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REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL-DIVISION, PIETERMARITZBURG
APPEAL NO: AR 263/24
In the matter between:
MANDLA MZIZI Appellant
and
THE STATE Respondent
ORDER
___________________________________________________________________
In the result, the following order is made:
(a) The point in limine of duplication of charges is upheld. Appellant should have
been charged with one count of rape the p rovisions of section 51(1) of Act
105 of 1997 being applicable as the complainant was raped more than once.
(b) The appeal against the convictions are upheld and replaced with the
following:
“Appellant is convicted on a count of rape in terms of section 51(1) of Act 105
of 1997 in that he raped the complainant more than once.”
(c) The appeal against sentence is upheld and replaced with:
Appellant is sentenced to life imprisonment.
(d) The Appellant is in terms of section 103 read with section 10 and 41 of Act 60
of 2000 declared unfit to possess a firearm.
JUDGMENT
Handed down on 21 April 2026.
Luthuli AJ (P Bezuidenhout J concurring):
Introduction
[1] The appellant was charged in the Regional Court, Izingolweni on two counts of
rape in terms of section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, read with the provisions of section 51(1)
of the Criminal Law Amendment Act 105 of 1997. The appellant was convicted
on both c ounts and sentenced to life imprisonment on both counts. The
sentence is effectively one of life imprisonment. This appeal is against both the
convictions and sentences.
[2] The appellant has an automatic right of appeal in terms of section 309(1)(a) of
the Criminal Procedure Act 51 of 1977 against his convictions and sentences.
[3] The convictions and sentences against which the appellant appeals arise from
events of 17 September 2021. The State alleged that on the 17th of September
2021 at Mqatsheni location in the regional division of KwaZulu -Natal, the
appellant unlawfully and intentionally committed acts of sexual penetration
with M[...] M[...] N[...], who at the time was a female person of 34 years of age,
without her consent. The State alleged that the provisions of section 51(1) of
Act 105 of 1997 are applicable because the complainant was raped by the
appellant more than once. The appellant pleaded not guilty to both counts of
rape.
[4] The appellant made a statement in terms of Section 115 of the Criminal
Procedure Act, 1977, and it reads as follows:
“In the Magistrate’s Court of Izingolweni for the Regional Division of KwaZulu -
Natal, in the matter between the State and Mandla Mzizi. I the undersigned
confirm that I am the accused in the matter, Mandla Mzizi. I had my rights
explained to me against self -incriminating testimony. I plead not guilty to the
offence of rape.
I raise a defence of consent. The complainant and I engaged in a sexual
consummation with each other on the day in question, being 17 September
2021. I had slept and sexually penetrated her once. Prior to the sexual
interaction, I had proposed love to her. I deny having caused her physical
harm in any capacity.
I make this plea freely and voluntarily without any form of duress.”
The facts
[5] The complainant testified that it must have been between 21:30 to 22:00 when
she went to her grandmother’s house where she found the appellant and her
cousins, namely, M[...], T[...] and S[...] indulging in alcoholic beverages. She
knew that she had to go home but decided to keep their company because
they were all going along the same route to her home ultimately. Whilst in the
company of the men, they consumed intoxicating liquor together and she later
indicated to the appellant that she was about to leave and asked if they could
walk together. Whilst enroute at a crossroad, S[...] who was also in their
company had to part ways with the complainant and the appellant to his place
of residence. In doing so, S[...] warned the appellant to “take good care of my
sister”.
[6] As the complainant and the appellant continued to walk together, the latter
suggested that they should go to a BnB, a local tavern to drink some more
alcohol, but the complainant refused and said she wanted to go home and
sleep. At that moment the appellant grabbed the complainant’s arm and
tripped her. Complainant testified that she fell on her back and the appellant
ordered her to undress and referred to her as a bitch. She refused to undress.
He ordered her to open her legs and she refused that too.
[7] Complainant testified further that the a ppellant then strangled her until she
was powerless and that’s when he undressed her whilst strangling her on her
neck. He removed the track -suit pants and tights that she was wearing. She
screamed but as she did, he would tighten his grip on her neck, and she
succumbed. The a ppellant then unzipped his pants and took out his erect
penis and inserted it into her vagina and had sex with her. She would scream
but the a ppellant tightened the strangulation on her neck. The complainant
explained that this was very painful.
[8] The complainant further stated that she tried to fight the appellant off by
pushing him with her knees and managed to escape and ran, but she only
took a few steps, and the appellant tripped her, and she fell on her knees. The
appellant managed to pin her down and ordered her to bend over and then
took out his penis, inserted it into her anus, and performed anal sex on her. On
this occasion too, the appellant was strangling the complainant. According to
the complainant, h e also promised to kill her if she ever told anybody about
what had happened. The complainant stated that she told the appellant that
she would not tell anyone and asked for her clothes back. According to the
complainant, the appellant got off her, and she manage d to get up and r an
away naked from the bottom half. The appellant pursued her with her clothes
on hand.
[9] The complainant testified further that as she ran she met one L[...] S[...] who
asked her what happened. She informed L[...] S[...] that “Mandla is raping me”,
and she ran past L[...] S[...] until she got to the gate at her aunt’s place where
she was initially headed and shouted until her cousins V[...] K[...] and B[...]
P[...] K[...] came out and asked her what happened . She told them that
“Mandla was raping me”. At this stage the complainant was still half -naked.
Mandla made a statement but did not testify as he was seriously ill at the time
of the trial. The complainant’s cousins took her inside K[...] V[...] K[...]’s house
and the appellant followed them, claiming that the complainant was lying, and
that in fact, he found her in the bushes. The appellant offered her a bottle of
Vodka but she snatched the bottle from him and hit him on the head. The
bottle broke when it fell to the ground, and that’s when the appellant fled. The
complainant’s cousins are also related to the appellant and that is how
complainant and appellant know each other.
[10] When the appellant arrived at V[...]’s house, he had complainant’s clothes with
him. V[...] enquired from the complainant what her intentions were ? The
complainant indicated that she wanted the police involved, and the police were
called and they arrived. According to the complainant, the police took her to
the doctor at Thuthuzela, in Port Shepstone where she gave her history and
was examined. The doctor observed injuries in her neck, vagina and anus.
The c omplainant’s history was taken. She had not bathed. That was the
evidence of the complainant.
[11] The complainant was cross-examined at length but stuck to her version. When
it was put to her that the appellant would say he is her boyfriend, complainant
laughed the suggestion off, saying “ it is only in his mind ”. The c omplainant
also brought to the attention of the trial court that the appellant sent his family
members to complainant’s family to apologize and “he even said he committed
this, he was very, very drunk ”. The complainant’s evidence was also that the
appellant did not finish the sexual act the first time around, that’s why he did it
for the second time.
[12] The State called V[...] K[...] K[...] , who is related to both the complainant and
the appellant and knows the two of them from when they were children. She
described how on the night in question she had been suffering from a flu. She
suddenly heard the cries of a person or somebody yelling outside. She c ame
out at almost the same time as B[...] to see what was happening, and she saw
L[...] S[...] at the gate and then immediately saw the complainant, M[...] N[...],
half-naked from her bottom half. She testified that the complainant told her that
“Mandla raped me”. Her evidence was also that the complainant was crying
hysterically. She took the complainant to the house and covered her with a
blanket. The complainant told her what had happened.
[13] When V[...] testified, she gave evidence that the appellant came into the house
with complainant’s clothes and a bottle of Vodka in his hands. According to
V[...], the a ppellant denied raping the complainant and offered the latter the
bottle of vodka and said “here, drink”. V[...] corroborated complainant’s version
that the latter took the bottle of vodka and hit the appellant on the head, and
the bottle broke when it fell to the ground. She further testified that she could
see that the complainant had been drinking but was not a person who was
under the influence of alcohol, whereas the appellant also appeared to have
been drinking but evidently under the influence of alcohol. V[...] was likewise
cross-examined at length by the appellant’s legal representative, and she gave
evidence that the complainant told her that the appellant raped her but did not
specify as to the number of times. She was cross -examined in matters of
culture and cultural taboos and the relationship between the a ppellant the
complainant but V[...] could not give answers to that.
[14] The State then called Dr Zinhle Abigail Ndamase (“Dr Ndamase”) to the stand.
She is a qualified and registered medical doctor of many years of experience,
employed by the Port Shepstone regional hospital and stationed at Thuthuzela
Health Care Centre in Port Shepstone. She holds, among others, a diploma in
Clinical Forensic Medicine from the Colleges of Medicine of South Africa,
2019, over and above her MBChB degree. She is responsible for completing
the J88. Dr Ndamase confirmed the history of the co mplainant as received
from the latter. She confirmed that the complainant informed her that she had
been raped by the a ppellant, a person known to her. The c omplainant had
informed her that she (complainant) had been penetrated by the a ppellant
vaginally and anally.
[15] Dr Ndamase testified that she examined the complainant and found abrasive
marks on the latter’s neck that could have been caused by either a rope or
hands. The examination also revealed fresh injuries in the vagina and
perineum. Upon examination of the anal area, Dr Ndamase found bleeding
during the examination. Her evidence in summary was that the history of the
complainant was corroborated by the outcome of the clinical examination, i.e.
abrasions and lacerations caused by blunt force , and same was consistent
with a person who has been vaginally and anally penetrated without consent.
[16] Under cross-examination, Dr Ndamase expressed limited opinion on matters
that fell outside her expertise. The State closed its case.
[17] The a ppellant testified in his defence. His evidence was that the sexual
encounter he had with the complainant was prearranged. He stated that when
they met outside the complainant’s grandmother’s house things moved quickly
and he proposed love to complainant, and she agreed. According to the
appellant, they took a walk and did not tell the others. Whilst enroute, she was
giving him signs and they decided to have sex right there on the side of the
road. According to the appellant, w hen they finished having sex, he told her
“Now listen, I have to go home to get the money ”. According to the appellant
that is when complainant started to change. She started screaming and crying.
He testified that she thought he was playing her, and that, according to the
appellant, is why she ran in public half naked and reported to L[...] S[...] and
her family (also his family) that the appellant was raping her.
[18] The a ppellant further testified that he went to their family, namely V[...] and
P[...] K[...], because he had nothing to hide. He had an alcoholic drink with him
which he offered to the complainant. He was hit with the bottle of alcohol on
the head by the complainant. He testified further that he went home because
his aunt told him to do so. He stated that the complainant did this because she
got caught and she wanted to keep it a secret because of the age difference
between them. The appellant was 23 years of age and complainant was 34
years of age at the relevant time. He cited a further reason for complainant’s
reason for wanting to keep the affair a secret as being that it is a taboo that
they get involved sexually because they are related. He insisted that he did not
rape the complainant, it was in fact consensual.
[19] Under cross -examination, the appellant introduced a different version, and it
was that complainant reacted in the manner she did because she thought “she
was being played ”. Not that she got caught. Further, on the anal penetration,
in re -examination he was asked “Tell me, when there was this anal
penetration, did you know about it?”, and his answer was yes.
The point in limine
[20] The appellant raised a point in limine that there was a duplication of the
charges in that the appellant should have been convicted of one count of ra pe
and not two counts. The appellant relied on S v Radebe 1 where the court
stated:
“The rule against a duplication of conviction is a rule primarily aimed at
fairness. Its main aim and purpose is to avoid prejudice to an accused
in the form of double jeopardy, that is, being convicted and punished
twice for the same offence when in fact he or she has only committed
one offence.”2
1 2006 (2) SACR 604 (O).
2 Id at para 5. See also S v Bam 2020 (SACR 584 (WCC) at [31].
[21] The a ppellant submitted that the court a q uo misdirected itself when it
convicted the appellant with two counts of rape, pursuant to a finding that on
each count the complainant was raped more than once. The a ppellant
contends that the complainant testified that the appellant raped her twice on
one occasion and not on two occasions. He placed her on her back and
inserted his penis into her vagina and when she got up and tried to run, he
tripped her and raped her in her anus.
[22] The appellant also relied on S v Blaauw3 in support of his contention that only
one act of rape will be committed where the sexual acts of an accused are
closely linked to a single continuing act of sexual conduct. The a ppellant
submitted that in the event this court finds that it was one count of rape
constituting one continuous act, then the rape will fall under the provisions of
section 51(2)(b) of Act 105 of 1997 which attracts a minimum sentence of 10
years imprisonment and would not fall under the provisions of section 51(1) of
Part 1 of Schedule 2 of Act 105 of 1997.
[23] The respondent premises its opposition to the point in limine firstly on the
definition of rape as “any act of sexual penetration with a complainant without
her consent”. The r espondent then submits that in this matter two separate
acts of sexual penetration with the complainant without her consent occurred.
The first act was committed and completed before the appellant was
interrupted by the complainant when she managed the push him off and ran
away. The appellant ran after the complainant, tripped her and raped her in
3 1999 (2) SACR 295 (W); see also S v Tladi 2013 (2) SACR 287 (SCA) at 12.
her anus. When he raped her in her anus, it was the second incident. These
constituted two distinct offences. The respondent further argues that the
conduct of the a ppellant was not one continuous act as he was interrupted.
When the appellant came after the complainant, tripped and penetrated her for
the second time, he had formed a second separate intent to rape her again, so
submitted the respondent.
[24] The question turns on the manner in which the State framed the charges , and
in addressing the question , I borrow copiously from the majority decision in
Molaza v S4, where Opperman J said the following:
“In my view the question of what constitutes proof for the purposes of the 1997
Act was answered authoritatively in Legoa: Each and every fact sought to be
relied upon to trigger the enhanced sentencing jurisdiction provided for in the
1997 Act must be proved beyond a reasonable doubt, along with all the other
elements of the offence. Cameron AJ (as he then was) relied on Moloto in
which robbery with aggravating circumstances was considered. There the
court found that robbery had remained the core offence but facts proving
aggravating circumstances afforded the trial court a discretion to impose the
death penalty. The point is put to bed by Cameron JA at paragraphs 24 and 25
as follows:
“These principles were illuminatingly applied in regard to the 1997
statute’s minimum sentencing provisions in S v Nziyane [reported at
[2000] 2 All SA 391 (T) – Ed]. There the scheduled offence was
possession of a semi -automatic weapon, which for a first offender
similarly carries a minimum 15 year sentence. The charge sheet
averred possession of a Norinco pistol and specified that this was a
semi-automatic weapon. However, in its verdict the trial court, though
observing that it was common cause that a Norinco pistol was in
4 [2020] 4 All SA 167 (GJ)
general a semi -automatic weapon, failed to make a specific finding to
this effect. Only after the conviction was entered did the State lead
expert evidence establishing that the pistol the accused possessed
was in fact a semi-automatic. The Court correctly laid emphasis on the
1997 Act’s requirement that the accused must be convicted of the
scheduled offence. The minimum sentencing provisions therefore did
not apply. Although the Legislature had not created new offences, it
had to appear at conviction that elements in question were present.
Botha J observed (I translate):
‘The words in my opinion convey the meaning that the facts
that must be present to make the minimum sentence
compulsory must be established at conviction in the sense that
they must be included in the facts on which the conviction is
based. (609d)
Botha J concluded that the nature of the weapon was res
judicata after conviction. Where the accused pleads not guilty,
the State’s allegation in the charge sheet puts the matter in
issue at the trial, so that after verdict the State can no longer
lead evidence on the issue (610b – d) These conclusions seem
to me clearly right.’5
[25] Opperman J continued to observe as follows:
“In my view, two counts of rape are not required to trigger the operation
of the minimum sentencing regime as suggested by the Mahlase
dictum. What is required, are two acts of rape. This is so as Part 1 of
Schedule 2 in relevant parts reads, and commences with the word
“rape” in the singular as follows:
“Rape ….
(a) when committed –
5 Molaza v S at para 103
(i) in circumstances where the victim was raped more than
once whether by the accused or by any co -perpetrator
or accomplice…
(ii) by more than one person, where such persons acted in
the execution or furtherance of a common purpose or
conspiracy;
(iii) by a person who has been convicted of two or more
offences of rape or compelled rape, but has not yet
been sentenced in respect of such convictions”
(emphasis added)
To suggest, as Mahlase does that there has to be conviction on a second
count before the minimum legislation is triggered is flawed ….because such a
meaning would render (a)(i) meaningless. The situation contemplated by
Mahlase in (a)(i) is already catered for in (a)(iii) which envisages more than
one count, not necessarily more than one victim. The description of rape as
contained in (a)(i) contemplates more than one rape in a single encounter as
envisaged in Blaauw. The purpose of this description is to accommodate a
situation where the accused committed more than one rape, but not in a single
encounter. If this distinction is not made, the inclusion of a single accused who
rapes a victim more than once in (a)(i) would be rendered meaningless, for
such an accused would always fall under (a)(iii), which contemplates multiple
counts.”6
[26] Then Opperman J concluded as follows, importantly:
“The difference is perhaps academic, because the result will be the same: life
imprisonment. But conceptually there is a difference. Item (a)(i) envisages a
single count and item (a)(iii) envisages multiple counts.”7
[27] Opperman J further referenced S v Maxabaniso8, a case which concerned the
offence of rape as defined in section 3 of Act 2007. The re the accused was
6 See Molaza at paras 104 – 105.
7 Id para 106.
charged with one count of rape, but the charge sheet drew the accused’s
attention to the provisions of section 51 of the 1997 Act. When the charge was
put to the accused, the prosecutor indicated that the State would seek a
sentence of life imprisonment due to the fact that the complainant was raped
more than once. Plasket J (as he then was), distinguished the matter from a
case where the two rapes are separated by a significant period of time of, say
a week or a few months. He held that, where a person is accused of raping the
victim more than once in a single encounter, the correct wa y to charge the
accused is with a single count of rape. The following passage in the
Maxabaniso judgment is instructive:
“[25] In my view the Legislature envisaged an accused being charged with one
count of rape if, in the course of his encounter with his victim, he penetrates
her more than once. The repeated penetration of the victim is what aggravates
the perpetration of the rape and renders him liable for life imprisonment in
respect of his entire course of conduct: it is in other words, multiple acts of
penetration that attract the life sentence.”
[28] Pertinently, Opperman J then concludes as follows in Molaza:
“[117] Does this conclusion imply that the three charges of rape in the present
case were impermissible? Practically, it does not matter whether an accused
person is charged with one count o r three. In either event, the charge should
contain reference to section 51(1) of the 1997 Act and item (a)(i) of Part I of
Schedule 2 so as to inform the accused of “all the elements of the form of the
schedule offence that the State intends to prove; and warn the accused of the
punishment her or she faces if convicted.”
8 2015 (2) SACR 553 (ECP)
[29] On the authority of Molaza, with which I agree, whether the accused faces two
or more counts of rape does not matter, provided he is charged with raping his
victim twice in the same sexual encounter and reference must be made in
each charge that the State would be seeking life imprisonment as
contemplated in section 51(1)(a)(i) in the event of conviction. It is common
cause in this matter that the accused was charged with two counts of rape in
contravention of section 3, read with section 1, 56, 56A, 5 7, 59, 60 and 68 of
Act 2007 and further read with section 51 of Act 105 of 1997 in respect of both
counts. The following is relevant in respect of both counts of rape as appears
from the charges:
“The provisions of Section 51(1) of Act 105 of 1997 are applicable by
virtue of the fact that the rape was committed in circumstances where
the victim was raped more than once by the accused or by his co -
perpetrator or accomplice. As such, the minimum sentence of life
imprisonment is prescribed.”
[30] An accused person who faces a charge of rape where his victim was
penetrated more than once in a single sexual encounter must be charged with
one count of rape and not two, so as to avoid unnecessary confusion and the
difficulties concerning sentencing. But in the end, the result is the same, life
imprisonment.
[31] In the circumstances therefore the point in limine must succeed. Appellant
should only have been c harged with one count of rape in terms of section 51(1) of
Act 105 of 1997 in that the complainant was raped more than once.
On conviction
[32] The complainant maintained throughout the trial that the appellant raped her
twice, and the appellant raised a defence of consent. The appellant submitted
that the evidence regarding the actual incident of rape consists of evidence of
a single witness, the complainant and that such evidence ought to the treated
with caution.
[33] The court a quo determined the question before it to be whether the sexual
encounter between the complainant and the appellant was consensual? The
court a quo sought guidance from S v Chabalala9 where the Supreme Court of
Appeal referred to its earlier decision in S v Van Aswagen and stated as
follows:
“The correct approach is to weigh up all the elements which point towards the
guilt of the accused, against all those which are indicative of his innocence.
Taking proper account of inner strengths and weaknesses, probabilities and
improbabilities on both sides, and having done so, decide whether the balance
weighs so heavily in favour of the State, as to exclude any reasonable doubt
about the accused’s guilt.”
9 2003 SACR 134 (SCA)
[34] The court a quo considered that the complainant’s version is corroborated by
the appellant himself, save for the question of consent and the injuries on her
neck. There was vaginal penetration, and there was anal penetration. This is
common cause. The question is whether or not penetration on both occasions
was by consent.
[35] The court a quo considered the evidence of the complainant, V[...] K[...] K[...]
whom it found to be a neutral witness who is also known to both the
complainant and Appellant, as well as the evidence of Dr Ndamase. The court
a quo found the evidence of the complainant to be clear and credible in every
material respect. To the extent that there was an inconsistency in
complainant’s statement concerning the absence of an allegation of anal
penetration, the court attributed same to poor translation and that such defect
is nevertheless cured by the evidence of the appellant himself who admitted to
penetrating the complainant anally. The court a quo further found that there is
corroboration in the evidence of the complainant with V[...] K[...] K[...] , and
corroboration with the doctor. The court found that where corroboration was
needed and expected, it was presented in the State’s case.
[36] As regards the evidence of the appellant the court a quo found that the
appellant failed to explain the injuries on complainant’s neck. The court also
found that the appellant engaged in a recent fabrication or fabricated evidence
as he went along and that the evidence of the appellant when seen in the light
of the State’s case, was not credible, and therefore not reasonably possibly
true and accordingly rejected.
[37] The court a quo found that on a conspectus of the evidence of the
complainant and the doctor, there were two penetrations in two orifices. The
evidence was vaginal penetration and the appellant confirmed the anal
penetration. There was a start and there was a stop when she fought him off.
There was also a start and stop after he tripped her and penetrated her in her
anus. These, the court a quo regarded a two separate acts.
[38] In S v Blaauw , a case which involved three individual acts of penetration at
more or less the same place and soon after each other, Borchers J stated as
follows:
“Ejeculation is not an element of rape, though it would seem to me that if the
rapist had ejaculated, withdrawn from the victim and then shortly thereafter
again penetrated her, he would on the second occasion be guilty of raping her
for the second time. Not only is there a second act of penetration, but it would
be reasonable to infer that the rapist had formed a new intent to have
intercourse for the second time.”10
and
“Mere and repeated acts of penetration cannot without more, in my mind, be
equated with repeated and separate acts of rape. A rapist who in the course of
raping his victim withdraws his penis, positions the victim’s body differently
and then again penetrates her, will not, in my view, have committed rape
twice.”
“Each case must be determined on its own facts. As a general rule the more
closely connected the separate acts of penetration are in terms of time (ie the
intervals between them) and place, the less likely a court will be to find that a
series of separate rapes has occurred. But where the accused has ejaculated
and withdrawn his penis from the victim, if he again penetrates her thereafter,
it should, in my view, be inferred that he has formed the intent to rape her
10 See S v Blaauw supra fn 3 at 299C.
again, even if the second rape takes place soon after the first and at the same
place.”11 (emphasis added)
[39] In S v Willemse 12, the appellant first raped the complainant vaginally. He then
turned her on her side and raped her anally. There was little to no evidence as
to the time that each of these acts took place, or as to the overall time taken to
commit both acts. The Court concluded that each act must have involved a
distinct thought process during which the appellant decided to rape the
complainant in a different manner to that which he had initially done. By doing
so the appellant formed a completely separate intent to rape the victim in a
different manner, even though it may have occurred reasonably close in time
to the initial act.
[40] in the present matter, e vidence of vaginal penetration was tendered by
complainant and corroborated by the appellant. Evidence of anal penetration
though not contained in complainant’s statement was corroborated by the
appellant. A question arises: whether the State can supplement its case with
facts from the appellant’s testimony when his defence has been rejected? The
court in Molaza dealt with the same question as follows:
“[87]….All of the appellant’s evidence has not been rejected. Only that which
has a bearing on his defence, being one of consensual sexual intercourse.
The appellant’s version was not rejected in toto. A finding on the lack of
consent, is not the same as a finding of a lack of intercourse.
11 Id, at 300A – D.
12 2011 (2) SACR 531 (ECG) at paras [8], [16] and [18].
[88] Had the appellant not testified at all or had his defence been a denial of
the actus reus, a conviction on more than one count of rape might have been
unsustainable by virtue of the paucity of facts. However, he did testify and the
fact that the exculpatory portions of his evidence have been rejected does not,
in my view, lead to the rejection of the incriminatory portions thereof.”
[41] The corroborative evidence of V[...] K[...] K[...] to the effect that the
complainant arrived at the former’s home half -naked and reported
spontaneously that “ Mandla was raping me” and that of Dr Ndamase on the
brut force on the neck, vagina and anal area of the complainant, efforts by the
appellant and his family to apologize to the complainant viewed against
appellant’s failure to explain the injuries on complainant’s neck, vagina and
anus. In addition, the a ppellant’s failure to explain why would complainant run
half-naked in the middle of the night if the sexual encounter was consensual
as well as appellant’s vacillation on the reasons he contends the complainant
reacted the way she did, being first that it was because she got caught as she
wanted to keep the affair a secret, but later the reason changed to “she
thought I was playing her”.
[42] As a result of all of the above I am unable to assail the factual and credibility
findings of the court a quo. The evidence demonstrates an unequivocal lack of
consent to the two incidents of sexual intercourse between the Appellant and
the complainant in a single encounter . The appeal on conviction is therefore
dismissed.
On sentence
[43] In considering the substantial and compelling circumstances found to have
existed and the test to be applied by an appeal court, the following: In S v PB13
Bosielo JA formulated the approach by a Court on appeal against sentence
imposed in terms of the 1997 Act as follows:
“[20] What is the correct approach by a court on appeal against a sentence
imposed in terms of the Act? Can the appellate court interfere with such a
sentence imposed by the trial court’s exercising its discretion properly, simply
because it is not the sentence which it would have imposed or that it finds
shocking? The approach to an appeal on sentence imposed in terms of the
Act should, in my view, be different to an approach to other sentences
imposed under the ordinary sentencing regime. This, in my view, is so
because the minimum sentences to be imposed are ordained by the Act. They
cannot be departed from lightly or for flimsy reasons. It follows therefore that a
proper enquiry on appeal is whether the facts which were considered by the
sentencing court are substantial and compelling or not.”
[44] In S v Vilakazi , Nugent JA said “ it is enough for the sentence to be departed
from that it would be unjust to impose it .” To determine whether or not it would
be unjust to impose the sentence the Court is entitled to consider factors
traditionally taken into account in sentencing and referred to as mitigating
factors.
[45] I turn to deal with the question whether it would be unjust to impose the
minimum sentence imposed by the 1997 Act. The court a quo considered the
following facts:
13 S v PB, 2013 (2) SACR 533 (SCA)
(i) the appellant was 24 years old at the time with no previous
convictions or pending cases;
(ii) the appellant was employed prior to his arrest, albeit in casual
circumstances;
(iii) the appellant is a father to a minor child of six year of age at the
time. The minor child is under the care of appellant’s mother,
because the biological mother of the child is an orphan;
(iv) the appellant supported the minor child when he was working.
The minor child does not receive a child care grant because he
does not have a birth certificate. He confirmed that his mother
and sisters are the primary caregivers of the minor child, and he
was not;
(v) the appellant stated that he was remorseful and that his actions
would not have been the same had he not been drinking. He
conceded under cross-examination that he was feeling sorry for
himself;
(vi) he sought to offer his apologies to the complainant but
maintained that there was no rape;
(vii) he has remained in custody since his arrest;
(viii) the offence charged is very serious;
(ix) the accused is remorseless;
(x) the offence has had a devastating effect on complainant’s family
life in that her eldest daughter no longer respects her because of
what she went through;
(xi) complainant has developed serious trust issue such that she
testified that she does not trust any man, including her own
father whom she clarified, has done nothing wrong to her;
[46] Having considered all of the factors which the court a quo had regard to in
sentencing the appellant, and in the exercise of my judgment I a m unable to
find that the court a quo ought to have found the existence of substantial and
compelling circumstances justifying a departure from the minimum sentences
imposed by Act 105 of 1997.
[47] The appellant falls to be sentenced to life imprisonment in terms of section
51(1) of Act 105 of 1997 read with item (a)(i) of Part 1 of Schedule 2 thereto
for having been convicted of rape with a finding that two acts of rape as
contemplated in Part 1 of Schedule 2 were committed unless substantial and
compelling circumstances are found to exist.
[48] This court is called upon to sentence afresh. For all the reasons referred to
herein I am unable to conclude that substantial and compelling circumstances
are present which would warrant a deviation from imprisonment for life.
In the result, the following order is made:
(a) The point in limine of duplication of charges is upheld. Appellant should have
been charged with one count of rape the provisions of section 51(1) of Act 105
of 1997 being applicable as the complainant was raped more than once.
(b) The appeal against the convictions are upheld and replaced with the following:
“Appellant is convicted on a count of rape in terms of section 51(1) of Act 105
of 1997 in that he raped the complainant more than once.”
(c) The appeal against sentence is upheld and replaced with:
Appellant is sentenced to life imprisonment.
(d) The Appellant is in terms of section 103 read with section 10 and 41 of Act 60
of 2000 declared unfit to possess a firearm.
________________________________
S.M LUTHULI
ACTING JUDGE OF THE HIGH COURT
I agree.
_______________________________
P BEZUIDENHOUT J
JUDGE OF THE HIGH COURT
Heard on : 23 January 2026
Delivered on : 8 May 2026
For the appellant:
Z Fareed instructed by Legal Aid South Africa
For the respondent:
G.E Xulu instructed by National Prosecuting Authority