IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION: MAKHANDA
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES
DATE: 10 April 2026____________
SIGNATURE: _________________
CASE NUMBER: CA &R 174/25
In the matter between:
PHELISILE NONGWANA Appellant
and
THE STATE Respondent
Summary: Appeal – rape – consent – sentence – shocking - life imprisonment-Criminal
Procedure Act 51 of 1977 -Criminal Law Amendment Act 105 of 1997 Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007. Appeal dismissed.
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JUDGMENT
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Ntlama-Makhanya AJ (Jolwana J concurring)
[1] On 27 February 2024, the appellant was sentenced to life imprisonment in terms
of section 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA) and
was declared unfit to possess a firearm in terms of section 103 of the Firearms
Control Act 60 of 20 00. This followed his conviction on four (4) charges of rape
by the New Brighton Regional Court, Eastern Cape. He pleaded not guilty, thus
he was found guilty as charged. This appeal came before this Court as an
automatic right to appeal in t erms of sectio n 18(4)(a)(ii) of the Superior Court
Acts 10 of 2013 against sentence only.
[2] The appellant submitted that the sentence of life imprisonment was shockingly
disproportionate to the crime of rape. He asserted that the Court a quo erred by
not finding substantial and compelling circumstances that could have enabled it
to deviate from the prescribed sentence of life imprisonment.
[3] In these circumstances, it had been established that the imposition of sentence is
within the judicial discretion of the Court a quo . The Appellate Court will only
interfere if it is satisfied that the Cour t a quo committed a material misdirection in
the application of the law. 1 Therefore, this is the context within which this Court
will apply and balance the tripartite model of sentencing relating to the nature of
the crime, the personal circumstances of t he appellant/ victim and the interest of
society.2
1 S v Skenjana [1985] ZASCA 10 para 10.
2 S v Dodo 2001 (5) BCLR 423 (CC) para 6.
[4] Before I deal with the question raised in this case whether the Court a quo
misdirected itself, it will be prudent that I set out brief facts without exhausting
them.
BACKGROUND FACTS
[5] The appellant was charged with four (4) counts of rape and sentenced to life
imprisonment. The complainant is partially paralyzed on her right side after
suffering stroke in the year 2021 which left her using a walking crutch to balance
her mobility. On the da y in question, she was from the clinic to fetch her
medication. Thereafter, she passed by her grandmother and uncle’s homestead
at Yashomati Street on 1 November 2022 where there was going to be a
traditional ceremony on Saturday. On that evening, after ta king her medication
she went to sleep in the room where the traditional beer was stored. She then
noticed someone who came through the window into the room, who appeared to
be the appellant. She called Liena and Nosisana (appellant’s girlfriend) and the
appellant responded that there was no one who was going to hear her. The
appellant took off his short and went to the complainant and raped her four (4)
times by “inserting his “thing” (penis) and did “up and down movement” until he
ejaculated”. He was about to do the same for the 5 th time at around 04h45 when
he came and said he wanted the morning’s when Liena knocked and disturbed
him.
[6] There are factual disputes relating to what happened when Liena arrived at the
house. Thus, of importance, as I do no t exhaust the facts, the complainant told
Liena that she was raped by the appellant. Thereafter, they went to KwaZakhele
Police Station and were taken to Dora Nginza Hospital.
[7] This background brings me to the gist of this appeal to identify issues tha t
became contentious in this case.
ISSUES
[8] This Court is required to establish whether:
(i) the sentence was shockingly disproportionate to the crime;
(ii) the Court a quo misdirected itself in the imposition of the sentence;
and
(iii) this Court should interfere and deviate from the imposed sentence.
[9] Pursuant to these issues, to what extent do they unearth the substance of this
appeal?
PARTIES’ SUBMISSIONS
Appellant’s submissions
[10] The appellant, following his sentence to life imp risonment and the declaration of
his unfitness to possess a firearm, submitted that the sentence was shockingly
disproportionate to the crime of rape. He had a consensual intercourse with the
complainant. He did not dispute that he had sexual intercourse w ith the
complainant. He submitted that the complainant initiated sexual intercourse and
was therefore consensual. In addition, he has a girlfriend whom they sat with that
day, and he could have had sexual intercourse with her instead of the
complainant. He submitted that the complainant was naked when family
members arrived in the morning and hence her allegation that she was raped by
him whilst he was fully clothed.
[11] He further contended that the Court a quo misdirected itself and submitted that:
(i) the state failed to consider that there was no evidence depicting
extent of psychological trauma suffered by the [complainant]
because of rape;
(ii) the Court a quo erred in not considering that there has not been
extraneous violence and physical injuries other th an those inherent
to the offence; and
(iii) the court a quo erred in not considering that there were no physical
injuries that were inflicted by the appellant.
[12] In addition, he submitted in mitigation of sentence that the Court a quo could
have found substantial and compelling circumstances relating to the fact that:
(i) He is 50 years old and passed grade 7;
(ii) He has two minor children of 14 and 8 years who were born of the
same mother and receiving a child supporting grant;
(iii) His parents passed away and was currently serving a 5 -year
sentence for car theft which was unrelated to the current offence
of rape;
(iv) The Court should consider the imposition of the sentence which is
less than the prescribed sentence;
(v) Further, the Court a quo should have considered that he had
consumed liquor and
(vi) His previous convictions were not related to the offences
committed in this case.
[13] It is essential to consider the application of the legal framework in this matter.
LEGAL FRAMEWORK
[14] Rape is defined in section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (SORMA) as follows:
‘Any person ('A') who unlawfully and intentionally commits an act of sexual
penetration with a complainant ('B'), without the consent of B, is guilty of the
offence of rape.’
[15] The inclusion of sexual penetration as part of the statutory proh ibition of the
commission of rape consolidates the legislative intention to tighten the grounds
that may be used as a gateway in the interpretation of the crime of rape. In this
regard, sexual penetration is defined as including:
‘any act which causes penetration to any extent whatsoever by:
(a) the genital organs of one person into or beyond the genital organs, anus,
or mouth of another person;
(b) any other part of the body of one person or, any object, including any part
of the body of an animal, into or beyond the genital organs or anus of
another person; or
(c) the genital organs of an animal, into or beyond the mouth of another
person.’
[16] This definition is of value because it was preceded by section 51(3)(aA) of the
Criminal Law Amendment Act 105 of 1997 that provides a foresight into the
circumstances that are essential in the imposition of a sentence. This section
rejects any form of reason or justification that will be used as a determinant of
substantial and compelling circumstances. The said section reads as follows:
‘When imposing a sentence in respect of the offence of rape the following shall
not constitute substantial and compelling circumstances justifying the imposition
of a lesser sentence:
(i) The complainant's previous sexual history;
(ii) an apparent lack of physical injury to the complainant;
(iii) an accused person's cultural or religious beliefs about rape; or
(iv) any relationship between the accused person and the complainant
prior to the offence being committed.
[17] I must state that these provisions are designed to protect everyone from any form
of violence that undermines their equal worth as prescribed in terms of section 12
of the Constitution of the Republic of South Africa, 1996 (Constitution). In this
instance, section 12 upholds the dignity of everyone to ensure that no one is to
be treated in a cruel and degrading way. Courts are therefore enjoined in terms
of section 39(2) to ensure the promotion of values which underlie an open and
democratic society which is based on freedom and equality.
[18] How does this framework address the main issue of non -consensual sexual
intercourse that emanates from this matte r, particularly on the imposition of a
sentence of life imprisonment following the appellant’s conviction? How far
should the courts go in exercising their discretion in determining a just sentence
relating to the commission of the crime of rape? How shoul d they approach the
issue of interpretation regarding the imposition of a sentence? It is imperative
that I examine the extent to which these questions address the subject of
contention herein.
DISCUSSION
[19] It is settled and well established that the appellate court may interfere with the
decision of a lower court if there is a material misdirection or the sentence
imposed induces a sense of shock. I must state that I will not exhaustively deal
with the factual background that was articulated in the Court a quo which resulted
in the conviction and sentencing of the appellant. I will solely address the
grounds put forth by the appellant whether they constituted substantive and
compelling circumstances that coul d have been considered by the Court a quo.
This is guided by Maya DP in S v Hewitt 3 who located the imposition of
sentencing and held that:
‘It is a trite principle of our law that the imposition of sentence is the prerogative
of the trial court. An appe al court may not interfere with this discretion merely
because it would have imposed a different sentence. In other words, …
[s]omething more is required; it must conclude that its own choice of penalty is
the appropriate penalty and that the penalty chosen by the trial court is not. Thus,
the appellate court must be satisfied that the trial court committed a misdirection
of such a nature, degree and seriousness that shows that it did not exercise its
sentencing discretion at all or exercised it improperly or unreasonably when
imposing it. … And in such instances the trial court’s discretion is regarded as
having been unreasonably exercised. It is against this backdrop that the
question, whether the court a quo exercised its sentencing discretion improperly
or unreasonably in the circumstances of this case, must be determined.’4
[20] The appellant was charged with four (4) counts of rape and was convicted as
charged and sentenced to life imprisonment in terms of section 51(1) of CLAA. It
is also worth menti oning that the appellant made an admission in terms of
section 220 of the Criminal Procedure Act 51 of 1977 (CPA) and confirmed that
he sexually penetrated the complainant and contended that it was consensual.
He further said that the complainant “demanded” sexual intercourse with him.
[21] I am of the view that the legislature was not misguided when it prescribed life
imprisonment as a minimum sentence for the crime which requires the courts to
objectively weigh the circumstances of each case relating to its imposition. It
sought to ensure that the imposition of a severe sentence of life imprisonment
will not be departed from lightly except for established substantial and compelling
circumstances that may justify deviation. Nugent JA in S v Vilakazi 5 cited with
circumstances that may justify deviation. Nugent JA in S v Vilakazi 5 cited with
approval Schedule 2 Part 1 of the Criminal Law Amendment Act 105 of 1997 the
3 S v Hewitt 2017 (1) SACR 309 (SCA).
4 Ibid paras 8-9, (footnotes omitted).
5 S v Vilakazi 2009 (1) SACR 552 (SCA).
listed grounds that justify the imposition of life imprisonment, and which read as
follows:
(i) ‘Where the victim is a girl who is under the age of 16 years;
(ii) where the victim was raped more than once whether by the
accused or by any co-perpetrator or accomplice;
(iii) when the crime was committed by more than one person,
where such persons acted in the execution or furtherance of a
common purpose or conspiracy;
(iv) when the cr ime was committed by a person who has been
convicted of two or more offences of rape, but has not yet
been sentenced in respect of such convictions;
(v) when the crime was committed by a person, knowing that he
has acquired immune deficiency syndrome or the hu man
immunodeficiency virus;
(vi) where the victim is a physically disabled woman who, due to
her physical disability, is rendered particularly vulnerable;
(vii) where the victim is a mentally ill woman as contemplated in
section 1 of the Mental Health Act, 1973; and
(viii) where the crime involved] the infliction of grievous bodily
harm,’6 (emphasis mine).
[22] These grounds are essential in this appeal because they constitute a broad
framework in determining the justifiability of the imposed sentence of life
imprisonment. They are of direct relevance to the mitigating factors that were
submitted by the appellant for consideration by this Court.
[23] In this appeal, the appellant sought to persuade this Court that the imposition of
the term of life imprisonment was shocki ng and disproportionate. His submission
that the complainant “demanded” sexual intercourse with him amounted to
consensual sex was beyond bizarre. Let me reiterate, the appellant’s claim that
6 Ibid para 12 (footnotes (omitted).
the complainant did not only consent but “demanded” sexual inter course is
farfetched and false. He misplaced the impact of the seriousness of the crime
and lied about the complainant having consented to sexual intercourse with him.
[24] In addition, appellant’s Counsel sought to persuade this Court that the
complainant did not suffer any physical injuries because of the rape. I am
perplexed that the absence of violence and non -existence of injuries could be
used as a mitigating factor in a sentence relating to the allegations of the crime of
rape. I am having difficul ty with the appellant’s submission because the absence
of physical injuries was long addressed in section 51(3)(a)(A)(ii) of the Criminal
Law Amendment Act 105 of 1997. This section dispelled any circumstance that
may be used as a ground upon which the abs ence of injuries may be justified.
Madjiet JA in Mudau v S 7 in his endorsement of section 51(3)(a)(A) of the
Criminal Law Amendment Act 105 of 1997 held that:
‘[The] absence of physical injuries should not be interpreted literally because it
would require judges to ignore factors relevant to sentence in crimes of rape
which could lead to the imposition of unjust sentences.’8
The injuries might be minor and not out of ordinary as the appellant’s Counsel
submitted. The scars and emotional trauma suffered by the complainant because
of rape should not be gratuitously thrown out of the scope for the seriousness of
the offence and the impact it had on her. This argument about absence of injuries
undermines the entire legal framework and the principles o f criminal law and is
totally misplaced.
[25] Another submission made on behalf of the appellant was that there was no
evidence that the complainant was undergoing therapy. This ground indicated not
only lack of remorse but also a complete misunderstandin g of the seriousness of
7 Mudau v S 2013 (2) SACR 292 (SCA).
8 Ibid para 26.
the crime of rape. The appellant’s grounds of appeal regarding the non -existence
of evidence depicting the extent of psychological trauma suffered by the
complainant was unfortunate. The legislature was not amiss in the promulgation
of section 51(3)(a)(A) of the Criminal Law Amendment Act 105 of 1997. It moved
beyond physicality to the depth of the impact of the crime of rape relating to
psychological and emotional trauma suffered by victims who had been subjected
to serious crimes s uch as rape. There are established facts and undisputed
medical evidence that the complainant did not suffer serious physical injuries.
These facts do not constitute any justification that the unlawful vaginal
penetration should be discarded into a “hollow ring”. They do not diminish the
fact that the complainant was unlawfully penetrated and therefore violated. The
fact that the complainant was vaginally penetrated four (4) times degraded and
humiliated her which justified the imposition of the sentence of life imprisonment.
[26] The appellant’s personal circumstances and his mitigating factors did not meet
the minimum threshold of establishing substantial and compelling circumstances.
Rape continues to be classified as an “outrageous crime that is meant to destroy,
inflict harm and suffering of the complainant with the consequent result of its
effect on the family and societal interests”. 9 The impact of rape leads to the
decay of the communal and moral fibre that shackles the foundations of the
respect of the humanity of the person.
[27] Non-consensual sexual intercourse was frowned upon even before the
attainment of democracy as a despicable, disgraceful and horrible crime that
undermined the protection of fundamental rights. Lessons are deduced from
Heath J in S v Ncanywa. 10 In that case, Heath J considered the principle of
consent relating to the rape of the wife by her husband. The application of
Ciskeian Law was used as an interpretative legal framework to justify the rape of
Ciskeian Law was used as an interpretative legal framework to justify the rape of
9 Vilakazi (note 5 above).
10 S v Ncanywa 1992 (2) SA (Ck), 26 November 1992.
the wife by her husband . Heath J had analysed the arguments placed before the
Court and held that:
‘… the absence of consent to sexual intercourse could not and ought not to be
ignored. To withhold consent to sexual intercourse unilaterally, …, may be
contrary to marital obligation, but it did not entitle the husband to take the law into
his own hands by having intercourse with his wife against her wiII,’ 11 (emphasis
mine).
Heath J went on to state that:
‘I cannot be party in a judgment which would proclaim to the community t hat by
the law of South Africa and Ciskei in this year 1991, that a man may deliberately,
knowingly and maliciously perpetrate upon the body of his wife the abominable
outrage charged against the prisoner,’12 (emphasis mine).
[28] Heath J foregrounded the content of the purpose of sentence by his analysis of
the principle of consent which then, through the lens of that background enabled
Ponnan JA in S v Matyityi 13 to constitutionalize the substance of the legislative
role in sentencing and held that:
‘Our courts derive their power from the Constitution, and they like other arms of
the state owe fealty to it. Our constitutional order can hardly survive if courts fail
to properly patrol boundaries of their own power by showing due deference to the
legitimate domains of the power of the other arms of the state . Here parliament
has spoken. It has ordained minimum sentences for certain specified offences.
Courts are obliged to impose those sentences unless there are truly convincing
reasons for departing from them. Courts are not free to subvert the will of the
legislature by resort to vague, ill-defined concepts such as "relative youthfulness"
11 Ibid, analysis extracted from Kreigler M “Last month’s law reports” May 1992, Legal Update, De Rebus,
341-343.
12 Ibid.
13 S v Matyityi 2011 (1) SCAR 40 (SCA).
or other equally vague and ill-founded hypotheses that appear to fit the particular
sentencing officer's personal notion of fairness - Predictable outcomes. not
outcomes based on the whim of an individual judicial officer, is foundational to
the rule of law which lies at the heart of our constitutional order.’14
[29] It is essential to note that Ponnan JA restated the significance of the imposition of
a sentence as it was laid down by Marais JA in S v Malgas15 that it falls within the
discretion of the court and should be viewed through an understanding that:
‘… The specified sentences were not to be departed from lightly and for flimsy
reasons which could not withstand scrutiny . … Speculative hypotheses
favourable to the offender, maudlin sympathy, aversion to imprisoning first
offenders, personal doubts as to the efficacy of the policy implicit in the amending
legislation, and like considerations were equally obviously not intended to qualify
as substantial and compelling circumstances. Nor were marginal differences in
the personal circumstances or degrees of participation of co-offenders which, but
for the provisions, might have justified differentiating between them. …’ 16
(emphasis mine).
[30] I must mention that this Court did not take lightly the impact of the severity of the
term of life imprisonment. It was well articulated by Mpati JA in Rammoko v
Director of Public Prosecutions17 who held that:
‘Life imprisonment is the heaviest sentence a person can be legally obliged to
serve. Accordingly, where s51(1) applies, an accused must not be subjected to
the risk that substantial and compelling circumstances are, on inadequate
evidence, held to be absent. At the same time the community is entitled to expect
that an offender will not escape life imprisonment – which has been prescribed
for a very specific reason – simply because such circumstances are,
14 Ibid para 23.
15 S v Malgas 2001 (1) SACR 469 (SCA).
16 Ibid para 9.
14 Ibid para 23.
15 S v Malgas 2001 (1) SACR 469 (SCA).
16 Ibid para 9.
17 Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA).
unwarrantedly, held to be present. In the present matter evidence relating to the
extent to whi ch the complainant has been affected by the rape and will be
affected in future is relevant, and indeed important.”18
[31] I am encouraged by Mpati JA because the courts are required to be cautious in
the exercise of their discretion. This Court will therefore not turn a ‘blind eye’ to
the limitations relating to the imposition of justifiable sentences. It acknowledges
that sentencing courts are not meant to be “slaughterhouses” of those found to
have committed serious crimes. The Court is required to objectively determine
the merits of each case relating to sentence to eliminate what may be viewed as
a sacrifice of the offender on the altar as a form of deterrence of future crimes.19
[32] This Court does not view the protection of people living with disabilities through
the lens of victimhood. Its approach is its advancement of a survivor centred
approach that gives effect to a dignified status of the person and not a continued
perpetuation of stigmatization as a “victim” of rape. The infliction of harm and
humiliation not only took advantage of the complainant but destroyed her dignity
as well. The seriousness of the crime of rape cannot be overemphasised
because the complainant was in the sanctity of an environment that is conducive
for her to live with no fear of being subjected to cruel treatment. Heath J might
have sounded emotional in Ncanywa in distancing himself from being part of a
community that perpetuated the crime of rape against women. However, his
condemnation of the crime of rape in marital relationships was a testimony that
courts should protect the rights of vulnerable members of society. The appellant
exercised his abhorrent dominance in circumstances where the complainant w as
supposed to have been in his safe hands. In all the circumstances, the Court a
quo was correct in its conclusion that the appellant had not established any
quo was correct in its conclusion that the appellant had not established any
substantial and compelling circumstances justifying a departure from the
18 Ibid para 13.
19 See Mthiyane JA in S v Scott-Crossley 2008 (1) SACR 223 (SCA) para 35.
prescribed minimum sente nce of life imprisonment. It stands to reason that the
appellant’s appeal against the sentence of life imprisonment is not justifiable.
[34] As a consequence, the following order is made:
[34.1] The appeal against the sentence of life imprisonment is dismissed.
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N NTLAMA-MAKHANYA
ACTING JUDGE OF THE HIGH COURT
MAKHANDA
I agree
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M JOLWANA
JUDGE OF THE HIGH COURT
MAKHANDA
Delivery: This judgment is issued by the Judge whose name appears herein and is
delivered and submitted to the parties /legal representatives by email. Its date of
delivery is deemed 10 April 2026.
Date Heard: 25 February 2026
Date Delivered: 10 April 2026
Appearances:
Appellant: Advocate DP Geldenhuys SC
Instructing Attorneys: Legal Aid South Africa
Makhanda Local Office
Respondent: Advocate H Mondliwa
Instructing Attorneys: Director of Public Prosecutions
Makhanda