view, rape committed in the context of an abusive relationship,
should be regarded as an aggravating factor in the consideration of an appropriate
sentence.’
[26] Whilst this court accepts that in S v Amerika the court was considering an
appropriate sentence after having convicted the accused of rape , the commentary
regarding the interaction of a personal relationship with domestic violence, as quoted
above, highlight that in this appeal the compensation, or a cleansing ceremony, can
in no way affect the applicability of the prescribed minimum sentences in the present
circumstances.
[27] In a review of a matter, purely dealing with domestic violence, the Western
Cape High Court in Van As v Additional Magistrate Cape Town and Others stated:12
‘[49] Lately, the legislature recognised the exigency to augment the existing protection
provided by the Domestic Violence Act to the victims of domestic and gender -based
violence who are amongst the most vulnerable members of our society. The reason is that
South Africa is currently immersed in the worst kind of social evil, i.e. gender -based
violence, which has reared its ugly head. The deliberate intervention by the legislature for
reform of the existing laws to afford effective and rapid response to gender -based violence
is most certainly desirable. Hopefully, it would eventually lead us to the ultimate obliteration
of patriarchal comportment and total enhancement of the minimized dignity of women and
girls in our society.
[50] Having regard to the constitutional provisions, particularly the right to equality and to
[50] Having regard to the constitutional provisions, particularly the right to equality and to
freedom and security of the person and the international commitments and obligations of the
states towards ending violence against women and children, including obligations under the
United Nations Conventions on the Elimination of all Forms of Discrimination Against
Women and Rights of the child (Preamble of the Domestic Violence Act 116 of 1998 as
amended, Context and purpose of the Act). In response to a call made as recently as May
2021, by the United Nations Committee on the Elimination of All forms of Discrimination
against Women (CEDAW/C/ ZAF/ IR/1 12 May 2021), which South Africa had ratified
12 Van As v Additional Magistrate Cape Town and Others [2023] 4 All SA 231 (WCC).
9
without reservation in December 1995. See South Africa Law Reform Commission, Issue
Paper 42, Project 100, Domestic Violence; The Criminal Response, 8 December 2021, page
15 paragraph 17 . In essence, the legislature has as a result effected an overhaul of
the Domestic Violence Act to be more responsive to the need to afford maximum protection
to women and girls who are exposed to domestic and gender -based violence. This is clearly
propelled by the global quest for the creation of a specific crime or offence of domestic
violence. South Africa is appropriately taking heed of that call.’
[28] Van Rooyen in an article discussing the legislatures responden ce to gender
based violence,13 also discussed the inclusion of domestic violence in the minimum
sentencing legislation concludes with the following:
‘There are many reported instances where the criminal justice system has failed to protect
victims of gender-based violence. In some tragic incidents, victims continued to suffer horrific
ordeals or even paid with their lives after they had requested assistance from the police and
courts. Both Acts promote the commitment of the government to prevent the re -occurrence
of these incidents. It conveys the message that gender -based violence will not be tolerated
and perpetrators will be dealt with decisively to ensure that victims are afforded the
protection that they deserve.’
[29] It is with the aforegoing in mind that this court examines the arguments raised
on appeal , and evaluates the arguments against the legal mores of society taking
into account the Zinn triad.14
[30] The court a quo was quite clearly aware of the Zinn triad and the court’s
obligation to the community. The magistrate specifically recorded: ‘the Courts here
are constitutionally bound to protect citizens rights, especially women and children ’. As
regards the appellant in question , the magistrate came to the conclusion that :
regards the appellant in question , the magistrate came to the conclusion that :
‘Society needs protection from the likes of the accused that (sic) has total disregard to
human dignity’.
[31] The court a quo thereafter found that there were no substantial and
compelling reasons that warrants departure from the prescribed minimum sentences.
Upon a conspectus of the authorities above, this court also comes to the conclusion
there are no substantial and compelling reasons to deviate from the minimum
13 M van Rooyen ‘Legislative developments’ (2022) 7(1) Just Africa 8 at 10.
14 S v Zinn 1969 (2) SA 537 (A) (Zinn) at 540G.
10
sentence which was imposed nor was there any misdirection by the magistrate in
this regard.
[32] A further issue which has been raised in the appeal , is the length of time
which the appellant has spent in custody, and it was contended that the length of
time constitutes a substantial and compelling reason to deviate from the prescribed
minimum sentence.
[33] In the circumstances of this case, it must be noted that the appellant, when he
appeared on 29 April 2024, indicated his intention to plead not guilty to all charges.
The subsequent delays in the matter were occasioned by the appellant’s attempts to
have the charges withdrawn (particularly in light of the payment of the two goats in
compensation and for the cleansing ceremony).
[34] Any delays in the finalisation of this matter were never at the instance of the
State, they were factors which were brought about by the conduct of the appellant.
This sort of conduct was specifically considered in S v Ludidi and Others ,15 where
the court stated:
‘[13] It is now trite law that in respect of finite sentences there is no hard - and-fast rule as to
the weight to be afforded to presentencing incarceration. It is but one of the factors to take
into consideration when determining the existence of substantial and compelling
circumstances. In addition, a sentencing court should take into account the reasons for the
prolonged period of detention prior to sentencing.
[14] In S v Solomon and Others , commenting on the effect of lengthy presentencing
incarcerations on life imprisonment, Rogers J endorsed the view of Goosen J, as he was
then, in S v Kammies . The conceptual difficulty with a sentence that has no determinate
maximum period was acknowledged. A court cannot approach a life sentence as anything
other than a sentence which is imposed for the rest of that person's life. It cannot be
“reduced” by the period spent in custody awaiting trial and it would be improper for a court to
take into account the possibility of parole. Goosen J suggested that the most appropriate
course of conduct would be to antedate the sentence. In Solomon the court held that life
imprisonment means a sentence which extends for as long as that person is alive. Absent
the prospect of parole, a person “would not have been released sooner on the hypothesis of
no interval between arrest and sentencing”.’
15 S v Ludidi and Others [2024] ZASCA 162; 2025 (1) SACR 225 (SCA).
11
[15] This court, in dealing with a sentence of life imprisonment in S v Ngcobo, confirmed that
the period spent in custody before conviction and sentencing is not, on its own, a substantial
and compelling circumstance. It is merely a factor in determining whether the sentence
imposed is disproportionate and unjust. It was held that the two years spent in custody would
make a minimal impact on a sentence of life imprisonment and did not render the sentence
shockingly disproportionate.’ (Footnotes omitted.)
[35] The very conduct of the appellant in attacking both complainants with a
wheel spanner, clearly highlights why the court a quo found him to be a person from
which society requires protection , and given the circumstances of this case, it is
indeed fortunate that no deaths emanated from the appellant’s conduct.
[36] It must be emphasi sed that sentencing is within the discretion of the court a
quo and, in this regard, S v Bogaards16 states:
‘[41] Ordinarily, sentencing is within the discretion of the trial court. An appellate court's
power to interfere with sentences imposed by courts below is circumscribed. It can only do
so where there has been an irregularity that results in a failure of justice; the court below
misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence
is so disproportionate or shocking that no reasonable court could have imposed it. A court of
appeal can also impose a different sentence when it sets aside a conviction in relation to
one charge and convicts the accused of another.
[42] The state is correct that, absent any other constitutional issue, the question of sentence
will generally not be a constitutional matter. It follows that this court will not ordinarily
entertain an appeal on sentence merely because there was an irregularity; there must also
be a failure of justice. Furthermore, this court does not ordinarily hear appeals against
be a failure of justice. Furthermore, this court does not ordinarily hear appeals against
sentence based on a trial court's alleged incorrect evaluation of facts. For instance, this
court will not, in the ordinary course, hear matters in relation to sentence merely because
the sentence was disproportionate in the circumstances. Something more is required. It is
evident that this matter involves important constitutional questions in relation to whether the
Supreme Court of Appeal failed to meet the requirements of the substantive notion of
fairness encapsulated in s 35(3) of the Constitution, by effectively increasing the applicant's
sentence without giving him prior notice that it was considering an increase in sentence, and
whether the common law ought to be developed in order to give formal recognition to the
practice of giving notice when considering an increase in sentence. It is these constitutional
issues which seize this court with the requisite jurisdiction.’ (Footnotes omitted.)
16 S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC).
12
[37] There is no irregularity in this matter, particularly as the court a quo imposed a
minimum sentence in accordance with the CLAA. This does not induce any sense of
shock. The court a quo in a considered manner and without misdirection imposed
the minimum sentence and, accordingly, that is not a basis to appeal the sentence.
[38] In addition, it is clear that the court a quo clearly considered all of the relevant
factors, and did not misdirect itself and, accordingly, there is no basis in law to
interfere with the discretion of the court a quo.
[39] In all the circumstances , there is no reason to find that there was any
misdirection by the court a quo, and there is no reason to interfere with the sentence.
In the circumstances, the appeal will fail, and I make following order:
1. The appeal against sentence is dismissed.
2. The sentences on counts 1, 2, 3, and 4 of the court a quo, are confirmed.
_______________________
HARRISON J
I agree.
_____________________
E BEZUIDENHOUT J
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Appearances
For the Appellant: Mr. S Khumalo
Instructed by: MKHIZE PR ATTORNEYS
Address: 63 Dale Road, Manor Gardens
Glenwood
Durban
4000
Tel: 079 660 5242
Email: senzonelson07@gmail.com
For the Respondent: Ms Banda
Instructed by: STATE ADVOCATE
DPP – KWAZULU NATAL
PIETERMARTZBURG
Email: ckander@npa.gov.za
Date reserved: 28 February 2025
Date of delivery: 24 October 2025