SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A41/2025
HEARD ON: 10 February 2026
JUDGMENT: 23 April 2026
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE : 23 April 2026
SIGNATURE:
In the matter between:
MASIBONGE MPOKELA APPELLANT
AND
THE STATE RESPONDENT
JUDGMENT
STRIJDOM J
1. The appellant and his co-accused were charged in the regional court at Pretoria with
kidnapping (count 1) and rape (count 2) in contravention of section 3 of the
Criminal Law (Sexual Offences and Related Act). 1 Despite his plea of not guilty, he
was convicted as charged.
2. The appellant was accused two during the trial and he was legally represented.
3. During the trial, accused one was referred to Weskoppies Psychiatric Hospital for
observation. The trial proceeded only against the appellant.
4. On 12 August 2024 the appellant was sentenced to five (5) years imprisonment for
kidnapping (count 1) and life imprisonment for rape (count 2).
5. The appellant has an automatic right of appeal in terms of section 309 of the
Criminal Procedure Act 51 of 1977, read with section 10 and 43(2) of the Judicial
Matters Amendment Act 42 of 2013.
6. In the notice of appeal, the appellant appeals against the convictions and sentence.
THE SALIENT FACTS
7. Z[...] N[...] (complainant) testified that on the evening of 13 November 2014 she
and her friends went to Europa Club in Pretoria to celebrate her birthday. Her
boyfriend was at the club and worked as a DJ. She consumed alcohol but
described her state of sobriety as “tipsy” and not drunk. During the evening, she
and her friend. T[...], went out of the club for fresh air. They were approached by
two men who asked if the complainant is feeling well. Accused 1 put the
complainant on his shoulder and carried her to his motor vehicle. T[...] followed
them and entered the vehicle with the complainant. They drove to the nearest
garage and T[...] descended from the vehicle to buy water for the complainant.
While she was at the shop, the driver of the vehicle drove away because he saw
police officers and did not want to be arrested for drunk driving. The complainant
was fighting with the two accused and tried to open the door to exit the vehicle.
She also hit the windows and was threatened by the two accused. The vehicle
stopped somewhere at Groenkloof where she tried to drive away but did not manage
1 Act 32 of 2007
to start the vehicle. Accused one took her to the vel d and raped her. When he was
finished, he called the appellant and told him to “taste” the complainant. The
appellant then raped her.
Soon after the complainant was raped, a police vehicle stopped near them. The
complainant ran to the police officers and reported to them that she was raped. The
police officer put her in the vehicle and ordered the two accused to follow them to
the garage to look for T[...]. They did not find her and went to Europa Club. T[...]
was there and complainant reported to her that she was raped. The complainant
was taken to the police station for a statement and referred to a medical doctor for
examination Complainant testified that she injured her fin ger where a nail was
ripped off when she tried to stop the vehicle.
8. T[...] N[...] D[...] testified that on 13 November 2014 she was with the complainant
at Europa Club. While sitting outside on the sidewalk, they were approached by two
men. One of the two men put the complainant on his shoulder and carried her to
his vehicle. Ms D[...] followed and also got into the vehicle. They said that they will
take them to the nearest garage to buy water for the complainant. At the garage Ms
D[...] was given money and she descended from the vehicle to buy water. While
she was in the shop the vehicle drove away. She then returned to the Europa Club.
Later the complainant arrived with the police and she made a report to Ms D[...] that
she was raped.
9. Gladstone Aphans Khumalo testified that he is a police constable and was on duty
on 13 November 2014. He was with Captain Tshipi in the Groenkloof area when
they saw a vehicle with doors open but no occupants. They stopped at this vehicle
and the complainant approached them. She informed them that she was raped.
The two accused followed the complainant. Constable Khumalo took the driver’s
license of accused one and ordered the two accuseds to follow the police vehicle.
license of accused one and ordered the two accuseds to follow the police vehicle.
They could not find Ms D[...] at the garage and went to Europa Club where they
found her. The complainant reported to Ms D[...] that she was raped. Constable
Khumalo arrested accused one, but the appellant was no longer at the vehicle.
10. Eugene Gordan Seller testified that he is a medical doctor and on 14 November
2014 he examined the complainant. He noted an injury on her right middle finger
where a nail was ripped off. He testified that it was not strange that no injuries were
found on the private parts of the complainant. According to him at least 70% of
rape victims do not sustain injuries.
11. The appellant testified that on 13 November 2014 he was with accused one at
Europa Club. He noticed that accused one and the complainant had a conversation.
At some stage the complainant and one of her friends went outside. Accused one
and the appellant went outside. The complainant said she needs water and they all
got into the vehicle of accused one to buy water at the nearest garage. The friend of
the complainant was given money and she went to the shop to buy water. While
she was in the shop accused one drove away to avoid the police. They drove to
their flat to get more money. The complainant did not want to go with them to the
flat, she wanted to go back to her friend at the garage. Accu sed one drove the
vehicle to Klapperkop where he stopped the vehicle because the complainant
wanted to urinate. Appellant saw accused one and the complainant walked into the
veld where they spent some time. He walked towards complainant and accused one
and saw them having sexual intercourse. The appellant then asked if he could have
sexual intercourse with the complainant. The complainant did not say no and did
not resist when he had sexual intercourse with her. The police arrived and the
complainant then got into the police vehicle. The appellant and accused one
followed the police to Europa Club. Appellant remained in the vehicle while accused
one went with the police and the complainant to her friends while the appellant was
waiting in the vehicle he needed to urinate and exit the vehicle. When he returned
to the vehicle it was gone.
ANALYSIS AND APPLICABLE LEGAL PRINCIPLES
12. The trial court bears the task of anal ysing and evaluating evidence. A court of
appeal is limited in its ability to interfere with the trial court’s conclusions and may
not do so simply because it would have come to a different finding or conclusion.
not do so simply because it would have come to a different finding or conclusion.
13. The above principle was laid down in R v Dlumayo and Another 2 where the court
dealing with the appeal court’s powers stated that:
2 1948 (2) SA 677 (A) at 705
“Ordinarily the appellant in a criminal appeal has to satisfy the appellate court
that the verdict was wrong, at least to the extent that the trial court should
have had a reasonable doubt as to his guilt … Where there has been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct; the appellate court will only reverse it where it is
convinced that it is wrong.”
14. In Pistorius v S3 Boshielo JA at paragraph 30 held that:
“It is a time-honored principle that once a trial court has made credibility
findings, an appeal court should be deferential and slow to interfere
therewith unless it is convinced on a conspectus of the evidence that the trial
court was clearly wrong. R v Dhlumayo and Another 1948 (2) SA 677 (A) at
706; Kebana v S 2010 (1) ALL SA 310 (SCA) para 12. It can hardly be
disputed that the Magistrate had advantages which we, as an appeal court,
do not have of having seen, observed and heard the witnesses testifying in
his presence in court. As the saying goes he was steeped in the atmosphere
of the trial. Absent any positive finding that he was wrong, this court is not
at liberty to interfere with his finding.”
15. It was conceded by counsel for the appellant that the trial court has not misdirected
itself in its factual findings.
16. We have given careful consideration to both the written and oral submissions in
support of the attack on the Magistrate’s reasons. On a conspectus of the evidence
we have not been persuaded that the trial court misdirected itself in any relevant or
material respect in its assessment of the evidence and its findings of fact pursuant
thereto.
17. In our view, the guilt on all two counts was established beyond reasonable doubt by
the witnesses who testified on behalf of the prosecution, assessed against the facts
which were common cause, and the objective circumstances.
18. The full and careful judgment of the Magistrate justified her conclusion that the
18. The full and careful judgment of the Magistrate justified her conclusion that the
evidence given by the appellant could not reasonably possibly be true.
3 2014 (2) SACR 314 (SCA)
THE SENTENCE
19. It is trite that the court of appeal will only interfere with the conviction and/or
sentence of the lower courts if there is a substantial misdirection as to the law or
fact or if the sentences induce a sense of shock or is manifestly inappropriate.4
20. In S v Vilakazi, 5 Nugent AJ, interpreted the determinative test as set out in S v
Malgas 6 as justifying the view that any sentence considered to be dis proportionate
to the offence committed would be justification for the imposition of a lessor
sentence. This is irrespective whether exceptional circumstances exist or not.
21. In S v Malgas 2001 (2) SA 499 (SCA) guidelines for what constitutes substantial
and compelling factors has been set out. In S v Ntsheno, S v Dlanini, S v R 7, the
court was of the view that substantial and compelling factors are all the factors taken
in account in sentencing, or all “everyday factors”.
22. It was submitted on behalf of the appellant that the sentence of life imprisonment on
count two (2) is unjust and would not be consistent with the principle of
proportionality.
23. It was further submitted that the following factors considered cumulatively may be
construed as substantial and compelling: factors which warrant a deviation from the
prescribed life sentence:
23.1 At time of sentence appellant was 39 years old;
23.2 He was 29 years old at the time of the offence;
23.3 He is not married and had three minor children;
4 S v Obisi 2005 (2) SACR 350 (WLD)
5 2009 (1) SACR 552 (SCA)
6 2001 (2) SA 469 (SCA)
7 2010 (1) SACR 295 (GSJ)
23.4 He was employed at Old Mutual as a sales representative and earned
approximately R12 500,00 per month.
23.5 Appellant had one previous conviction of driving under the influence of
liquor which is not relevant to the charge of rape and kidnapping.
24. The following factors can be regarded as aggravating factors:
24.1 Rape is a serious offence and is prevalent in the whole country;
24.2 The complainant was raped by two men, which is regarded as gang rape;
24.3 The rape was planned because the appellant and accused one sent T[...] to
the shop so that they could drive away with the complainant.
24.4 The appellant took advantage of the complainant because she was under
influence of liquor and vulnerable.
24.5 The complainant will live with the trauma and torment of being raped by two
men for the rest of her life.
24.6 The appellant showed no remorse for his actions.
25. In DPP, North Gauteng, v Thabethe ,8 it was held that: “ Rape of women and young
children has become cancerous in our society. It is a crime which threatens the
very foundation of our nascent democracy, which is founded on protection and
promotion of the values of human dignity, equality and the advancement of human
rights and freedoms. It is such a serious crime that it evokes strong feelings of
revulsion and outrage amongst to all right thinking and self -respecting members of
society. Our court s have an obligation in imposing sentences for such a crime,
particularly where it involves young innocent, defenseless and vulnerable girls, to
impose the kind of sentences which reflect the natural outrage and revulsion felt by
the law-abiding members of society as failure to do so would regrettably have the
effect of evading the public confidence in the criminal justice system.”
26. I conclude that the Magistrate was correct in finding that there are no substantial
and compelling circumstances justifying departure from the prescribed sentence.
8 2011 (2) SACR 567 (SCA) 577 G-I
27. I am also of the view that taking in consideration the mitigating and aggravating
circumstances, the sentences imposed is not disproportionate to the crimes, the
offender, the victim and the interest of society.
28. In the result, the following order is made:
1. The appeal against the conviction and sentences is dismissed.
_____________________
Strijdom J
JUDGE OF THE HIGH COURT
I agree
______________________
MOOKI J
JUDGE OF THE HIGH COURT
Appearances:
For the appellant: Adv L Augustyn
Instructed by: Legal Aid South Africa
For the respondent: Adv LA More
Instructed by: Director of Public Prosecutions