IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MAKHANDA]
[KOMANI CIRCUIT COURT]
NOT REPORTABLE
CASE NO: CC 28/2026
In the matter between:
THE STATE
vs
THULANI MGODELI ACCUSED
___________________________________________________________________
JUDGMENT ON SENTENCE
___________________________________________________________________
Mjame AJ
[1] I convicted Mr Mgodeli, the accused on three counts of Kidnapping, three
counts of Rape read with provisions of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 and one count of Theft.
[2] The accused ‘s conviction is based on the court’s finding that he did unlawfully
and intentionally deprived the three complainants of their freedom of
movement by forcefully pulling them to his house and did then engaged in
sexual intercourse with complainants without their consent. These incidents
happened on different occasions.
[3] The court is at a stage to determine an appropriate sentence to impose on the
accused which is the most difficult stage of the proceedings.
In S vs MM1, the SCA having remarked that the vexed question of sentence is
always an extremely difficult exercise, stated that:
“Sentence must always be individualised, for punishment must always fit the
crime, the criminal and the circumstances of the case .it is equally important
to remind ourselves that sentencing should always be considered and passed
dispassionately, objectively and upon a careful consideration of all relevant
factors. Public sentiment cannot be ignored, but it can never be permitted to
displace the careful judgement and fine balancing that are involved in arriving
at an appropriate sentence. Courts must therefore always strive to arrive at a
sentence which is just and fair to both victim and the perpetrator, has regard
to the nature of the crime and takes account of the interests of society.
Sentencing involves a very high degree of responsibility which should be
carried out with equanimity.”
[4] When considering an appropriate sentence, the Court should have regard to
all relevant factors as well as the circumstances of a case, especially the
factual matrix which underpins such facts against the aims of punishment and
triad.
[5] A court is required to consider the four objectives of punishment. (that is,
deterrence, prevention, retribution and rehabilitation), in view of the triad of
factors as set out in S vs Zinn2. These factors are the nature and seriousness
of the offence committed, personal circumstances of the offender and interest
of the society.
[6] A judicial officer should not approach punishment in a spirit of anger because,
being a human, that will make it difficult for him to achieve that delicate
balance between the crime, the criminal and the interests of society which his
task and objects of punishment demand him. Nor should he strive after
task and objects of punishment demand him. Nor should he strive after
severity, nor, on the other hand, surrender to misplaced pity. While not
1 S vs MM [2013] ZASCA 56, 2013(2) SACR 292 (SCA) @ par 13 @297.
2 S vs Zinn 1969(2) SA 537 (A).
flinching from firmness, where firmness is called for, he should approach his
task with a human and compassionate understanding of human frailties and
the pressures of society which contribute to criminality3 .
NATURE AND SERIOUSSNESS OF THE OFFENCE
[7] Kidnapping is a serious offence. The right to freedom is a precious right which
is the basic ethos of the Constitution (Act 108 of 1996)
Furthermore, it constitutes humiliating, degrading and invasion of the privacy
and dignity of the victim. In Hunt SA Law and Procedure 2 nd edition at 509,
Kidnapping was also defined as unlawful and intentional deprivation of a
person of liberty of movement and or his custodian of control.
The Court has to consider the degree of seriousness depending on the period
of detention, condition of detention and circumstances general.4
Rape is unquestionable a despicable crime. In S vs C 5 has been said that a
rapist does not murder his victim, he murders her self -respect and destroys
her feeling of physical and mental integrity and security. His monstrous deed
often haunts the victim and subjects her to mental torment for the rest of her
life, a fate often worse than loss of life.
Also, in S vs Makatu 6, the SCA emphasising the seriousness of this kind of
offence said:
“For some time now, this country has witnessed an ever -increasing wave in
crimes of violence notably murder and sexual offences. Undoubtedly, these
crimes seriously threaten the very social and moral fabric of our society. As a
result, our society is seriously fractured. The majority of our people particularly
the vulnerable and the defenceless which include women and children, the
elderly and infirm live under constant fear. It is no exaggeration to say that
every living woman or a girl in this country is a potential victim of either rape
or murder. This is said because these heinous crimes happen against the
3 S vs Rabie 1975 (4) SA 855 A @ 866 A-C.
4 S vs Morgan & Others 1993(2) SACR 134 A
5 1996 (2) SACR 181 ( C ) @ 186 E-F
4 S vs Morgan & Others 1993(2) SACR 134 A
5 1996 (2) SACR 181 ( C ) @ 186 E-F
6 2014(2) SACR 539 SCA par 30
backdrop of our new and fledging Constitutional democracy which promises a
better life for all.
These crimes have spread across the length and breadth of our beautiful
country like a malignant cancer. They are a serious threat to our nascent
democracy. They have to be exterminated with their roots.”
PERSONAL CIRCUMSTANCES OF THE ACCUSED
[8] He is twenty -six (26) years old. He is single with one boy child who is three
years old. The child stays with his grandmother. He is self -employed selling
liquor and runs a loan shark business. His level of education is Standard
seven (7).
INTEREST OF THE SOCIETY
[9] In S vs Falo7 , Plasket J, described the interest of society in such cases in the
following eloquent terms:
“In a case such as this, the legitimate interest of society come strongly to the
fore, right thinking members of the society -who I venture to suggest, make up
the overwhelming majority want to see the attachment of the type of society
envisaged by our Constitution where everyone can live without the fear that is
currently ever-present for so many women as a result of this scourge of rape.
In the criminal context, that interest includes an interest in effective sentences
being imposed by the courts to punish wrongdoers appropriately and to deter
those who may wish to follow the same path.”
SUBSTANTIAL AND COMPELLING CIRCUMSTANCES
[10] The offences which accused has been convicted attracted a prescribed
minimum sentence as envisaged in section 51(1) of the Criminal Law
Amendment Act 105 of 1997.
Section 51(1) of the Criminal Law Amendment Act 105 of 1997 dictates that if
an accused has been convicted of an offence which falls under Part 1 of
7 [2019] ZAECGHC 37 par 25
Schedule 2 shall be sentenced to Life Imprisonment unless there are
substantial and compelling circumstances for deviation from the prescribed
sentence.
[11] The guidelines to establish the existence of substantial and compelling
circumstances were clearly stated in S vs Malgas8
• It was stated that Courts are required to approach the imposition of sentence
conscious that the legislature has ordained life imprisonment (or the particular
prescribed period of imprisonment) as the sentence that should ordinarily and
in the absence of weighty justification be imposed for the listed crimes in the
specified circumstances.
• Unless there, and can be seen to be, only convincing reasons for a different
response, the crimes in question are therefore required to elicit severe,
standardised and consisted response from the courts.
• The specified sentences are not to be departed from lightly and flimsy
reasons. Speculative hypothesis favourable to the offender, undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying the legislation, and the marginal differences in personal
circumstances or degrees of participation between co -offenders are to be
excluded.
[12] In S vs Vilakazi 9, the SCA with reference to Malgas case, dealt with the
proper approach to determine whether there are substantial and compelling
circumstances that warrant a deviation from the prescribed sentence. It said
that:
“it is incumbent upon a court in every case before it imposes a
prescribed sentence, to assess, upon a consideration of all the
circumstances of the particular case, whether the prescribed sentence
is proportionate to the particular offence. In addition, in ultimately
deciding whether substantial and compelling factors exist, one must
look at the mitigating and aggravating factors and consider crime
committed.”
8 2001(1) SACR 469 SCA.
9 2009(1) SACR 552 SCA, par 15.
The legislature has however deliberately left it to the courts to decide whether
the circumstances of any particular case call for a departure from the
prescribed sentence.
[13] In S vs Nkomo 10 the following was said:
“Against the backdrop of the unprecedent spate of rapes in this
country, courts must also be mindful of their duty to send out clear
message to potential rapists and to the community that they are
determined to protect the equality, dignity and freedom of all women.
Society’s legitimate expectation is that “an offender will not escape life
imprisonment which has been described for a very specific reason -
simply because {substantial and compelling] circumstances are,
unwarrantedly, held to be present. In our constitutional order women
are entitled to expect and insist upon full protection of the law’”
[14] The defense argued that the accused’s personal circumstances, taken
cumulatively constitute substantial and compelling circumstances warranting
the court to deviate from the prescribed sentence. That the court must
consider that no injuries sustained by the victims. It was submitted that the
accused contributed to the economy of the country, was self -employed selling
liquor. Furthermore, that the accused is a first offender in relation to Rape and
Kidnapping. Defense also argued that the period spent in custody by the
accused, which is almost one year, six months constitutes substantial and
compelling circumstances for deviation from prescribed sentence.
[15] The State argued that the personal circumstances of the accused do not
constitute any substantial and compelling circumstances for deviation from the
prescribed sentence. The accused has previous convictions though they are
not for rape cases but they are of violent nature. He committed the offences
after he was released from custody. State further argued that the absence of
injuries on the complainants cannot be counted as substantial circumstances.
injuries on the complainants cannot be counted as substantial circumstances.
10 S vs Nkomo [2006] ZASCA 139, [2007]3 ALL SACR 596.2007(2) SACR 198 SCA
It submitted that rape itself is violent and traumatic. The accused throughout
the trial did not shows any remorse.
[16] I am mindful that accused has been in custody since 2024. The court is also
duty bound to consider the period spent in custody when determining an
appropriate sentence.
In DPP vs Gcwala 11, the SCA, held that the period in detention pre -
sentencing is but one of the factors that should be taken into account in
determining whether the effective period of imprisonment to be imposed is
justified and whether it is proportionate to the crimes committed. It was further
stated in this case that the test is not whether on its own that the period of
detention constitutes a substantial and compelling circumstances, but whether
the effective sentence proposed is proportionate to the crimes and whether
the sentence in all the circumstances, including the period spent in detention
prior to the conviction and sentence is a just one.
The same court again considered this aspect in Mfana Ignitiius Kubai vs S12 ,
that, there must be recognition of time spent in custody in arriving at an
appropriate custodial sentence. A failure to do so may result in an unjust
sentence that approaches or exceeds the maximum term of imprisonment.
[17] It is clear from the evidence before Court that the accused does not have any
respect in women. The manner he treated them is unacceptable. In S vs
Tshabalala13 Mathopho AJ (as he then was) commented as follows: -
“The facts of this case demonstrate that for far too long rape has been used
as a tool to relegate the women in in this country to second class citizens,
over whom men can exercise their power and control, and in so doing, strip
them of their rights to equality , human dignity and bodily integrity .The high
incidents of sexual violence suggest that male control over women and
notions of sexual entitlement feature strongly in the social construction of
masculinity in South Africa. Some men view sexual violence as a method of
masculinity in South Africa. Some men view sexual violence as a method of
re-asserting masculinity and controlling women.”
11 2014 ZASCA page 44
12 2024 ZASCA 123 (30/08/24)
13 2020(2) SACR38 CC
[18] I have considered the nature and seriousness of he offence, the manner and
trend under which these offences are committed, the personal circumstances
of the accused and interest of the society, I found that the prescribed
minimum sentence will only be an appropriate sentence to impose in cases of
this nature. I am therefore not persuaded that substantial and compelling
circumstances justifying a deviation from the prescribed sentence exist for the
Court to deviate from the prescribed one.
[18] Consequently; the accused is sentenced as follows:
Count 1: Kidnapping, the accused is sentenced to undergo three (3) years
imprisonment
Count 2: Rape, sentenced in terms of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 to Life Imprisonment.
Sentences in count 1 and 2 to run concurrently.
Count 4: Kidnapping, sentenced to undergo five (5) years imprisonment
Count 5: Rape, sentenced in terms of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 to Life imprisonment.
Count 6: Theft, sentenced to undergo twelve (12) months imprisonment.
Sentences in Count 4,5 and 6 to run concurrently.
Count 7: Kidnapping, sentenced to undergo five (5) years imprisonment
Count 8: Rape, sentenced in terms of section 51(1) of the Criminal Law
Amendment Act 105 of 1997 to Life Imprisonment.
Sentences in Count 7&8 to run concurrently.
COURT ORDER:
In terms of section 103 of the Fire arms Control Act 60 of 2000 the accused is
declared unfit to possess fire arm.
_________________________
P C N MJAME
ACTING JUDGE OF THE HIGH COURT
Heard 29 July 2026
Delivered: 30 July 2026
APPEARANCES
Counsel for the State: Advocate Van Rooyen
Instructed by: Office of Director of Public Prosecutions
Makhanda
Counsel for the accused: Mr Charles
Instructed by: Legal Aid South Africa
Makhanda