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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A468/2010
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
22 April 2026
In the matter between:
ZWELINZIMA MANGALI Applicant
and
THE STATE Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 3 February 2026.
REASONS FOR THE ORDER
KUBUSHI, J
Introduction
[1] The appeal was heard before us on 3 February 2026 , when the following
order was issued:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld.
3. The sentence of life imprisonment is set aside and replaced by the
following sentence:
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“The accused is sentenced to 15 years imprisonment and the sentence is ante
dated to 23 February 2010.”
4. The reasons for the order will follow at a later date.
[2] The reasons for the order follow hereunder.
Background
[3] The appellant , Zwelinzima Mangali, together with other co-accused was
charged with six counts of contravening the provisions of section 3 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 (Sexual
Offences Act ) read with the provisions of section 51(2) of the Criminal Law
Amendment Act, Act 105 of 1997 (the CLAA) together with one count of robbery. The
appellant pleaded not guilty to all the charges but was convicted on counts 4 and 5
and sentenced to life imprisonment.
[4] Count 4 relate s to the rape of K[...] G[...] D[...] (the complainant). The charge
being that she was raped by the appellant and one B[...] O[...] (accused 1). Count 5
on the other hand, related to the rape of K[...] J[...] S[...] (K[...]) who it is alleged was
raped by M[...] B[...] M[...] (accused 5). From the reading of the judgment of the trial
court, it appears as if the appellant was convicted in respect of both count 4 and 5.
However, the evidence on record indicates that the appellant conceded to having
sexual intercourse with the complainant in count 4 and not with K[...], who is the
complainant in count 5 . The evidence of the complainant also indicates that the
appellant raped her. K[...] who is the complainant in count 5 made no allegations of
rape against the appellant.
[5] As such the appellant could not have been convicted on count 5 . Therefore,
for purposes of this judgment, only count 4 will be considered.
[6] In terms of section 309(1)(a) of the Criminal Procedure Act, Act 51 of 1977
(the CPA), an accused sentenced to life imprisonment in the Regional Court, has on
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notice of intention to appeal being given, the automatic right to appeal the
convictions and sentences. The appellant is, thus, before this Court appealing both
the conviction and sentence.
The Evidence
[7] The complainant’s evidence is that on 12 June 2005 (the day in question) she
was with her friends at Bisto Tavern playing pool. At about 19h00 she left the tavern
in the company of her friend K[...]. As already stated, K[...] is the complainant in
count 5. Outside the tavern, K[...] stopped at the gate and the complainant walked
some distance from the tavern. Whilst she was so walking, she was accosted by the
appellant who asked her to go with him . When she refused, the appellant took out a
knife and threatened to stab her and at the same time he hit her with an open hand
on the face. The complainant was as a result forcibly taken to a shack in extension
16 by the appellant. On the way to extension 16, they were followed by K[...] who
was in the company of accused 1 and a ccused 5 . She did not know under what
circumstances K[...] was accompanying the two gentlemen.
[8] When they reached the shack they all went in . The shack had only one room
with no partitions. There was no furniture except a double bed. At that time, she saw
accused 5 busy fondling K[...]. She could not see K[...]’s reaction, but she could hear
her crying.
[9] The appellant ordered her to take off her clothes, but she refused. T he
appellant pushed her to the ground and took off her jeans and then took off his
trousers and underpants and forcibly had sexual intercourse with her. Whilst the
appellant was having sexual intercourse with her, accused 1 wanted to have sexual
intercourse with her as well and the appellant told him to wait his turn. So, when the
appellant finished with her , accused 1 also took a turn and had sexual intercourse
with her without her consent. At the same time the appellant was kissing her.
[10] The complainant was crying and hysterical which caused accused 1 to stop
[10] The complainant was crying and hysterical which caused accused 1 to stop
having sexual intercourse with her. After a short break accused 1 continued to have
sexual intercourse with her and thereafter, the appellant had sexual intercourse with
her for the second time and when he finished accused 1 took another turn. All this
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time she was lying on the floor crying. She stated that both the appellant and
accused 1 did not use condoms.
[11] When all this was happening, K[...] was on the bed with accused 5 and she
could hear her crying . After the ordeal they put on their clothes and wanted to leave
but they were refused to leave . They had to sit together with their assailants whilst
they (their assailants) were chatting to each other. It was at this time that the
appellant told her not to lay charges against him as he will say that she was his
girlfriend. They were only allowed to leave around 22h00 and they went to their
respective homes.
[12] At home, the complainant found her parents asleep, and she went straight to
bed. The following morning, she went to K[...]’s parental home, and they went to the
police station to lay charges. She was taken to the doctor for examination. She did
not report the matter to anyone else except to the police. She only informed her
parents when she came back from the police station.
[13] K[...]’s testimony is that on the day in question she was with the complainant
at Bisto tavern playing pool. They left the tavern at around 19 h00. At the gate they
met the appellant, accused 1 and accused 5. She knew the three gentlemen. At one
time she was accused 1’s girlfriend. The relationship had by then ended. Accused 5
told her to go with him as she was his girlfriend. When she refused, accused 5 hit her
with a belt on her back. She forcibly walked with accused 5 to a certain shack in
extension 16. Whilst on the way to the shack , she asked accused 1 why they were
treating them like they were doing , and he answered by saying she must leave him
alone.
[14] Inside the shack accused 5 instructed her to take off her pants and she
refused. The complainant was also present in the room, and the appellant also
asked her to take off her pants and when she refused, he slapped her. Accused 5
removed her pants and had sexual intercourse with her on the bed without her
removed her pants and had sexual intercourse with her on the bed without her
consent on two occasions. At that time, the complainant was on the floor with the
appellant. She saw the appellant on top of the complainant having sexual intercourse
with her. Thereafter he saw accused 1 get on top of the complainant and had sexual
intercourse with her and the appellant took another turn to have sexual intercourse
with the complainant. At around 22h00 they were told to leave the shack . When she
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arrived home, she was afraid to tell her parents about the ordeal because she was
going to be shouted at . In the morning, she went to fetch the complainant, and they
went together to make a report at the police station . She sustained no physical
injuries.
[15] The appellant’s evidence is that he knew the complainant who was his
girlfriend as from 12 June 2005, which is six months prior to the commission of the
offence. He conceded that he had sexual intercourse with the complainant but that it
was with her consent. He did not rape her.
[16] He also conceded that on the date in question they were at Bisto Tavern. The
complainant arrived at the tavern whilst he was alone, and they sat together.
Accused 1 and 5 arrived and bought beer and they drank together. He left the tavern
with the complainant followed by accused 5 who was accompanied by K[...]. They
went to his brother’s shack. He had asked the complainant to accompany him to the
shack. This is a one room shack which has been partitioned into two rooms.
[17] When they reached the shack, he had consensual sexual intercourse with the
complainant in one of the rooms whilst accused 5 had sexual intercourse with K[...]
in the other room. Accused 5 and K[...] had sexual intercourse on the floor.
[18] After the first round of sexual intercourse, the complainant requested water
and he went to fetch it for her. When he returned with the water, he found the
complainant on top of accused 5. After that they sat together and chatted. He later
on requested the complainant for a second round of sexual intercourse and she
agreed. After the second round she accompanied the complainant to her home . The
following day he came across the police who told him about the rape charge and he
was arrested.
Ad Convictions
[19] The issue before this Court is whether the trial court er red in its finding that
the appellant had sexual intercourse with the complainant without her consent . Put
the appellant had sexual intercourse with the complainant without her consent . Put
differently, the issue is whether the trial court misdirected itself in finding that the
complainant did not consent to the sexual intercourse or in its finding that the
complaint was not the appellant’s girlfriend.
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[20] As regards conviction , the appellant’s main ground of appeal is that t he trial
court erred in finding that the state proved its case beyond reasonable doubt. The
contention was that in considering the peculiar set of facts involved in this matter, the
trial court misdirected itself in finding on the evidence presented that the state had
proved the guilt of the appellant beyond reasonable doubt , and that the evidence
could be relied upon to convict the appellant. In support of this argument , the
reliance was based on what the appellant referred to as material contradictions
between the evidence of the complainant and that of K[...].
[21] The trial court in considering the evidence before it, accepted that there were
some contradictions in the state’s case. However, when considering whether such
contradictions were so material as to destroy the state’s case, it found the
contradictions to be not so material as to have destroyed the state’s case.
[22] I a gree with the trial court’s finding that the contradictions in the state’s
evidence are not material. It is my view that the two state witnesses did not
contradict each other about the commission of the offence itself. Both witnesses
stated that the appellant raped the complainant on two occasions. The contradictions
as I see them are mainly about whether K[...] was talking to accused 1 at the gate at
the time the witnesses were leaving the tavern ; whether the complainant asked for
help from the lady who was around the tavern; whether the appellant was forcing the
complainant to leave the tavern with him, and contradictions as to when it comes to
the report to the police. These in my view are not material contradictions warranting
the destruction of the state’s case.
[23] It should also be kept in mind that the trial court made factual and credibility
findings in favour of the state’s evidence. It found the evidence of the state witnesses
findings in favour of the state’s evidence. It found the evidence of the state witnesses
to be credible and satisfactory in all respects and the story they told was found to be
true. It further made factual finding s that the appellant had sexual intercourse with
the complainant without her consent.
[24] It is trite that appellate courts are reluctant to interfere with the factual and
credibility findings made by trial courts unless there are shown to be clearly wrong or
based on material misdirection. 1 Bearing in mind the advantage that a trial court has
1 S v Monyane 2008(1) SACR 543 (SCA) para 15.
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of seeing, hearing and appraising a witness, it is only in exceptional cases that this
Court will be entitled to interfere with a trial court's evaluation of oral testimony.2
[25] I cannot find the findings of the trial court to be clearly wrong or based on
material misdirection. The complainant’s evidence was corroborated by that of K[...]
in all material respects when it came to the commission of the offence. Both of them
were in the room where the offence was committed. Both testified that the appellant
twice raped the complainant . This was further corroborated by the evidence of the
appellant who conceded that he had sexual intercourse with the complainant twice.
What confirms that the complainant did not consent to the sexual intercourse is that
the two state witnesses both testified that the complainant was crying during the
whole time of the commission of the offence. If the complainant was the appellant’s
girlfriend and had consented to the sexual intercourse , she had no reason to be
crying during such sexual intercourse. If indeed the complainant was the appellant’s
girlfriend, I find it odd that he did not find it offensive when he found the complainant
on top of accused 5 when he came back from fetching water for her.
[26] I have to hold that the trial court correctly found that the sexual intercourse
was without the consent of the complainant , and that the state proved its case
beyond reasonable doubt. The appeal on conviction was as a result dismissed.
Ad Sentence
[27] In the case of S v Rabie3 it was stated by Holmes JA that:
“In every appeal against a sentence, whether imposed by a magistrate or a
Judge, the Court hearing the appeal -
(a) should be guided by the principle that punishment is "pre -eminently a
matter for the discretion of the trial Court"; and
(b) should be careful not to erode such discretion; hence the further
principle that the sentence should only be altered if the discretion has
not been "judicially and properly exercised."
not been "judicially and properly exercised."
2 S v Francis 1991 (1) SACR 198 (A) at 204e.
3 1975(4) SA 855 (A).
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[28] The question , therefore, is whether this Court has the authority to alter the
sentence of life imprisonment imposed by the trial court. Put differently, the question
is whether the discretion of the trial court has not been judicially and properly
exercised.
[29] This Court will only interfere with the sentence imposed by the trial court
‘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.’4
[30] As already stated, the appellant was found guilty as charged in terms of
section 3 of the Sexual Offences Act, read with the provisions of section 51(2) of the
CLAA. Section 51(2) addresses offences in Parts II, III and IV of Schedule 2 , and
provides in relevance that:
“[n]otwithstanding any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person who has been convicted of an offence
referred to in (a) Part II of Schedule 2, in the case of (i) a first offender, to
imprisonment for a period not less than 10 years.” 5
[31] Thus, a sentence in terms of s ection 51(2) of the CLAA is triggered when a
person is convicted of an offence set out in Part II of Schedule 2. Specifically for the
purpose of this matter, in accordance with Part II of Schedule 2, the offence is rape
as contemplated in section 3 of the Sexual Offences Act in circumstances other than
those referred to in Part I.
[32] In this instance, the appellant was charged with and found guilty of rape read
with the provisions of section 51(2) of the CLAA and was sentenced to life
imprisonment. In sentencing the appellant to life imprisonment as it did, the trial court
was persuaded by its finding that the complainant was raped more than once and by
the appellant and accused 1 (what the trial court referred to as gang rape).
the appellant and accused 1 (what the trial court referred to as gang rape).
[33] Life imprisonment would have been appropriate in the circumstances if the
appellant’s rape charge was read with the provisions of section 51(1) of the CLAA or
4 S v Bogaards 2013 (1) SACR 1 (CC) at para 41.
5 10 years was the minimum sentence of imprisonment for a first offender then. Now the period is 15
years.
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if, once such evidence has been proven, an amendment of the charge sheet was
applied for. 6 The Supreme Court of Appeal in S v Legoa ,7 held that under the
common law it was desirable, but not essential, that the charge sheet should set out
the facts the state intended to prove in order to bring the accused within a minimum
sentencing jurisdiction.
[34] This, however, is not what happened in this case. The appellant was charged
on a single incident of sexual intercourse without consent, and even though the
evidence proved that the appellant was sexually penetrated more than once and by
the appellant and his co-accused, proving that the rape ought to have been read with
the provisions of section 51(1) of the CLAA, he was found guilty as charged. That is,
he was found guilty of a single incident of sexual penetration. In terms of section
51(2) of the CLAA , with which the appellant was charged, if found guilty, the
minimum sentence the trial court could impose was 10 years imprisonment because
the appellant was a first offender.
[35] However, in S v Kolea ,8 the Supreme Court of Appeal stated that the term of
imprisonment referred to in section 51(2) of the CLAA is the minimum sentence that
a trial court must impose. The section does not preclude a trial court from imposing a
sentence of imprisonment higher than the said term. In terms of the section, the trial
court is entitled, as it has the jurisdiction to do so, to impose any sentence of
imprisonment, even life imprisonment, as long as the sentence was in excess of the
term stated.
[36] It means that in the present case, if not for the provisions of section 92(1) of
the Magistrates Court Act , Act 32 of 1944 (the Magistrates Court Act) , the trial court
could have been entitled to impose the sentence of life imprisonment, as it did. A
Regional Court derives its sentencing jurisdiction in terms of section 92(1) of the
Magistrates Court Act , which jurisdiction provides for punishment of up to 15 years
Magistrates Court Act , which jurisdiction provides for punishment of up to 15 years
imprisonment. As the trial court when imposing the sentence of life imprisonment
was a Regional Court, it could not impose a sentence in excess of 15 years.
Therefore, in imposing the sentence of life imprisonment, the trial court exceeded its
sentencing jurisdiction, and in that sense, it erred.
6 S v Kolea 2013(1) SACR 13 (SCA) para 16.
7 2003 (1) SACR 13 (SCA) para 14.
8 2013 (1) SACR 409 (SCA) at para 17.
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[37] Additionally, it was argued on behalf of the appellant that if the trial court was
inclined to impose a sentence which is in excess of the prescribed minimum
sentence, it ought first to have informed the appellant of its intention to do so, and to
give the appellant an opportunity to address it on the intended sentence. The trial
court having not done so, the contention, which is correctly made, is that it was not
entitled to impose that sentence, and having done so, it materially misdirected itself.
[38] It is trite that a material misdirection by the trial court vitiates its exercise of its
discretion. In S v Malgas, the Supreme Court of Appeal held that
‘Where material misdirection by the trial court vitiates its exercise of that discretion,
an appeal court is of course entitled to consider the question of sentence afresh. In
doing so, it assesses sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance. As it is said, an appellate court is large.’9
[39] This Court is, thus, at large to look at sentence afresh.
[40] The concession on behalf of the appellant that the matter ought not to be
remitted to the trial court for reconsideration of an increased sentence because it will
serve no purpose due to the length of time spent by the appellant in custody, was
correctly made. The appellant has already served fifteen to sixteen years in custody
and sending the matter back will not be in the interest of justice and of the
appellant’s right to fair trial . This will only result in delaying his release. The
proposition is that this Court should consider sentence on the basis of the record as
it stands. I agree.
[41] The trite traditional factors applicable to sentencing are the personal
circumstances of the offender (this would include mitigating and aggravating factors);
the nature and gravity of the offence; and the interests of society. 10 In determining
the nature and gravity of the offence; and the interests of society. 10 In determining
the sentence to be imposed, the purpose of sentencing, being prevention, retribution,
reformation and deterrence, must also be taken into account.11
[42] Section 51(3) of the CLAA provides as follows:
“If any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser
9 S v Malgas 2001 (2) SA 1222 (SCA) para 12.
10 Ibid at para 25F.
11 S v RO and Another 2010 (2) SACR 248 (SCA) para 30.
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sentence than the sentence prescribed in those subsections, it shall enter
those circumstances on the record of the proceedings and must thereupon
impose such lesser sentence.”
[43] The elements required to prove substantial and compelling circumstances are
those that are generally and traditionally considered when sentence is assessed.
They include the gravity and nature of the crime, the interest of society and the
personal circumstances of the offender.12
[44] The personal circumstances of the appellant tendered in mitigation of
sentence are that: the incident was committed under the influence of alcohol; the
appellant has since after his arrest been incarcerated since 13 June 2005 until 12
March 2007 and further from 18 November 2008 until the date of sentence on 23
February 2010, which is approximately 38 months; the appellant was born on 6 May
1987 and was 23 years old at the time of sentence but 18 years of age at the time of
the commission of the offence; he was not married, had no children and was
unemployed; he had progressed in school to Grade 7; and he was a first offender.
[45] It was argued on behalf of the respondent that the gravity of the offence is that
the offence of rape by its very nature is serious. The seriousness thereof is
aggravated further in this instance by the fact that the complainant was humiliated by
being raped in the presence of her friend and other people. The offence is prevalent
in that such offences appear on the court rolls on a daily basis. Violence against
women and children is rife within the jurisdiction of the trial court and in the country
generally, and campaigns against gender violence do not yield the required
response.
[46] It was further argued that t he actions of the appellant in this instance were
cold, vulgar and inhumane. The complainant was slapped and threatened with a
knife. She was raped by the appellant and his co -accused interchangeably. She was
knife. She was raped by the appellant and his co -accused interchangeably. She was
forced to remove her clothing and made to lie on the cold bare ground with no
protection from her back. Her cries and pleas fell on deaf ears. She was forced to
spend time with her assailants whilst they were still considering whether or not to
release her.
12 S v Abrahams 2002(1) SACR 116 (SCA).
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[47] In the interests of society, it was submitted on behalf of the respondent that
the family members of the complainant in this case were surely also influenced in a
devastating manner, due to the rape of the complainant.
[48] It is my view that there are no substantial and compelling circumstances that
warrants a deviation from imposing the prescribed minimum sentence . Although the
personal circumstances of the appellant in regard to his age at the time of the
commission of the offence and the fact that he was kept in detention for 38 months
awaiting trial, can be regarded as mitigatory factors, however, such factors cannot be
overemphasised over the gravity of the offence and the interests of society.
[49] The circumstances under which this offence was committed are in and of
themselves, aggravating. It is clear that t he offence was planned , it was not
impulsive. The offence was humiliating and degrading in that the complainant was
raped in the presence of her friend and other people, the appellant’s co -accused.
She was made to sit in the company of her assailants whilst they were deciding
whether to release her and K[...]. She was raped more than once, in fact four times,
and interchangeably by two persons – the appellant and accused 1, both did not use
condoms. She was threatened with a knife and slapped with open hands . The
complainant was still incredibly young at the time of the commission of the offence.
She has to carry the scars of this ordeal for the rest of her life. Although the J 88
could not identify any injuries that she physically sustained, it is a known fact that the
consequences of rape are not the physical scars but the resultant trauma that a
survivor carries which might be for life.
[50] When considering the offence, the offender and the interests of society , in
particular the seriousness of the offence, I am of the view that the custodial sentence
of 10 years imprisonment, which as stated, is the minimum sentence to be imposed
of 10 years imprisonment, which as stated, is the minimum sentence to be imposed
in this matter, should be increased.
[51] The suggestion was made on behalf of the appellant that the minimum
sentence of 10 years imprisonment be imposed and that if it is to be increased, in
light of the gravity of the offence , it should be to 15 years because of the trial court’s
sentencing jurisdiction. The suggestion was further that the term of 15 years be
decreased to 12 years by the 38 months the appellant spent in detention awaiting
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trial. I am of the view that a just and proportionate sentence in the circumstances of
this case is a sentence of 15 years imprisonment.
[52] Consequently, the appeal on sentence was upheld and the imposed sentence
set aside and replaced with a sentence of 15 years imprisonment. The sentence was
also ante-dated to the 23 February 2010 as provided for in section 282 of the CPA.
Condonation
[53] The respondent had filed its heads of argument late and condonation thereof
was granted unopposed.
Conclusion
[54] It is under these circumstances that the order issued on 3 February 2026 was
granted.
_________________________
E.M KUBUSHI
JUDGE OF THE HIGH COURT
I concur,
___________________________
ND KEKANA
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES:
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For the Applicant: Adv M Botha
Instructed by: Legal-Aid
For the Defendant: Adv C Pruis
Instructed by: State Attorneys
Date of the hearing: 03 February 2026
Date of judgment: 03 February 2026