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[2026] ZAMPMHC 32
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Zuma v S (A25/2020) [2026] ZAMPMHC 32 (27 February 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MIDDELBURG
CASE NO: A25/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE 27/02/2026
SIGNATURE
In the matter between:
MONDLI INNOCENT
ZUMA
APPELLANT
and
STATE
RESPONDENT
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for the
hand-down is deemed to be the 26 February 2026 at 10:00.
JUDGMENT
Malangeni AJ
Introduction
[1]
The appellant appeared before the Ermelo
Regional Court (“the Court a quo”) facing the following
counts:
1.1
Kidnapping.
1.2
Rape – read with the provisions of
section 51(1) of the Criminal Law Amendment Act 105 of 1997 (“the
CLAA”).
1.3
Rape
–
read with provisions of section 51(1) of
the CLAA.
[2]
He was convicted in respect of all counts
and subsequently received the following sentences:
2.1
For Count 1, he was sentenced to five
years’ imprisonment.
2.2
For Count 2, he was sentenced to fifteen
years’ imprisonment.
2.3
For Count 3, he was sentenced to Life
imprisonment.
2.4
The court
a
quo
ordered the sentences imposed to
run concurrently.
[3]
The appellant hereby notes an appeal
against the sentence in respect of Count three only .
Grounds of Appeal
[4]
The appellant contends that an effective
term of life imprisonment is strikingly inappropriate in that it is
out of proportion to
the accepted facts in mitigation.
[5]
It is further contended that the court
erred in over-emphasising the following factors:
5.1
The seriousness of the offence.
5.2
The interests of the society.
5.3
The retributive element of sentencing.
The Applicable Law
[6]
It is trite that section 51(1) of the CLAA
prescribes a sentence of life imprisonment for rape committed in the
circumstances as
in the present case. Section 51(3) of the same Act
states that the court can deviate from imposing the minimum sentence
if there
are substantial and compelling circumstances.
[7]
As
to what is meant by “substantial and compelling circumstances”,
it is not clearly defined. Each case will be decided
on its own
merits. What is of utmost importance is that deviation should not be
granted under ordinary circumstances. In
S
v Malgas
[1]
the court held that the prescribed sentence is not to be departed
from for flimsy reasons. The only instance in which departure
would
be justified is if the circumstances relevant to sentencing were
substantial and compelling. The court went on to say the
following:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[2]
[8]
In the same breath, at paragraph 12, the
same court stated that:
“…
even
in the absence of material misdirection, an appellate court may yet
be justified in interfering with the sentence imposed by
the trial
court. It may do so when the disparity between the sentence of the
trial court and the sentence which the appellate Court
would have
imposed had it been the trial court is so marked that it can properly
be described as ‘shocking’, ‘startling’
or
‘disturbingly inappropriate’.”
[9]
The
appeal court always respects a sentence imposed by the trial court on
the basis that the sentencing is a matter for the discretion
of the
trial court. In
S
v Rabie
[3]
the legal position was put as follows:
“
1.
In every appeal against sentence, whether imposed by a Magistrate or
a Judge, the court
hearing the appeal-
…
(b)
should be careful not to erode such discretion; hence the further
principle that the
sentence should only be altered if discretion has
not been ‘judicially and properly exercised’.
2.
The test under (b) is whether the sentence
is vitiated by irregularity or misdirection or is disturbingly
inappropriate.”
[10]
What
has been stated above was restated in
S
v Pillay
,
[4]
where the court said:
“
As
the essential inquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong, but whether the
Court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree
or seriousness that it shows, directly or
inferentially, that the
court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection
is usually and
conveniently termed one that vitiates the Court’s decision on
sentence.”
The Arguments
[11]
In his heads of arguments, the legal
representative for the appellant submitted that:
“
The
trial court misdirected itself in finding that the appellant’s
personal circumstances cumulatively do not constitute mitigating
factors which constitute substantial and compelling circumstances and
did not consider the below circumstances;
(a)
That the appellant is still relatively
young, at the age of 32 years.
(b)
That there are a good prospect of
rehabilitating the appellant without sentencing him to life
imprisonment.
(c)
That the appellant does not have a good
educational background and this might have contributed to his
conduct.
(d)
That the failure to take into account the
considerable period spent in detention is a further misdirection,
entitling this court
to interfere in the sentence imposed.
(e)
That the court
a
quo
emphasized the fact that the
appellant committed the offences just three months after his release
on parole for same offences.
That made the court to impose the
sentences in a spirit of anger.
(f)
That the court
a
quo
emphasised the seriousness of the
offences and the interest of society (particularly the protection of
women) over the personal
circumstances of the appellant.
(g)
That the court also emphasized the fact
that the appellant did not show any sign of remorse. The court
a
quo
did not give reasons on record
justifying an inference that the appellant did not show any remorse.
(h)
That the court misdirected itself in not
finding that the sentence of life imprisonment has the effect of
breaking the appellant.”
[12]
The State Counsel made the following
written submissions:
“
That
the sentence imposed cannot be seen as shockingly inappropriate in
the light of the following aggravating factors:
(a)
The prevalence of the offences of rape
throughout the country.
(b)
The appellant threatened the complainant
with a knife and said that if she tried to run, he would kill her.
After he had raped her,
he told her that he is HIV positive.
The appellant refused to
take any responsibility for his actions and displayed no remorse.
Nothing in the evidence showed that he
accepted the seriousness of
what he had done and intended to make such amends as lay in his
power. It is quite clear that in the
case currently before the court,
there is no remorse, no regret and therefore no hope of
rehabilitation. The appellant’s
continued denial of guilt is a
strong indication of a lack of motivation to change and an
unwillingness to take responsibility
for the offence.”
Analysis
[13]
In
imposing appropriate sentences, the sentencing court has to consider
what was said in
S
v Zinn
[5]
where the court said that in imposing a sentence, the court must
consider “the triad consisting of the crime, the offender
and
the interests of society”.
[14]
The court must strike a balance among these
three factors so that one factor may not be over-exercised at the
expense of the other
or others.
[15]
The
trial court, in its judgment, mentioned having considered the
accused’s personal circumstances, the nature of the offence
and
the interests of society. It must be emphasised that when it comes to
sentencing, there is no formula; each case must be decided
on its own
facts. It is trite that the appeal court’s powers are limited
and that sentencing is discretionary. In
S
v Kgosimore
,
[6]
it was held that:
“
It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing the sentence. Various
tests
have been formulated as to when a Court of appeal may interfere.
These include whether the reasoning of the trial court is
vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock
or whether
there is a striking disparity between the sentence imposed and the
sentence the Court of appeal would have imposed.
All these
formulations, however, are aimed at determining the same thing; viz
whether there was a proper and reasonable exercise
of the discretion
bestowed upon the court imposing sentence. In the ultimate analysis
this is the true enquiry. (Compare
S v
Pieters
1987 (3) SA 717
(A) at 727G-I).
Either the discretion was properly and reasonably exercised or it was
not. If it was, a Court of appeal has no
power to interfere; if it
was not, it is free to do so.”
It
is common knowledge that gender-based violence is the leading offence
in the country. The appellant was on parole when he committed
the
other two rapes. In our country, there is no single day that passes
without hearing about an offence of this nature. Women
and children
are not safe at all. They are deprived of their rights to equality,
human dignity and bodily integrity. Rape is undoubtedly
a repulsive
crime which is humiliating, degrading and invasive of the privacy,
dignity, and person of the victim. In
S
v Chapman
[7]
the
court stated the following in the often quoted passage:
“
Rape is a profoundly
serious offence, constituting as it does a humiliating, degrading,
and brutal invasion of the privacy, the
dignity, and the person of
the victim. The rights to dignity, to privacy, and the integrity of
every person are basic to the ethos
of the Constitution and to any
defensible civilization. Women in this country are entitled to the
protection of these rights. They
have a legitimate claim to walk
peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from
work, and to enjoy the peace and
tranquillity of their homes without the fear, the apprehension and
the insecurity which constantly
diminishes the quality and enjoyment
of their lives”.
[16]
Women
are members of the community. They form part and parcel of a
vulnerable group. It is then safe to say that gender-based violence
negatively affects the community. In
S
v Msimanga and Another
,
[8]
the court held that violent conduct in any form can no longer be
tolerated, and courts, by imposing heavier sentences, convey the
message, on the one hand, to the prospective criminals that such
conduct is unacceptable and, on the other hand, to the public
that
the courts take the restoration and maintenance of safe living
conditions.
[17]
It is on record that the appellant is 32
years old. He is single with no children. In 2009, he was sentenced
to 15 years for a rape
offence. He was released on parole a few
months before the commission of these offences.
[18]
From what was submitted by the legal
representative for the appellant, I cannot find any element of
remorse. The fact that he committed
the rapes in question in three
months’ time whilst on parole for a rape charge is an
aggravating factor. It further shows
that he is a person who cannot
change. He is a person who has completely lost respect for the rights
of women. He is a person who
deserves, rightly so, to be removed from
society for the rest of his life for the safety of women. From his
behaviour there appears
to be no chance for the appellant to be
rehabilitated. His conduct of committing two rape cases on the same
day and three months
after his release on parole rules out any
rehabilitation and calls for substantial imprisonment.
[19]
During the aggravation stage, the trial
court engaged the state as to how many times the complainant was
raped in respect of count
2; the state indicated that the evidence
does not prove rape more than once. The court accepted that and
sentenced the appellant
to 15 years. The appellant is not a
first-time offender, as he was once convicted of rape. He is a danger
to society and is a candidate
to be removed from society.
[20]
I cannot find any fault, misdirection or
irregularity in the sentence imposed by the trial court. It is proper
in the circumstances.
The magistrate exercised his discretion
judicially.
Order
[21]
I therefore propose the following order:
1
The appeal against the sentence is hereby dismissed.
2
The sentence of life imprisonment is hereby confirmed.
M MALANGENI
ACTING JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION,
MIDDELBURG
I agree, and it is so
ordered
MBG LANGA
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION,
MIDDELBURG
Appearances
For
the Appellant:
Advocate
M.C Mavasa
Legal
Aid of South Africa, Mbombela Local Office
For
the Respondent:
Advocate
B.E Maoke
DPP’s
Office, Middelburg
Date
heard:
17
October 2025
Date
delivered:
26
February 2026
[1]
S
v Malgas
2001 (1) SACR 469 (SCA).
[2]
Ibid
para 25I.
[3]
S
v Rabie
[1975] 4 All SA 723
(A) 724; 1975 (4) SA 855 (A) 857 D-F.
[4]
S
v Pillay
[1977] 4 All SA 713
(A) 717; 1977 (4) SA 531 (A) 535 E-G.
[5]
S
v Zinn
1969 (2) SA 537
(A) at 540G.
[6]
S
v Kgosimore
1999
(2) SACR 238
(SCA) para 10.
[7]
S
v Chapman
1997(2)
SACR 3 (SCA).
[8]
S
v Msimanga and another
2005 (1) SACR 377
(OPD).