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[2026] ZAGPJHC 677
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Maduna v S (A112/2020) [2026] ZAGPJHC 677 (12 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Appeal No: A112/2020
DPP Ref No:
10/2/5/1-(2020/087)
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
In
the matter between:
MADUNA,
MONDLI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Karam
AJ:
INTRODUCTION
1.
The appellant was charged with seven counts of rape ad one
of attempted rape. Pursuant to a guilty plea, he was convicted
and
sentenced in the Alexandra Regional Court as follows:
1.1
count 1 – rape – life imprisonment;
1.2
count 2 – rape – life imprisonment;
1.3
count 3 – rape – life imprisonment;
1.4
count 4 – rape – life imprisonment;
1.5
count 5 – rape – life imprisonment;
1.6
count 6 – rape – 10 years imprisonment;
1.7
count 7 – rape – 10 years imprisonment;
1.8
count 8 – attempted rape – 2 years imprisonment.
2.
All of the aforesaid counts were in respect of the same
complainant, who was 14 years of age when counts 1 –
2 were
perpetrated, 15 years of age when counts 3 – 5 were
perpetrated, and 16 years of age when counts 6 – 8
were
perpetrated.
3.
Counts 1 – 5 were read with the provisions of Section 51(1)
of the Criminal Law Amendment Act 105 of 1997 (“the
minimum
sentence provisions”).
Counts
6 – 7 were read with the provisions of Section 51(2) of the
minimum sentence provisions.
4.
The matter comes before this court by virtue of the appellant’s
automatic right to appeal in terms of Section
309 (1) (a) of the
Criminal Procedure Act 51 of 1977 (“the CPA”).
5.
The appellant appeals against both conviction and sentence.
AD
CONVICTION
6.
The appellant raises various issues on conviction that this
court is required to determine:
6.1
whether count 1 is a duplication of the conviction on count 2;
6.2
whether the appellant’s legal representative was
incompetent to the extent that the appellant had an unfair
trial
and whether the trial court had erred in convicting the appellant.
7.
Regarding 6.1 hereinabove:
7.1
Count 1 of the charge sheet alleged that the appellant had raped
the complainant on 25 May 2015.
Count
2 alleged that the appellant had raped the complainant on diverse
occasions between the periods May 2015 and June 2015.
7.2
Clearly, the periods referred to in count 2 includes the date
specified in count 1. Whilst this was initially disputed
by
counsel for the State, she ultimately conceded same.
Accordingly,
I am of the view that there is merit on this ground, that the
conviction on
count
1 was a misdirection in that it was a duplication of the
conviction on count 2, and
that
the conviction and sentence imposed on count 1 ought to be set
aside.
8.
Regarding 6.2 hereinabove:
8.1
An allegation that a legal representative is incompetent,
resulting in an unfair trial, must be substantiated and
a court of
appeal must be shown the incompetent conduct complained of and how
same resulted in the trial being unfair.
S
v Halgryn
2002 (2) SACR 211
(SCA)
8.2
I am of the view that there is no merit in this submission, for
the following reasons:
8.2.1
It is evident from the record that an interpreter was utilized in
the trial, that the appellant understood the charges,
that the
minimum sentence provisions were explained to him prior to him
pleading, and that he freely and voluntarily pleaded
guilty
thereto. The appellant confirmed the content of the plea marked
Exhibit A, and signed same in court.
8.2.2
There is no merit in the submission that were the learned
Magistrate to have questioned the appellant, that a plea of
not
guilty would have been entered. The appellant was 39 years of age
and not a youth, and there was nothing stopping him
from disputing
the content of his plea statement and/or refusing to sign same.
There
is nothing that appears from the record that would have warranted
the learned Magistrate to question the appellant on
any aspect.
8.2.3
The pre – sentence report was obtained subsequent to the
conviction. Whilst there is a reference therein to the
sexual
intercourse with the complainant having been consensual. The
appellant’s legal representative advised the court
that
reference thereto was a mistake on his part.
In
court, and on the learned Magistrate’s questioning thereon,
the legal representative approached the appellant and
confirmed to
the court that the appellant had erred in stating same and
confirmed that there was no consent.
9.
For the aforesaid reasons, I am of the view that save for the
duplication of conviction in respect of count 1, there
is no merit
on the other grounds submitted in respect of conviction.
AD
SENTENCE
10.
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)
S
v Malgas
2001 (1) SACR 469
(SCA)
DPP
v Mngoma
2010 (1) SACR 427
(SCA)
S
v Grobler
2015 (2) SACR 210
(SCA)
11.
The appellant was made aware, prior to pleading, of the
implications of the minimum sentence legislation.
12.
It is common cause that having regard to the age of the
complainant and the fact
that she was
raped on multiple occasions, that the appellant fell squarely
within the ambit of the minimum sentence legislation
of life
imprisonment on counts 2 – 5 and 10 years imprisonment on
counts 6 – 7.
13.
The fact that the appellant was ultimately not called to testify
does not necessarily
lead to the only
inference that his legal representative was incompetent or that
the appellant had had an unfair trial. There
is further no
affidavit or document from the appellant stating that he wished to
testify but that his legal representative
persuaded him or
prevented him from doing so.
13.1
It is, in any event, highly improbable that even were the
appellant to have testified to having remorse and apologised
to
the complainant, that that would, given the aggravating
circumstances in this matter, have constituted a substantial and
compelling factor warranting a departure from the impositionof the
minimum sentences.
14.
There are various aggravating factors:
14.1
the fact that the complainant was raped over a period of years on
multiple
occasions;
14.2
the fact that the complainant fell pregnant and bore the
appellant’s child as
a result;
14.3
the grave effects that the rapes have had on the complainant’s
mental health;
14.4
the probability that it was the appellant who, as a result of the
rapes, had infected the complainant with HIV;
14.5
the scourge of rape and prevalence thereof, especially that of
minor children, in our society.
15.
In
S v Malgas
supra
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,
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.
16.
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.
17.
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.
18.
Accordingly, I am of the view that there is no merit in the appeal
against sentence.
19.
In the circumstances I propose the following Order:
19.1
The appeal against the conviction on count 1 is upheld; The
conviction and sentence on count 1 is set aside.
19.2
The appeal against the convictions and sentences on the remaining
counts is dismissed.
W
A KARAM
ACTING
JUDGE OF THE HIGH COURT
I
AGREE AND IT IS SO ORDERED
M
P MOTHA
JUDGE
OF THE HIGH COURT
Appearances:
Appellant:
Adv I Mthembu
Legal Aid SA
Johannesburg Office
Respondent: Adv
T J Mbodi
Director of Public
Prosecutions
Gauteng Division,
Johannesburg