THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 1192/2018
In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA

APPELLANT

and

MFANIMPELA NTOKOZO ZULU

RESPONDENT

Neutral citation: DPP, Pretoria v Zulu (1192/2018) [2021] ZASCA 174 (10
December 2021)

Coram:
SALDULKER
ADP
and
MATHOPO,
NICHOLLS
and
MABINDLA-BOQWANA JJA and KGOELE AJA

Heard:
This appeal was disposed of without an oral hearing in terms of s
19(a) of the Superior Courts Act 10 of 2013.

Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website, and release to SAFLII. The date and time for hand-down are
deemed to be 09h45 on 10 December 2021.

Summary: Sentence – Appeal by the State in terms of s 311(1) of the Criminal
Procedure Act 105 of 1977 – whether the issue raised is a question of law or fact
– whether sentence disproportionate to the crime – sentence imposed by Regional
Court reinstated.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Davis J and Nair
AJ sitting as court of appeal):

The appeal is upheld.

The order of the high court in respect of the sentences on the three counts
of rape is set aside and replaced with the following order:
‘1. The appeal against the sentences in respect of the three counts of rape is dismissed.
2. The judgment of the Ermelo Regional Court in the Regional Division of Mpumalanga
in respect of the life sentences imposed on counts 1, 2, and 3 are confirmed. The
sentences will run concurrently.’

JUDGMENT

Kgoele AJA (Saldulker ADP and Mathopo, Nicholls and Mabindla-
Boqwana JJA concurring):
[1] This is an appeal by the Director of Public Prosecutions, Pretoria (the
appellant), against the sentence imposed on 1 June 2018 by the Gauteng Division
of the High Court, Pretoria, wherein Davis J and Nair AJ (the high court) partially
set aside the sentence of Magistrate Jonker sitting at Ermelo, Mpumalanga
Regional Division (the regional court). The appeal is brought in terms of s 311(1)
of the Criminal Procedure Act 51 of 1977 (the CPA).

[2] On 12 May 2016, Mr Mfanimpela Ntokozo Zulu (the respondent), was
convicted of three counts of rape read with the provisions of s 51(1) of the

Criminal Law Amendment Act 32 of 2007 (the CLAA) and two counts of
common assault, by the regional court. He was sentenced to life imprisonment on
each of the rape counts and to three months imprisonment in respect of both the
assault counts. All of the sentences were ordered to run concurrently.

[3] He successfully obtained leave from the regional court against his
conviction and sentence. The appeal was heard by the high court, which
dismissed the appeal against conviction. However, the high court upheld the
appeal against sentence, and the life imprisonment imposed on each count of rape
was set aside and substituted with a sentence of 20 years imprisonment on counts
1, 2, and 3 respectively. The concurrency of the sentences remained intact with
the result that the respondent’s effective sentence is 20 years.

[4] It bears mention that the sentences of life imprisonment imposed by the
regional court in respect of the rape counts, were in consequence of the finding
that no substantial and compelling circumstances were present that could warrant
a deviation from the prescribed minimum sentences of life, prescribed by the
CLAA. The high court, even though it did not find any reason to interfere with
this finding by the regional court, including the concurrency of the sentences
imposed, concluded that the sentence of life imprisonment was disproportionate
to the offences of rape the respondent was convicted of. In arriving at its
conclusions, it relied on the judgments of Abrahams, Mahomotsa, Nkomo, GN,
and Ganga,1 where it was found that, even when a life sentence is a prescribed
minimum sentence, as an ultimate sentence, it must not be imposed lightly. It
considered itself bound by those judgments on the basis that they were the
precedents and found that the regional court misdirected itself in that it did not
consider the approach adopted by our courts in those cases.

1 S v Abrahams 2002 (1) SACR 116 (SCA); S v Mahomotsa 2002 (2) SACR 435 (SCA); S v Nkomo 2007 (2)
SACR 198 (SCA); S v GN 2010 (1) SACR 93 (T) and S v Ganga [2015] ZAWCHC 171; 2016 (1) SACR 600
(WCC).

[5] Aggrieved by these findings, the appellant launched this appeal against the
reduced sentences. As already indicated, the appellant raised what it termed a
question of law in terms of s 311 of the CPA, which was formulated as follows:
‘Did the court a quo correctly weigh the cumulative factors in aggravation and mitigation of
sentence against the accused’s criminal liability, in terms of the Criminal Law Amendment Act
105 of 1997, in accordance with the principles enunciated in S v Malgas 2001 SACR 496 (SCA)
inter alia?’

[6] Before turning to the requirements of section 311, a brief summary of the
background facts that led to the respondent's conviction is necessary. The
complainant, who was a minor at the time, started staying with her mother and
the respondent, who is her stepfather, in 2010. She testified that during the periods
November 2011, August 2012, and February 2015, she was raped on numerous
occasions by the respondent. She was 12, 13, and 15 years old, respectively, at
the time. The respondent would usually approach her after school when no one
else was present at home. He gained her trust by telling her that he would show
her what boys do to girls. He would then smear Vaseline on his penis and
gradually, over a period extending over weeks and months, penetrate the
complainant vaginally.

[7] The repeated rapes did not only cause the complainant to lose her virginity,
but also to fall pregnant several times. The respondent influenced her to tell her
mother that she was impregnated by her boyfriend on each occasion. When the
complainant’s mother wanted to approach the boy’s parents, the respondent
convinced her not to, saying it was unnecessary as boys nowadays always deny
impregnating girls. The multiple pregnancies were terminated by the use of pills
from shops allegedly run by Nigerian citizens. These were procured for her at the

insistence of the respondent. The complainant’s mother rejected her at some stage
believing that this young boy impregnated her.

[8] The respondent also isolated the complainant because he did not want to
see her with her male school friends. He often followed her after school to check
on her. On one of the days, he assaulted the complainant with an open hand when
he found her with one Thabo Dludlu after school. He also threatened to stab
Thabo with a knife, but Thabo outran him. These are the allegations informing
the two counts of assault he was convicted of.

[9] Coming back to the jurisdictional requirements of s 311, it is now settled
that essentially, s 311 provides the prosecuting authority with an appeal
opportunity directly to this Court under the following conditions:
(a)
There was an appeal to the high court (it is irrelevant which party brought
this appeal);
(b)
That court of appeal (ie the high court) found in favour of the convicted
person on a question of law.2
This section confers an automatic right of appeal when the conditions set out
above are satisfied.3

[10]  The first jurisdictional requirement does not pose any problem in this
appeal. The second one, whether the question raised by the appellant is a question
of law is one of the issues pertinently raised by the respondent. This Court can
only entertain the merits if it is satisfied that the appellant's ground of appeal
involves a question of law.

2 Director of Public Prosecutions, Gauteng Division, Pretoria v Moabi [2017] ZASCA 85; 2017 (2) SACR 384
(SCA) para 32. See also a Du Toit et al Commentary on the Criminal Procedure Act [Service 60, 2018] p 30-67.
3 Ibid paras 35, 45 and 47. See also Director of Public Prosecutions, Gauteng v MG [2017] ZASCA 82; 2017 (2)
SACR 132 (SCA) para 16.

[11]  Before us, the respondent relied on several decisions of this Court to
support the contention that the nature of the question formulated by the appellant
is simply a question of fact clothed as a legal question to provide it with
legitimacy.4 Most of these authorities were thoroughly analysed by this Court in
MG and need no further emphasis. It suffices to state that the finding in
Mphaphama, upon which the respondent heavily relied, was qualified therein as
follows:5
‘Although the facts in Mphaphama are at first blush not materially distinguishable from the
facts of this case, the issues raised in the two cases are different. Hence the different outcomes.
Accordingly, the dictum in Mphaphama, that “the exercise of a judicial discretion in favour of
a convicted person in regard to sentence . . . cannot be a question of law”, is cast too wide. In
particular, it does not deal with the position where that discretion has been exercised on an
incorrect legal basis. An exercise of a judicial discretion based on a wrong principle or
erroneous view of the law is clearly a question of law decided in favour of a convicted person.
This also distinguishes the present matter from that of Mosterd because it is not the nature of
the sentence, but the legal basis on which it was approached, which places this matter within
the ambit of s 311 of the CPA.’

[12] To substantiate the fact that the question raised involves a question of law,
the appellant argued that ‘the high court failed to properly assess the respondent’s
criminal liability against Schedule 2, Part 1 of the CLAA, in that the offences the
respondent was convicted of resorted under item (a)(i), since the complainant had
been raped more than once and further under item (b)(ii) in that the complainant
was a minor under the age of 16 years. Further that, its ‘maudlin sympathy’ for
the respondent is against the principles enunciated by this court in Malgas.’6

4 Director of Public Prosecutions, Gauteng, v Mphaphama [2016] ZASCA 8; 2016 (1) SACR 495 (SCA) para
11; Director of Public Prosecutions v Olivier 2006 (1) SACR 380 (SCA) paras 21-22; Director of Public
Prosecutions, Western Cape v Kock [2015] ZASCA 197; 2016 (1) SACR 539 (SCA) para 9; Director of Public
Prosecutions: Gauteng Division, Pretoria v Mbonani [2020] (SCA) ZASCA 115 para 31.
5 Para 29 MG (fn 3 above).
6 S v Malgas 2001 SACR 496 (SCA).

[13] As to the question of whether the issues raised in an appeal are a question
of law or facts, Magmoed7 remains a good authority on how to approach this
question. The approach has been widely accepted and applied by this Court in
various judgments8 and needs no further emphasis.

[14] Although the high court concluded, that ‘to impose an imprisonment for
life in the present matter would be disproportionate to the life sentences in such
other matters which would deserve the ultimate penalty’, it confirmed the
regional court’s finding that there were no substantial and compelling
circumstances that warranted the court to deviate from the prescribed minimum
sentence prescribed, which is life imprisonment. However, the high court
bemoaned the fact that the regional court did not consider the issue of
proportionality as one of the principles a court must take into consideration when
imposing a sentence of life imprisonment.

[15] There is no doubt that the facts and circumstances of this case bring the
respondent’s rape convictions within the ambit of the prescribed minimum
sentence of life imprisonment. First, the complainant is a minor, and second, she
was raped more than once. The provisions of the CLAA are implicated as being
the law applicable to the conduct of the respondent.

[16] My understanding of the question raised by the appellant is that it requires
an inquiry first into whether the high court’s view and understanding of the
mandatory provisions of the CLAA are correct and second, whether the high court
properly appreciated the import of the circumstances of this matter in its
determination of the proportionality test as espoused in Malgas, together with the

7 Magmoed v Janse van Rensburg & Others 1993 (1) SACR 67 (A); 1993 (1) SA 777.
8 Director of Public Prosecutions: Gauteng Division, Pretoria v Pooe [2021] ZASCA 55; [2021] 3 All SA 23
(SCA); 2021 (2) SACR 115 (SCA); Director of Public Prosecutions, Western Cape v Schoeman and Another
2020 (1) 449 SACR (SCA); Director of Public Prosecutions: Limpopo v Molope and Another [2020] ZASCA 69;
[2020] 3 All SA 633 (SCA); 2020 (2) SACR 343 (SCA).

precedents it quoted. The issue regarding proportionality involves a question of
whether the punishment fits the crime, it is, therefore, a question of law. Simply
put, the inquiry does not concern the nature of the sentences, but the legal basis
on which the reduced sentences were approached. After all, as already quoted
above, it is trite that an erroneous view of the law is a question of law. I am
satisfied that the question raised is a question of law.

[17] That being so, this Court is empowered to consider the sole question in
the appeal as to whether there was any legal basis that entitled the high court to
interfere with and reduce the sentences imposed by the regional court. The nub
of the appellant’s case is that the reduction of the sentences in the rape counts was
based on an incorrect application of the accepted legal principles in sentencing
and the provisions of the CLAA, including an incorrect finding that the
circumstances of this case are not the ‘worse kind of rape’ that warrants a
maximum punishment.

[18]  It is important at the outset to re-state the basic principle that the
determination of a sentence in a criminal matter is pre-eminently a matter for the
discretion of the trial court and that the power of the appellate court to interfere
with a sentence imposed by a lower court is limited. I now consider whether this
Court is entitled to interfere with the sentences imposed by the high court.

[19]  After confirming the order of the regional court that there are no
substantial and compelling circumstances in this matter, the high court held in
para 10 of its judgment in justifying its decision to interfere with the sentences
imposed by the regional court:
‘However, that is not the end of the inquiry. Our courts have, in a series of judgments
emphasised that one should not lose sight of the fact that life imprisonment is the most severe
sentence which a court can impose and that the question whether it is an appropriate sentence
in respect of its proportionality to the particular circumstances of a case requires careful

consideration. See: S v Abrahams 2002 (1) SACR 116 (SCA); S v Mahomotsa 2002 (2) SACR
435 (SCA); S v Nkomo 2007 (2) SACR 189 (SCA) and S v GN 2010 (1) SACR 93 (T). In S v
Ganga 2016 (1) 600 (WCC) it was further found that, even when a life sentence is a prescribed
minimum sentence, as an ultimate sentence, it must not be imposed lightly. A court must still
seek to differentiate between sentences in accordance with the dictates of justice and where a
magistrate did not sufficiently give consideration to the approach adopted by our courts in the
cases referred to above and simply considered whether the circumstances of the accused
displayed substantial and compelling circumstances, such an approach would amount to a
misdirection. Unfortunately, this is what happened in this present instance, necessitating
interference by this court on appeal.’

[20]  In coming to the conclusion that the sentences were disproportionate to
the offences of rape the respondent was convicted of, it remarked ‘society has
given us worse examples of the extent or brutality of crimes against women’. The
latter remarks depict that it did not consider the circumstances of this case to fall
into the category of ‘the worse kind of scenario’. As the latter remarks are
inextricably linked with the issue of proportionality, the two will be analysed
together hereunder.

[21]  In Malgas, the issue of proportionality was couched as follows:9
‘What that something more must be it is not possible to express in precise, accurate and all-
embracing language. The greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that it may be perpetuating an injustice. Once
a court reaches the point where unease has hardened into a conviction that an injustice will be
done, that can only be because it is satisfied that the circumstances of the particular case render
the prescribed sentence unjust or, as some might prefer to put it, disproportionate to the crime,
the criminal and the legitimate needs of society. If that is the result of a consideration of the
circumstances the court is entitled to characterise them as substantial and compelling and such
as to justify the imposition of a lesser sentence.’

9 S v Malgas 2001 (2) SA 1222 SCA at 1234H (para 22).

[22]    To assess the proportionality of the prescribed sentence in a particular case,
the sentencing court must determine what a ‘proportionate’ sentence would be,
considering all the circumstances traditionally relevant to sentencing.10 The
proportionality of a sentence cannot be determined in the abstract.11 The principle
is trite and was couched in Malgas as follows:
‘To attempt to deny a court the right to have any regard whatsoever to past sentencing patterns
when deciding whether a prescribed sentence is in the circumstances of a particular case
manifestly unjust is tantamount to expecting someone who has not been allowed to see the
colour blue to appreciate and gauge the extent to which the colour dark blue differs from it. As
long as it is appreciated that the mere existence of some discrepancy between them cannot be
the sole criterion and that something more than that is needed to justify departure, no great
harm will be done.’12

[23]   In Mahomotsa,13 one of the authorities relied upon by the respondent’s
legal representative, a practical approach of this principle is well illustrated and
buttresses the point made above.  The court remarked ‘[whilst] I am persuaded
that in respect of the first count the factors mentioned in para 17 above, taken
together with the accused’s relative youth and his other personal circumstances,
the fact that his previous conviction, though of a sexual nature, did not involve
non-consensual sex, are such that a departure from the prescribed sentence is
justified on the basis that such a sentence would be disproportionate to the crime,
the criminal and the legitimate interest of the society, the same cannot be said
without more about the second count’.

[24]    It is therefore clear that there is a contradictory and irreconcilable tension
in the findings of the high court. It found no substantial and compelling

10 S v Vilakazi [2008] ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA); 2012 (6) SA 353
(SCA) para 16.
11 Ibid para 20.
12 S v Malgas 2001 (1) SACR 469 (SCA) at para 21.
13 Mahomotsa above fn 1 para 20.

circumstances justifying a departure from the prescribed minimum sentences and
found no reason to interfere with the concurrency of sentences as ordered by the
regional court, yet, after making this finding, it found another reason that justified
the imposition of a lesser sentence. In this regard it erred.

[25]   Although the legislature’s aim in promulgating the minimum sentence
regime was to achieve a ‘severe, standardised and consistent’ response from
courts in imposing sentences unless there were truly convincing reasons for a
different response’ as enunciated in Malgas,14 it is important to always note that
it is trite that the invocation of the proportionality test must always be determined
on the peculiar facts of each case.

[26]  In more recent times and after the guidelines in Malgas were confirmed
by the Constitutional Court, Petse JA as he then was, remarked as follows in
Kwanape:15
‘It was further submitted on behalf of the appellant that this was not the worst rape imaginable.
Thus, concluded the argument, that consideration, viewed with other mitigating factors,
justifies a lesser sentence. I do not agree. In S v Mahomotsa this court made plain that the fact
that more serious cases than the ones under consideration are imaginable is not decisive. Mpati
JA said:
“[19] Of course, one must guard against the notion that because still more serious cases than
the one under consideration are imaginable, it must follow inexorably that something should
be kept in reserve for such cases and therefore that the sentence imposed in the case at hand
should be correspondingly lighter than the severer sentences that such hypothetical cases would
merit there is always an upper limit in all sentencing jurisdictions, be it death, life or some
lengthy term of imprisonment, and there will be cases which, although differing in their
respective degrees of seriousness, nonetheless all call for the maximum penalty imposable. The
fact that the crimes under consideration are not all equally horrendous may not matter if the

14 Para 25.
15 S v Kwanape [2012] ZASCA 168; 2014 (1) SACR 405 (SCA) para 20. (References omitted.)

least horrendous of them is horrendous enough to justify the imposition of the maximum
penalty.”
Accordingly this case, on its facts, is indeed horrendous enough to justify the imposition of the
maximum penalty.’

[27] In this matter, sight should not be lost of the fact that society views the
respondent’s heinous conduct in a very serious light. This was also borne out by
the high court, also referring to the offences the respondent was convicted of as
‘abhorrent’. Within the context of this case, the injunction to protect children
from these crimes assumes a prominent role. Courts are reminded in Malgas that
when considering what sentence to impose, ‘emphasis was to be shifted to the
objective gravity of the type of crime and public’s need for effective sanctions
against it’.16

[28]   In this matter, we have a step-father who abused his step-daughter in the
early years of her life and not only impregnated her several times but caused her
to experience the trauma and pain associated with abortion. Not only once, but
many times. That the commission of these offences took place over a protracted
period of three years, with the resultant after-effects, are some of the egregious
distinguishing features which set apart this case from the cases the high court
relied on.

[29]  In fact, there are more aggravating factors in this case.  This also comes
out clearly from the remarks by the high court that ‘[having] regard to the
evidence of the minor, the conduct of the [appellant] could have resulted in many
more than the three charges . . .’. In addition, the respondent is not a candidate
for rehabilitation. He spurned the mercy he was given by the previous court
because five years after he was released on parole, he committed rape again. If

16 Para 25.

one has regard to the circumstances as to how the rapes were committed including
the resultant consequences that flowed from them, there is no doubt that they are
horrendous enough to justify the imposition of the maximum penalty. Unlike the
regional court, the high court gave insufficient weight to the seriousness of the
offences in this case. It is in the interest of society that the respondent’s conduct
in the circumstances of this case be appropriately sentenced.

[30]  Apart from the fact that the reasons given by the high court rested on
tenuous grounds, what is disturbing, in this case, is that the sentences imposed by
the high court are woefully inadequate when viewed within the context of the
circumstances of this case. In finding that the crimes the respondent was
convicted of were not the worst kind of rapes, the high court clearly underplayed
the circumstances in this matter. The failure by the high court to apply correctly
the appropriate provision of the CLAA and the principles as laid down in Malgas,
coupled with how it underplayed the seriousness of the offences viewed in the
context of the circumstances of this matter, is a material misdirection that entitles
this court to interfere.

[31] For all the preceding reasons, I am not persuaded that there was
misdirection, let alone a material misdirection on the part of the regional court.  I
conclude that the sentences imposed by the regional court should stand, as they
are proportionate to the offences committed by the respondent and the
circumstances of this case. The appeal must, accordingly, succeed. The appeal
against the reduced sentences in respect of the three counts of rape imposed by
the high court should be upheld.

[32] In the result, the following order is made:

The appeal is upheld.

The order of the high court in respect of the sentences on the three counts
of rape is set aside and replaced with the following order:
‘1. The appeal against the sentences in respect of the three counts of rape is dismissed.
2. The judgment of the Ermelo Regional Court in the Regional Division of Mpumalanga
in respect of the life sentences imposed on counts 1, 2, and 3 are confirmed. The
sentences will run concurrently.’

_____________________
A M KGOELE
ACTING JUDGE OF APPEAL

APPEARANCES

For the appellant:

C P Harmzen
Instructed by:
Director of Public Prosecutions,
Pretoria
Director of Public Prosecutions,
Bloemfontein

For the respondent:

M G Botha
Instructed by:
Pretoria Justice Centre

Bloemfontein Justice Centre

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
10 December 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
DPP, Pretoria v Zulu (1192/2018) [2021] ZASCA 174 (10 December 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appeal against the
sentence imposed by the Gauteng Division of the High Court, Pretoria.

On 12 May 2016, the respondent (the step-father of the complainant) was convicted of three counts of
rape and two counts of common assault by the regional court. The complainant was a minor when she
was raped in November 2011, August 2012, and February 2015. The respondent impregnated her on
these occasions and persuaded her to abort the pregnancies.

He was sentenced to life imprisonment on each of the rape counts and three months’ imprisonment
regarding both the assault counts. All of the sentences were ordered to run concurrently. His appeal
against conviction and sentence, with leave of the regional court, was heard by the high court, which
dismissed the appeal against conviction. However, the high court upheld the appeal against the
sentence, and the life imprisonment imposed on each count of rape was reduced to a sentence of 20
years imprisonment on counts 1, 2, and 3. The concurrency of the sentences remained intact, with the
result that the respondent’s effective sentence was 20 years.

In coming to its conclusion, the high court bemoaned the fact that the regional court did not consider
whether the sentences it imposed were proportional to the rape counts the respondent was convicted
of. Further that, the rape counts were not the worst imaginable.

The appellant brought this appeal in terms of s 311(1) of the Criminal Procedure Act 51 of 1977 (the
CPA) which confers a party an automatic right of appeal to this Court if it involves a question of law.
The nub of the appellant’s case was that the reduction of the sentences in the rape counts was based
on an incorrect application of the accepted legal principles in sentencing and the provisions of the CLAA,
including an incorrect finding that the circumstances of this case were not of a ‘worse kind of rape’ that
warranted a maximum punishment. The respondent argued that the issue raised by the appellant is not
a question of law but fact, and that the high court’s decision to reduce the rape sentences is
unassailable.

The SCA found that the question raised by the appellant is a question of law that entitles it to hear the
appeal. Furthermore, the SCA held that there was a material misdirection that warranted it to intervene
because the high court failed to apply correctly the provision of the CLAA and the principles laid in S v
Malgas dealing with the issue of proportionality, coupled with how it underplayed the seriousness of the
offences viewed in the context of the circumstances of this matter.

As a result, the SCA concluded that there are more aggravating factors that displayed the respondent's
egregious conduct, which justify the maximum sentences prescribed in the circumstances of this matter.
The appeal accordingly succeeded.
~~~~ends~~~~