REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDG
(3) REVISED: NO
Date: 29 May 2026
In the matter between:
RICHARD LINDA KHUMALO
And
THE STATE
CASE NO.: A268/25
APPELLANT
RESPONDENT
Delivered: This judgment is handed down electronically by uploading it to the electronic file
of this matter on CaseLines. In the event that there is a discrepancy between the date the
judgment is signed and the date it is uploaded to CaseLines, the date the Judgment is
uploaded to CaseLines is deemed to be the date that the judgment is handed down.
JUDGMENT
VAN DER SCHYFF J
Introduction
[1) The appellant, Richard Linda Khumalo, was convicted on 4 April 2025 in the
Regional Court for the Regional Division of Gauteng, held at Nigel, before Magistrate Mweli,
on one count of rape of a minor. The charge was read with the provisions of section 51 of
the Criminal Law Amendment Act 105 of 1997. He pleaded guilty to the charge, and a
statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 was read
into the record.
[2] On 14 August 2025, the appellant was sentenced to life imprisonment. He was
further declared unfit to possess a licensed firearm in terms of section 103(1) of the
Firearms Control Act 60 of 2000, and his name was entered into the National Register for
Sex Offenders in terms of section 50(2) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007.
[3] The court a quo was informed, and the record confirms, that the appellant was at all
material times aware that the charge carried a prescribed minimum sentence of life
imprisonment under Part I of Schedule 2 to Act 105 of 1997. The prosecutor expressly
placed this on record, and it was confirmed by the appellant's legal representative.
Notwithstanding this knowledge, the appellant entered his guilty plea in terms of section
112(2) of Act 51 of 1977.
(4) The appellant appeals against the sentence only, exercising his automatic right of
appeal in terms of section 10 of the Judicial Matters Amendment Act 42 of 2013. He is
represented in this appeal by Legal Aid South Africa. The respondent is represented by the
Office of the Director of Public Prosecutions, Gauteng Division.
Common cause facts
[5) The following facts are common cause between the parties. When the appellant
committed the offence, he was 33 years of age and unmarried. He was in gainful
employment at JJF Constructions, earning approximately RB 000.00 per month, and was
financially contributing to the maintenance of his three minor children, aged 8, 10 and 13
years respectively. He was a first offender. At the time of the commission of the offence,
he had consumed alcohol and was using drugs. He spent one year and six months in pre
trial custody. By entering a guilty plea, he spared the minor complainant the secondary
trauma of having to testify and relive the ordeal in open court. However, conclusive DNA
evidence linked the appellant to the crime.
evidence linked the appellant to the crime.
2
[6] The aggravating circumstances considered by the court a quo included the following:
the profound and lasting disruption caused to the life of the child victim; and the continuous
psychological trauma suffered by the victim's mother.
[7] Having considered all mitigating and aggravating circumstances, the court a quo
found that the aggravating circumstances outweighed the mitigating circumstances and
that no substantial and compelling circumstances existed to justify a departure from the
prescribed minimum sentence. Life imprisonment was accordingly imposed.
The parties' contentions
[8] On behalf of the appellant, it is submitted that the trial court erred in failing to find
that the cumulative effect of the mitigating factors constituted substantial and compelling
circumstances justifying a departure from the prescribed minimum sentence.
[9] In the alternative, it is submitted that even if the individual factors do not collectively
constitute substantial and compelling circumstances, the sentence of life imprisonment is
in any event disproportionate to the facts of this particular offence, and that such
disproportionality itself constitutes a substantial and compelling circumstance.
[1 O] The appellant further contends that the trial court placed excessive weight on the
seriousness of the offence and the interests of society, to the detriment of the appellant's
personal circumstances, resulting in a sentence that is shockingly harsh. It is argued that
life imprisonment is the ultimate sentence available and must not be imposed lightly:
[11] The appellant relies on the following comparative authorities: (a) in S v MN 2011 (1)
SACR 286 (ECG), and in S v MM; S v JS; S v JV 2011 (1) SACR 510 (GNP). The appellant
contends that the court did not put any weight to the time period that the applicant has spent
in custody awaiting trial.
[12] On behalf of the State, it is submitted that the imposition of sentence is pre-eminently
[12] On behalf of the State, it is submitted that the imposition of sentence is pre-eminently
a matter within the discretion of the sentencing court. A court of appeal may interfere only
where it is satisfied that the trial court's discretion was not properly and judicially exercised.
3
[13] Relying on S v Pi/lay, 1 the respondent submits that a mere misdirection is insufficient
to warrant appellate interference; the misdirection must be of such a nature, degree or
seriousness as to show that the court did not exercise its discretion at all, or exercised it
improperly or unreasonably.
[14] The respondent further submits that the court a quo properly considered all three
sentencing considerations : the seriousness of the offence, the personal circumstances of
the appellant, and the interests of society, and committed no irregularity or misdirection.
The aggravating circumstances outweighed the mitigating circumstances, and the
sentence of life imprisonment was appropriate in the circumstances.
[15] In particular, the respondent emphasises that the guilty plea must be assessed in
proper context: the appellant knew from the outset, having been expressly informed by the
prosecutor and confirmed by his own counsel, that he faced a prescribed minimum
sentence of life imprisonment. Furthermore, although the appellant raised alcohol
consumption as a mitigating factor, he himself admitted in his section 112(2) statement that
he nevertheless knew the difference between right and wrong at all material times, which
significantly diminishes the mitigating weight of his intoxication.
Applicable legal principles as to when a court of appeal can interfere
[16] The principles governing appellate interference with sentence are well settled. The
power of a court of appeal to interfere with a sentence imposed by a trial court is limited.
Sentencing is pre-eminently a matter falling within the discretion of the court that heard the
matter. An appellate court is not entitled to set aside a sentence simply because it would
have imposed a different one.
[17] As was stated in S v Anderson a sentence will not be altered on appeal merely
because it would have exercised that discretion differently.2 A sentence will not be altered
because it would have exercised that discretion differently.2 A sentence will not be altered
unless it is held that no reasonable man ought to have imposed such a sentence, or that
the sentence is out of all proportion to the gravity of the offence, or that it induces a sense
1 1977 (4) SA 531 (A) at 535E- F.
2 1964 (3) SA 494 (AO) at 494.
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of shock or outrage, or that the sentence is grossly excessive, or that there was an improper
exercise of discretion by the trial court, or that the interests of justice require intervention. 3
A misdirection warranting appellate intervention must be of such a nature, degree or
seriousness that it shows, directly or inferentially, that the court failed to exercise its
discretion at all, or exercised it improperly or unreasonably. A mere error in the weighing of
factors, without more, does not suffice.4
(18] In S v Malgas5 the Supreme Court of Appeal confirmed that the prescribed minimum
sentencing regime under Act 105 of 1997 fundamentally altered the prior approach to
sentencing in cases to which it applies. A court is not free to depart from the prescribed
minimum sentence merely because it considers a lesser sentence appropriate. Substantial
and compelling circumstances must exist before such a departure is warranted. In
undertaking this enquiry, the court must consider all relevant circumstances cumulatively
and must be satisfied that they are truly substantial and compelling.
[19] In S v Vilakaz/3 the Supreme Court of Appeal makes clear that the prescribed
sentence is not reserved exclusively for the rarest conceivable category of cases, but the
sentencing court must nevertheless undertake a proportionality enquiry based on the facts
of the individual matter.7
Consideration and analysis
[20] We turn to consider whether the court a quo committed any misdirection warranting
intervention, and whether the cumulative mitigating factors amount to substantial and
compelling circumstances justifying a departure from the prescribed minimum sentence.
[21] While a guilty plea is always a mitigating factor, and it undeniably spared the
complainant the further ordeal of giving evidence, it must be accorded its proper weight in
3 495C-E. Also see S v Monyane and Others 2008 (1 ) SACR 543 (SCA).
4 S v Pi/lay 1977 (4) SA 531 (A) at 535E-F
5 2001 (1) SACR 469 (SCA).
6 2009 (1) SACR 552 (SCA}.
5 2001 (1) SACR 469 (SCA).
6 2009 (1) SACR 552 (SCA}.
7 At para 54.
5
context. It is difficult to ascribe great weight to the guilty plea as a mitigating factor in
circumstances where the record discloses that the DNA evidence against the appellant was
overwhelming.
[22] While the appellant expressed remorse, it must be assessed against the objective
facts and the conduct of the accused. Ont e facts before the court, the evidence of remorse
extended no further than a statement to that effect, which is insufficient to give it substantial
mitigating weight.
[23] The appellant related to the social worker that at the time of the incident, he was
under the influence of liquor. However, a critical concession appears in the appellant's own
section 112(2) statement: he admitted that at all material times he knew the difference
between right and wrong. This admission significantly undermines the mitigating value of
his intoxication. Significantly , the appe\lant did not rely on intoxication in his section 112(2)
statement.
[24] The fact that the appellant is a first offender and was gainfully employed whilst
supporting his minor children are personal circumstances that were correctly placed before
the court a quo and were taken into acco nt. While relevant, these factors, carry reduced
weight when balanced against the gravity of the off~nce. 8
[25] The principle that pre-trial incarceration must be given appropriate weight in
determining sentence is well established.9 The record reflects that the court a quo was
aware of the 18 months spent in pre-trial custody. Although pre-trial incarceration must
receive meaningful consideration, the existence of 18 months' pre-trial detention does not,
in the circumstances of this matter and when weighed against the gravity of the offence,
constitute a substantial and compelling circumstance justifying departure from the
prescribed sentence.
[26] The appellant places reliance on S v MN 2011 (1) SACR 286 (ECG) and the trilogy
of matters in S v MM; S v JS; S v JV 2011 (1) SACR 510 (GNP), in which life sentences
of matters in S v MM; S v JS; S v JV 2011 (1) SACR 510 (GNP), in which life sentences
8 S v Vilakazi2009 (1) SACR 552 (SCA) at para 58.
9 Id at para 60.
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imposed for the rape of minors were reduced on appeal. These authorities must, however,
be approached with care. Comparative case law is a guide, not a straitjacket
[27] On a proper analysis of the comparative authorities, it is notable that the cases in
which life sentences were reduced involved specific distinguishing features not present
here. In S v MN (supra), the .court stated that there is no evidence of serious emotional
trauma in the victim. The position in the present matter is materially different. The child
victim's mother described in depth the trauma the child suffered in the victim impact report.
In S v JS (supra), the perpetrator was a young man of 18 years old. In this matter, the
appellant was 33, and the father of 3 minor children
[28] The appellant correctly relies on the principle that mitigating factors must be
assessed cumulatively and not in isolation. We have undertaken that cumulative
assessment. Taking all the mitigating factors together, first-offender status, guilty plea,
remorse, employment , support of children, 18 months' pre-trial incarceration, and the
influence of alcohol and drugs, we are unable to conclude that their cumulative weight rises
to the level of substantial and compelling circumstances . While these factors remain
relevant, they are not uncommon in matters falling within the minimum sentencing regime
and, on the facts of this case, do not cumulatively amount to substantial and compelling
circumstances .
[29] The appellant further relied on S v Vilakazi, supra , in support of the contention that
the prescribed sentence would be disproportionate in the circumstances. However, the
present matter is distinguishable on its facts. In Vilakazi, the court, among others, attached
weight to the fact that the appellant had used a condom,10 thereby reducing certain risks
ordinarily attendant upon the commission of the offence. No similar mitigating feature is
present in this matter. The offence exposed the minor complainant to the physical and
present in this matter. The offence exposed the minor complainant to the physical and
psychological consequences ordinarily associated with sexual violence against children.
While this factor is not decisive in itself, it forms part of the overall assessment of the gravity
of the offence and the proportionality of the prescribed sentence.
10 Vilakazi, supra , at para 55.
7
[30] The appellant also relied on the fact that he is the father of three minor children as
part of his personal circumstances in mitigation. That consideration was properly taken into
account by the court a quo, particularly in light of the appellant's financial responsibilities
toward his dependants. However, the existence of dependants cannot carry decisive
mitigating weight in the sentencing of serious offences involving violence against children.
While the appellant's parental responsibilities remain relevant, they must be weighed
against the gravity of the offence, the vulnerability of the minor complainant, and the
broader interests of society in protecting children from sexual violence. In the
circumstances of this matter, where the victim was a six-year-old girl child, the appellant's
status as a parent does not constitute a substantial and compelling circumstance justifying
a departure from the prescribed minimum sentence.
[31] Nor do we find, in the alternative, that the sentence is disproportionate to the facts
of the offence so as to independently constitute a substantial and compelling circumstance.
A life sentence for the rape of a minor, causing profound and lasting harm to the child, is
not disproportionate. It is the minimum prescribed by the legislature in acknowledgment of
the gravity of such offences and the imperative of protecting children from sexual violence.
The court a quo correctly placed reliance on S v Solomons and Another 11 in holding that
the potential of rehabilitation does not in itself mean that life imprisonment cannot be
imposed.
[32) The central question on appeal is not whether this court would have imposed the
same sentence, but whether the court a quo exercised its sentencing discretion properly
and judicially. The record discloses that the court a quo considered the personal
circumstances of the appellant, the pre-sentence report, the guilty plea, the pre-trial
circumstances of the appellant, the pre-sentence report, the guilty plea, the pre-trial
incarceration, the interest of society, and the seriousness of the offence. It correctly directed
itself to the applicable minimum sentencing regime and to the standard required to establish
substantial and compelling circumstances. The record reflects that the court a quo applied
the correct legal framework and concluded that no substantial and compelling
circumstances existed. The court a quo did not approach the sentencing of the appellant
on the basis that the prescribed minimum sentence would be imposed as a matter of
11 2008 (2) SACR 149 (E) at para 17.
8
course, but applied its mind as to whether the sentence imposed was proportional to the
offence.
[33] We find no misdirection, let alone one of the nature, degree or seriousness , in the
manner in which the court a quo approached the sentencing enquiry. The aggravating
circumstances were significant: the victim was a minor, and the impact on both the child
and her family was severe and ongoing. We are not persuaded that there exists a striking,
startling or disturbing disparity between the sentence imposed and that which we would
have imposed.
[34] The sentence of life imprisonment, while severe, is neither shockingly inappropriate
nor out of all proportion to the gravity of the offence. It is the sentence prescribed by the
legislature for offences of this nature, absent substantial and compelling circumstances
justifying a departure. No basis has been established for appellate interference.
ORDER
In the result, the following order is made:
1. The appeal against sentence is dismissed.
2. The sentence of life imprisonment imposed by the Regional Court, held at Nigel, on
14 August 2025 is confirmed.
I agree
EVAN DER SCHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
JUD HE HIGH COURT
GAUTENG DIVISION, PRETORIA
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For the appellant:
Instructed by:
For the respondent:
Instructed by:
Date of the hearing:
Date of judgment:
Mr. M. B. Kgagara
Pretoria Justice Centre
Mr. V. G. Khoza
Director of Public Prosecutions
28 May 2026
29 May 2026
10