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[2026] ZAGPJHC 600
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Malatjie v S (A125/2024) [2026] ZAGPJHC 600 (28 May 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
Appeal No:
A125/2024
DPP Ref No:
10/2/5/1-(2024/69)
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
In
the matter between:
MALATJIE,
THAPELO
CLIFF
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Karam
AJ:
INTRODUCTION
1.
The appellant was convicted in the Protea Regional Court on the
following charges:
1.1
count 1 – robbery with aggravating circumstances;
1.2
count 2 – robbery with aggravating circumstances;
1.3
count 3 – rape;
1.4
count 4 – rape;
1.5
count 5 – kidnapping; and
1.6
count 6 – kidnapping.
2.
The robbery counts were read with the provisions of Section 51 (2) of
the Criminal Law Amendment Act 105 of 1997 (“the
minimum
sentence provisions”). The rape counts were read with the
provisions of Section 51 (1) of the minimum sentence provisions.
3.
The appellant was sentenced as follows:
3.1
count 1 – 15 years imprisonment in terms of the minimum
sentence provisions;
3.2
count 2 – 15 years imprisonment in terms of the minimum
sentence provisions;
3.3
count 3 – life imprisonment in terms of the minimum sentence
provisions;
3.4
count 4 – life imprisonment in terms of the minimum sentence
provisions;
3.5
count 5 – 5 years imprisonment;
3.6
count 6 – 5 years imprisonment.
The
sentences imposed on counts 1, 5 and 6 were ordered to run
concurrently with that on count 4.
The
sentence imposed on count 2 was ordered to run concurrently with that
on count 3.
Accordingly,
the effective sentence was life imprisonment.
4.
Leave to appeal was sought in respect of both conviction and
sentence. Same was refused by the court a quo.
5.
The appeal comes before this court by virtue of the automatic right
to appeal the life sentences on counts 3 and 4, conferred
by Section
309 (1) (a) of the Criminal Procedure Act 51 of 1997 (“the
CPA”).
ISSUES
ON APPEAL
6.
The issues to be determined are whether the trial court erred in
failing to find substantial and compelling circumstances,
warranting
a departure from the imposition of the prescribed minimum sentences
of life imprisonment on counts 3 and 4; whether
the sentences imposed
are startlingly inappropriate in the circumstances; and whether the
sentences imposed are disproportionate
in the circumstances.
LAW
AND ANALYSIS
7.
It is trite that punishment is pre-eminently a matter for the
discretion of the trial court. A court of appeal can only
interfere
with the sentence imposed where that discretion has not been
judicially, properly or reasonably exercised, resulting
in
irregularity or misdirection, or where the sentence imposed is
shockingly inappropriate in that it is substantially different
from
that sentence which the appeal court would have imposed.
S
v Pieters
1987 (3) SA 717
(A) at 727 (F) – 728 (C)
S
v Malgas
2001 (1) SACR 469
(SCA) at 478 (d) – 479 (d)
DPP
v Mngoma
2010 (1) SACR 427
(SCA) at 431 (c) – (g)
S
v Grobler
2015 (2) SACR 210
(SCA) at 212 (g) – (i)
AD SENTENCE
8.
The appellant was made aware, prior to pleading, of the implications
of the minimum sentence legislation.
9.
It is common cause that the appellant raped the respective
complainants more than once, placing him squarely within the
ambit of
the minimum sentence
legislation.
10.
A further factor placing him within the ambit of the minimum sentence
legislation, is the fact that he was convicted by
the trial court of
two offences of rape.
11.
The main thrust of the argument by the appellant’s counsel
relates to the submissionsv that the learned Magistrate
failed to
consider the period of incarceration awaiting finalisation of the
matter, being a period of 4 years, and the issue of
remorse. These
submissions are to be considered within the context of the matter.
11.1
Regarding the issue of remorse:
11.1.1
It appears from the trial record that the appellant initially pleaded
not guilty to all counts and made no plea explanation.
It was only
subsequent to the complainant on count 4 having testified in chief,
that the court was advised that the appellant intended
changing his
plea and the matter had to be further postponed for this purpose.
11.1.2
The appellant did not testify as to his alleged remorse. Same was
expressed by his legal representative and the probation
officer.
11.1.3
It is noteworthy that the expressions of alleged remorse in 2024,
pertains to these incidents that occurred in 2011
and 2018
respectively and after the commencement of the trial.
I am
of the view, having regard to the aforesaid, that it cannot be said
that there is true or genuine remorse, as enunciated in
the decision
of
S v Matyityi
2011 (1) SACR 40
(SCA)
at 47 (a) – (d).
11.2
Regarding the period of incarceration:
11.2.1
It is trite that such detention does not, on its own, constitute a
substantial
and compelling factor, but is
one of the factors to be considered.
S v
Radebe & Ano
2013 (2) SACR 165
(SCA) at 170 (b)
DPP
(NG,P) v Gcwala & Others
2014 (2) SACR 337
(SCA) at 342 (d) –
343 (h)
Ncgobo
v S
2018 (1) SACR 479
(SCA) at 483 (b) – (e)
Loyiso
Ludidi & Others v S
2024 ZASCA 162
(SCA) at 228 (c) – 229
(e)
11.2.2
The court a quo ought to have investigated the reasons for the
delays in the commencement of the trial. However, and
notwithstanding
its failure to do so, I am of the view that having regard to the fact
that the court is dealing here with indeterminate
sentences, together
with the other facts and circumstances of this matter, that that
factor alone does not constitute a substantial
and compelling
circumstance justifying a departure from the prescribed minimum
sentences of life imprisonment.
12.
The aggravating factors far outweigh the mitigating factors,
including the following factors:
12.1
the prevalence of the offence;
12.2
the fact that in respect of the incident relating to count 3, the
appellant was in possession of a firearm and having
chased her
boyfriend away, raped the complainant more than once without using a
condom.
12.3
the fact that in respect of the incident relating to count 4, the
appellant was
in the company of his two
friends, the appellant took control of the complainant’s
vehicle, drove to an isolated area where the
complainant and other occupants were
ordered
out of the vehicle, and pointing a firearm at the complainant, the
appellant
instructed her to move to a
remote area where he raped her more than once
without
using a condom.
12.4
the fact that both these incidents happened at night and the
complainants were subsequently left alone in dark and isolated
places, making them vulnerable to further harm.
12.5
Whilst it was submitted on the appellant’s behalf and accepted
by the State that the appellant, ex facie the SAP 69,
has two
unrelated previous convictions for escaping or attempting to escape
from lawful custody in1999, this is clearly not the
case.
12.5.1
Ex facie the SAP 69 there is an endorsement to the effect that the
appellant was released on 27 April 2012 on special
remission of sentence
until 20 October
2015.
12.5.2
This endorsement clearly does not relate to the aforesaid previous
convictions for which the appellant was
respectively sentenced in 1999 to 18 months and 6 months
imprisonment.
12.5.3
This, too, ought to have been investigated by the court a
quo.Accordingly, this court is in the dark as to the nature
of the
appellant’s other conviction/s and sentence/s. Counsel were
unable to assist the court in this regard. Whilst there
is a
reference in the probation officer’s reportof the appellant
stating that he was convicted of 2 counts of robbery, he
goes on to
state that these cases were subsequently withdrawn.
Whilst
this serves to compound the confusion and does not explain the
endorsement, what is significant is that it is clear that
the
appellant has
been in further conflict with
the law.
13. I
am of the view that the learned Magistrate correctly found that there
is nothing substantial and compelling in the appellant’s
personal circumstances.
14.
In
S v Malgas
supra
at 481 (i) – (j) it was stated that the minimum sentence
Legislation aimed at ensuring a severe standardized and consistent
response from the courts and is to be applied unless there are and
can be seen to be truly convincing reasons for a different response.
Further, and at 481 (j) – 482 (a) that the specified sentences
are not to be departed from lightly or for flimsy reasons
which
cannot withstand scrutiny. This has been reiterated by the
superior courts on numerous occasions.
15.
I am of the view that the learned Magistrate properly considered all
the mitigating factors, and correctly found that
same, neither
individually nor cumulatively considered, constitute substantial and
compelling factors.
16.
I am further of the view that the imposition of the minimum sentences
is not disproportionate, considering the facts
and circumstances as
a whole, and does not result in an injustice.
17.
I am further of the view that the learned Magistrate imposed a proper
sentence in the circumstances.
18. Accordingly, I
am of the view that there is no merit in the appeal.
19.
In the circumstances, I propose the following Order:
19.1
The appeal against sentence is dismissed.
W
A KARAM
ACTING
JUDGE OF THE HIGH COURT
I
AGREE AND IT IS SO ORDERED
R
MKHABELA
JUDGE
OF THE HIGH COURT
Appearances:
Appellant:
Adv S Mamoepa with Adv E Guarneri
Legal Aid SA
Johannesburg Office
Respondent:
Adv P T Mpekana
Director of Public
Prosecutions
Gauteng Local Division