OFF IC E OFTI I E C III EF J UST I C R
ll EPU HI..I C O F SOUTII A FRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
CASE NO.: A34/21
BEFORE THE HONOURABLE JUSTICE LANGA(J) e/t MALANGENI (AJ)
Date: 1 am February 2026
In the matter between;:_01. ;; .. , :; .. \.,:'~".·
I
• n 1050 )(11122 MlddelbUI.,
Private Bag ' AP ELLANT
And 2026 -02- \ 8
THE STATE RES ONDENT
·• ,L r· V tSIU•••
CQU~T ORDER---
---
The Judge heard the matter on the 17thOctober 2025 and electronically circulated
the judgment on the 18th February 2026, gave an order in paragraph "22" as
follows:
I therefore propose the following order:
1. The appeal against sentence is dismissed.
2. The sentence of life imprisonment is hereby confirmed.
------------------------------REGISTRAR ~ fTI A(;OC-v-Ll'
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG
CASE NO: A34/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED: NO
SIGNATURE
In the matter between:
18/02/2026
DATE
ZWELI INNOCENT MKHIZE
and
THE STATE
APPELLANT
RESPONDENT
This judgment was handed down electronically by circulation to the parties and/or
parties' representatives by email. The date and time for hand-down is deemed to be
18 FEBRUARY 2026 at 10h00.
JUDGMENT
Malangeni AJ et Langa J
Introduction
[1] The appellant notes an appeal against the sentence of life imprisonment
imposed by the Regional Court sitting at Amersfoort, ("the court a quo"), on 12
December 2019. He is relying on his automatic right of appeal in terms of section
309(1 )(a) of the Criminal Procedure Act 51 of 1977, ("the CPA").
[2] The appellant appeared before the court a quo on one count of rape in
contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007, as amended, read with the provisions of section 51 (1) of
the Criminal Law Amendment Act 105 of 1997 ("the CLAA") and another count of
kidnapping.
[3] It was alleged that he had unlawful sexual intercourse with the complainant
more than once, and further that he took her to his place against her will. The appellant
pleaded not guilty to the charges. His basis of defence was that the sexual intercourse
was by consent, and further that he went with the complainant to his place by
agreement.
[4] The State led evidence of two witnesses, and the appellant was the only
witness to his defence. The appellant was convicted on both counts and was
subsequently sentenced to life imprisonment. For purposes of the sentence, both
counts were treated as one.
Grounds of appeal
[5] The grounds of appeal can be summarised as follows:
5.1 That the sentence of life imprisonment is harsh and disturbingly shocking and
induces a sense of shock.
5.2 That the principles of punishment were not considered when life imprisonment
was imposed on the appellant as a first offender.
5.3 That the honourable court erred by not taking into account the appellant's
personal mitigating factors cumulatively to find that compelling and substantial
circumstances were present.
2
5.4 That the court a quo failed to blend the sentence with mercy under the
circumstances and in terms of the principles of sentencing.
Personal circumstances
[6] The appellant's personal circumstances, as placed on record, are that he is 34
years of age, unmarried, with no dependants. Before his arrest, he was working in
Middelburg at one of the mines, earning R2 000.00 every second week.
The applicable legal principles
[7] It is trite law that a court of appeal has no wide boundaries when it comes to
the interference with the trial court's sentencing powers. This Court must ascertain
whether or not the trial court exercised its discretion judicially and properly. The
correct approach on an appeal against a sentence was set out in S v Pi/lay, 1 as
follows:
"As the essential enquiry in an appeal against sentence, however, is not whether the
sentence was right or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially, a mere misdirection is not by itself sufficient to entitle
the Appeal Court to interfere with the sentence; it must be of such a nature, degree,
or seriousness that it shows, directly or inferentially, that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably. Such a misdirection is
usually and conveniently termed one that vitiates the Court's discretion on sentence."
[8] The question as to how the appeal court interferes with the sentence imposed
by the trial court was stated clearly in S v Bogaards: 2
" ... where there has been an irregularity that results in the 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."
1 S v Pi/lay [1977] 4 All SA 713 (A); 1977 (4) SA 531 (A) at 535E-G.
2 S v Bogaards 2013 (1) SACR 1 (CC) para 41.
3
[9] From the reading of the above-mentioned authorities, it is clear that the appeal
court's powers are limited. The limitation is premised on the fact that sentencing is
discretionary. In S v Kgosimore,3 it was held that:
"11 is trite law that sentence is a matter for the discretion of the court burdened with
the task of imposing the sentence. Various tests have been formulated as to when a
Court of appeal may interfere. These include whether the reasoning of the trial court
is vitiated by misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock or whether there is a striking
disparity between the sentence imposed and the sentence the Court of appeal would
have imposed. All these formulations, however, are aimed at determining the same
thing; viz whether there was a proper and reasonable exercise of the discretion
bestowed upon the court imposing sentence. In the ultimate analysis this is the true
enquiry. (Compare S v Pieters 1987 (3) SA 717 (A) at 727G-I). Either the discretion
was properly and reasonable exercised or it was not. If it was, a Court of appeal has
no power to interfere; if it was not, it is free to do so."
Applicability of the provisions of the CLAA
[1 O] It is common cause that the appellant has been convicted of rape that falls
within the ambit of section 51 (1) of the CLAA, as it was rape more than once. This is
cited in the charge sheet as applicable in this matter. The law dictates that a
prescribed sentence be imposed unless there are substantial and compelling
circumstances existing in proceedings. In such circumstances, the court may deviate
from the application of the prescribed sentence. Courts are encouraged not to deviate
for flimsy reasons.
[11] In Price and Another v S,4 the court held that the correct interpretation of
section 51 meant that the section limited but did not eliminate the court's discretion in
imposing a sentence in respect of certain offences. The courts should therefore be
imposing a sentence in respect of certain offences. The courts should therefore be
mindful when sentencing specific crimes that legislation has established a new
benchmark against which the sentence to be imposed must be assessed. The courts
are required to apply a severe, standardised and consistent response to relevant
3 S v Kgosimore 1999 (2) SACR 238 (SCA) para 1 0.
4 Price and Another v S [2003] 4 All SA 26 (SCA).
4
crimes in question unless convincing reasons justify otherwise. The court held that
prescribed sentences are not to be departed from for flimsy reasons. The only
instance in which departure would be justified is if the circumstances relevant to
sentencing were substantial and compelling.
[12] The issue of substantial and compelling circumstances was further dealt with
in S v Malgas,5 where the court stated that:
"If the sentencing court on consideration of the circumstances of that particular case
is satisfied 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."
Analysis
[13] In the proceedings under discussion, a member of a vulnerable group (a
woman) was raped and kidnapped by a male person. This constitutes gender-based
violence. This court takes judicial notice that offences of this nature are prevalent
countrywide. The complainant has rights enshrined in the Constitution which include
but are not limited to the following:
13.1 Section 10, which provides that: "Everyone has inherent dignity and the
right to have their dignity respected and protected"; and
13.2 Section 12(1 ), which states that: "Everyone has the right to freedom and
security of the person, which includes the right -
(a) Not to be deprived of freedom arbitrarily or without just cause;
(b) To be free from all forms of violence from either public or private sources."
[14] The appellant negatively interfered with the enjoyment of such rights by the
complainant. It is on record that the complainant is a lesbian in terms of her sexuality.
As the trial court stated in its judgment for sentence that: "You in the first place
assaulted this complainant and thereafter you raped her more than once and as the
prosecutor pointed out, this complainant's sexual preference is not to have sexual
5 S v Ma/gas 2001 (1) SACR 469 (SCA) at 471C.
5
intercourse with men, her lifestyle is one of or is a lesbian lifestyle. So definitely this
incident was a humiliating experience for her". This clearly means that the appellant
deprived the complainant of her right in terms of section 10. He further caused the
complainant to suffer physical injuries as depicted on the J88 that was exhibited, B, by
the trial court.
[15] It is common cause that the complainant was at an entertainment place when
she was kidnapped and later raped by the appellant. The question is: when will the
women of this country be free to enjoy entertainment without fearing their male
counterparts? In S v Chapman,6 it was held that:
"[Women] have a legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come from work, and to enjoy the peace
and tranquillity of their homes without fear, the apprehension and the insecurity which
constantly diminishes the quality and enjoyment of their lives ... The courts are under
a duty to send a clear message to the accused, to other potential rapists and to the
community: We are determined to protect the equality, dignity and freedom of all
women, and we shall show no mercy to those who seek to invade those rights."
[16] These are fundamental rights that need to be protected by a court of law. The
infringement of such rights is a serious violation.
[17] In paragraphs 9, 10 and 22 of the heads of arguments, the legal representative
for the appellant submitted that:
"The trial court misdirected itself by sentencing the appellant to an effective term of life
imprisonment and it is disproportionate to the offence committed which induces a
sense of shock. The trial court misdirected itself in finding that the personal
circumstances of the appellant, cumulatively, does not constitute mitigating factors
which constitute substantial and compelling circumstances and did not consider the
below circumstances. The appellant prays that the appeal court finds that the sentence
below circumstances. The appellant prays that the appeal court finds that the sentence
of life imprisonment was not in accordance with justice and stands to be corrected. He
further submitted that the court a quo should have found that, cumulatively, the
substantial and compelling circumstances are present in this case. He further
6 S v Chapman 1997 (3) SA 341 (SCA) at 345A-D.
6
submitted that a sentence of 20-25 years' imprisonment would have been justified
under the circumstances."
[18] The State made the following submissions:
"The appellant failed to show that there are compelling and substantial circumstances
to justify deviation from the prescribed minimum sentence. The only submissions he
made in this regard were that the complainant did not suffer serious injuries, and further
that the appellant spent some time in custody. It is submitted that this falls short of
being compelling and substantial circumstances. It is humbly submitted that the court
imposed the right sentence prescribed by the law."
[19s] My view is that the trial court considered the nature of the crime, the interests
of the society, the accused's personal circumstances and the interests of the victim.
The trial court struck a balance between these factors. In respect of the first three
factors, their consideration is in line with S v Zinn,7 and the last factor is supported by
S v 8/aauw. 8 Society views rape as an inhuman crime. In S v C,9 ii was held that:
"Rape is regarded by society as one of the most heinous of crimes, and rightly so. A
rapist does not murder his victim - he murders her self-respect and destroys her feeling
of physical and mental integrity and security. His monstrous deed often haunts his
victim and subjects her to mental torment for the rest of her life - a fate often worse
than loss of life."
[20] The trial court could not find any substantial and compelling circumstances. I
agree with this finding. The appellant's personal circumstances even taken together
with the traditional mitigating factors, constitute ordinary circumstances which in my
view fall short of the substantial and compelling circumstances as envisaged in section
51 (3). On the other hand, the complainant's personal circumstances, coupled with the
fact that she sustained physical injuries and the prevalence of rape offences
fact that she sustained physical injuries and the prevalence of rape offences
countrywide, outweigh the mitigating factors, more especially the appellant's personal
circumstances. In S v Vilakazi, 10 ii was held that:
7 S v Zinn I 969 (2) SA 537 (A).
8 S v Blaauw 2001 (2) SACR 255 (C) at 257O-E.
9 S v C 1996 (2) SACR 181 (C).
1o S v Vi/akazi 2009 (1) SACR 552 (SCA) para 58.
7
"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 'flimsy' grounds that Ma/gas said should be
avoided."
[21] I find that the sentence imposed by the trial court is not influenced by any
misdirection, neither is it appropr iate and disproportiona te. The trial court exercised its
discretion properly and judicially. Therefore, the appea l must fail.
Order
[22] I therefore propose the follow ing order:
1 The appeal against sentence is dismissed .
2 The sentence of life imprisonment is hereby confirmed.
I agree, and it is so ordered
Appearances
M MALANGENI
ACT ING JUDGE OF THE HIGH COURT
MPUMALANGA , MIDDELBURG
MBG LANGA
ACTING JUDGE OF THE HIGH COURT
MPUMA LANGA, MIDD ELBURG
8
For the Appellant:
Instructed by:
For the Respondent:
Instructed by:
Date of Hearing:
Date of delivery:
Advocate MC Mavasa,
Legal Aid South Africa
Emalahleni Local Office
Advocate TB Molefe
DPP's Office,
Middelburg
17 October 2025
18 February 2026
9