IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
Case no: CA &R89/2025
In the matter between:
AZOLA DERRICK MDALI Appellant
and
THE STATE Respondent
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JUDGMENT
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APPELS AJ:
[1] This is an appeal against the sentence of life imprisonment imposed on the
appellant following his conviction on four counts of rape in the East London Regional
Court. The four counts were taken together for purpose of sentence.
[2] The appellant has an automatic right of appeal in terms of Section
309(1)(a) of the Criminal Procedure Act 51 of 1977 by virtue of having been
sentenced to life imprisonment by a Regional Court in terms of Section 51(1) of the
Criminal Law Amendment Act 105 of 1997 (“Act 105 of 1997”).
[3] The imposition of a sentence is solely within the discretion of the trial court. 1
An appeal court may not interfere with a sentence merely becaus e it would have
imposed a different sentence to the one imposed by the trial court. It will only
interfere with that discretion if there is a striking disparity between the sentence and
that which the appeal court would have imposed, in other words if it i s so entirely
disproportionate to what the appeal court would have imposed that it warrants
interference.2
[4] In addition to the aforesaid disproportionality, an appeal court may also
interfere with a sentence upon a finding of a misdirection by the trial court.3
[5] The appellant in this matter had been convicted of more than two offences of
rape and had not yet been sentenced in respect of those convictions. Therefore, in
terms of Section 51(1) read with Part I of Schedule 2(a)(iii) of the Act 105 of 1997,
the prescribed minimum sentence of life imprisonment applied.
[6] Accordingly, the trial court, upon sentencing the appellant, could only deviate
from the prescribed minimum sentence of life imprisonment if it was satisfied that
substantial or compelling circumst ances existed to justify the imposition of a lesser
sentence. The trial court found that no such circumstances existed and therefore
sentenced the appellant to life imprisonment.
[7] The approach in determining whether substantial and compelling
circumstances exist which justify deviation from the prescribed minimum sentence,
was set out in S v Malgas .4 The court held that the traditional factors used to
1 S v Rabie 1975 (4) SA 855 (A) at p857D-E
2 S v Malgas 2001 (2) SA 1222 (SCA) at para 12
3 S v Malgas, supra at para 12
2 S v Malgas 2001 (2) SA 1222 (SCA) at para 12
3 S v Malgas, supra at para 12
4 S v Malgas, supra.
determine an appropriate sentence should still be considered when deciding whether
substantial and compelling circumstances exist.5
[8] The appellant submits that the trial court erred in not giving due weight to his
personal circumstances. It was made clear in S v Malgas,6 that in sentencing an
accused, a court has an “obligation, to consider whether the particular circumstances
of the case require a different sentence to be imposed. And a different sentence
must be imposed if the court is satisfied that substantial and compelling
circumstances exist which ‘justify’…it”.
[9] In this matter, the appellant’s person al circumstances are that he is a 32 -
year-old man, married with three children aged twelve, six and three years. The
children reside with the appellant’s mother in Durban. The appellant was previously
employed as a security guard when the offence in respec t of count 1 was committed
and thereafter he was employed as a taxi driver when the offences in respect of
counts 2, 3 and 4 were committed. He was unemployed at the time of sentencing.
He had no previous convictions.
[10] In S v Malgas the court held that th e prescribed sentences ought not to be
departed from lightly and for flimsy reasons. 7 In S v Vilakazi ,8 the court held as
follows regarding personal circumstances of an accused and departing from
prescribed minimum sentences for “flimsy reasons”:
“The p ersonal circumstances of the appellant, so far as they are disclosed in the
evidence, have been set out earlier. In cases of serious crime the personal
circumstances of the offender, by themselves, will necessarily recede into the
background. Once it becom es 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
themselves 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.”
5 S v Malgas, supra at para 25F
6 S v Malgas, supra at para 14
7 S v Malgas, supra at para 9
8 S v Vilakazi 2012 (6) SA 353 (SCA) at para 58
[11] There was nothing remarkable about the personal circumstances of the
appellant which could have persuaded the trial court to deviate from the prescribed
sentence. I therefore do not agree that the trial court erred in not giving due weight to
the personal circumstances of the appellant.
[12] The appellant submitted that the trial court placed too much emphasis on the
seriousness of the offence. I do not agree. In my view, the trial court in sentencing
the appellant placed appropriate emphasis on the seriousnes s of the offences, and
gave due consideration to all the other circumstances impacting on the appellant.
There is no doubt that rape is a serious offence. In S v Chapman 9 the Supreme
Court held as follows regarding the nature and seriousness of the crime of rape:
“Rape is a very serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity and the person of the victim.”
[13] The appellant also submitted that the sentence induced a sense of shock
with reference to the personal circumstances of the accused.
[14] As stated above, there is nothing remarkable about the personal
circumstances of the accused and in light of the seriousness of the offences, his
personal circumstances must recede into the background.
[15] Furthermore, there are number of aggravating circumstances which in my
view make the imposition of life imprisonment entirely appropriate and justified in this
matter.
[16] Firstly, the accused is a serial rapist. He committed four rapes over a period
of seven months. He committed the offences in respect of count 2, five months after
he was arrested in respect of count 1. The offences in counts 2, 3 and 4 were
committed over a period of two months while he was out on bail in respect of count
1.
[17] Secondly, the acc used raped the complainant in respect of count 1, by
pointing a firearm at her and threatening that he would shoot and kill her if she
resisted.
9 S v Chapman 1997 (3) SA 341 (SCA) at para 3
[18] Thirdly, all the offences were carefully planned. The accused lured the
complainant in respect of count 1 with the promise of a job interview, and in respect
of counts 2, 3 and 4 he offered the complainants lifts in a motor vehicle while he
worked as a taxi driver. In all four cases he took the complainants to secluded bushy
areas where he raped them.
[19] Fourthly, two of the complainants were very young. In this regard, it is
notable that the complainants in respect of counts 2 and 4 were in high school at the
time and only 16 years old when the offences were committed. The complainant in
respect of count 4 was in grade 11. The rape affected her to such an extent that she
failed grade 11. During the ordeal, she begged and pleaded with the appellant not to
rape her and even told him she was 12 years old in the hope that he would take pity
on her and decide not to rape her.
[20] Finally, the appellant showed no remorse. He pleaded not guilty to all four
counts and made the complainants re -live the trauma of the events by testifying in
court and subjecting them to cross examination. He persisted in presenting a false
version in court, even in the face of overwhelming evidence.
[21] The test for when the prescribed sentence may be departed from was
expressed as follows in S v Malgas:10
“If the sentencing court on consideration of the circumstances of the particular case
is sa tisfied that they render the prescribed 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, it is entitled to impose a lesser
sentence.”
[22] In S v Vilakazi11, the court held that the test set out in S v Malgas essentially
means that “ it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all the circumstances of the
particular case , whether the prescribed sentence is indeed proportionate to the
particular offence.”
particular offence.”
[23] Given the seriousness of the offences committed by the appellant and the
aggravating circumstances set out above, I do not find that the sentence was
10 S v Malgas supra at para 25
11 S v Vilakazi, supra at para 15
shocking and dispro portionate to the crime or disproportionate to any sentence that
this court would have imposed on the appellant.
[24] The appellant also submitted that the trial court did not give due regard to
the to the fact that the accused has been in custody since his arrest on counts 2, 3
and 4 in 2022 and has spent three years in custody while awaiting trial. The time
spent in custody prior to conviction and sentence was raised as a compelling and
substantial circumstance justif ying a deviation from the prescribed minimum
sentence.
[25] In dealing with a sentence of life imprisonment, the Supreme Court of Appeal
held in Ncgobo v S, 12 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 further held that two years spent in custody would make a minimal impact on a
sentence of life imprisonment and did not render the sentence shockingly
disproportionate.13
[26] The trial court therefore did not misdirect itself when it found that the period
spent in custody before sentencing did not a mount to substantial and compelling
circumstances justifying a deviation from the prescribed minimum sentence of life
imprisonment.
[27] I am therefore not of the view that the court a quo misdirected itself in
relation to the sentence imposed on the appellant.
Order
[28] Accordingly, the following order is issued:
[1] The appeal against sentence is dismissed.
[2] The sentence imposed by the court a quo is confirmed.
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G APPELS
ACTING JUDGE OF THE HIGH COURT
12 Ngcobo v S 2018 (1) SACR 479 (SCA) para 14.
13 Ngcobo v S, supra at para 21
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J LAING
JUDGE OF THE HIGH COURT
Heard: 3 September 2025
Delivered: 9 September 2025
APPEARANCES:
For the appellant: Mr. H. Charles
Instructed by: Legal Aid South Africa
MAKHANDA
For the respondent: Ms. H. Obermeyer
Instructed by: The Director of Public Prosecutions
94 High Street
MAKHANDA