Under South African criminal law, a life imprisonment sentence is the most severe form of judicial punishment that can be imposed upon a convicted criminal and is therefore reserved for the most serious offences. When a judge passes a life sentence, they must specify the minimum term that the offender must spend in prison before becoming eligible for parole, which is determined in accordance with section 51 of the Criminal Law Amendment Act 105 of 1997.

For certain offences – such as premeditated murders – life imprisonment is a mandatory sentence which means that the convicted criminal may only become eligible for parole after 25 years. A judge may nevertheless deviate from the statutorily prescribed minimum sentence if they are satisfied that “substantial and compelling circumstances” exist. This article will focus on the Supreme Court of Appeal’s (‘SCA’) judgment inLoyiso Ludidi & Others v The Statewhich examined whether a substantial amount of time spent by criminal offenders as ‘awaiting trial prisoners’ constitutes substantial and compelling circumstances to justify a deviation from the mandatory life imprisonment sentence.

Background facts

Mr and Ms Kwaza had been involved in a troubled marriage, marred by numerous domestic abuse charges lodged against Mr Kwaza as well as a complaint from Ms Kwaza regarding non-payment of maintenance. In 2016, Ms Kwaza began a romantic relationship with a local councillor which was well known within the community. It appears that the affair was quickly discovered by Mr Kwaza who responded by enlisting the services of a hitman, Thando Chwayi, to organise the murder of his wife.

However the twist in this case arose when Mr Chwayi – after recruiting Loyiso Ludidi and Sivuyile Shashato to help fulfil this contract killing – learnt about the identity of their target, Ms Kwaza, who was a relative and friend to him. At this point, it appears that Mr Chwayi informed Ms Kwaza about her husband’s intentions whereafter they agreed to switch the targeted hit onto Mr Kwaza. On the evening of 23 June 2016, Mr Ludidi and Mr Shasha broke into the Kwaza household and fatally shot Mr Kwaza twice in the head whilst he was asleep in bed and proceeded to steal various items from the house.

Following these events, Mr Ludidi and Mr Shasha were found guilty of robbery with aggravating circumstances, murder, and unlawful possession of a firearm and ammunition. Mr Chwayi – who only organised but did not participate in the attack – was only found guilty of murder together with Ms Kwaza. The sentencing procedure for these crimes only took place 5 years and 8 months later, but during this period the accused remained in custody. The Western Cape Division of the High Court imposed life sentences upon Mr Chwayi, Mr Ludidi and Mr Shasha, but declined to do so in the case of Ms Kwaza.

The High Court reasoned that in addition to her lengthy pre-sentencing detention, Ms Kwaza’s actions were spurred on by self-preservation which reduced her moral blameworthiness, and this constituted substantial and compelling circumstances which justified a lesser finite sentence of twelve years imprisonment. The High Court did not apply the same reasoning to the other offenders but granted them leave to appeal to the SCA to argue whether their pre-sentencing incarceration amounted to substantial and compelling circumstances.

The matter before the SCA

The SCA noted from the outset that a sentencing court will be entitled to impose a lesser sentence if it is satisfied that the particular circumstances of a case would render imposing the prescribed minimum sentence unjust as it would be disproportionate to the crime, the criminal and the needs of society. This was confirmed by the Constitutional Court inS v Dodowhich held that ‘proportionality‘ is central to whether a sentence is cruel, inhumane or degrading.

With regard to the facts of this case, the SCA referred to its own judgment inNcgobo v Swhere it held that the time spent in custody before conviction and sentencing is not, on its own, a substantial and compelling circumstance. It is merely one of several factors which must be considered when determining whether the sentence imposed is disproportionate and unjust, and thus whether the prescribed minimum sentence can be justifiably reduced to a lesser one.

The SCA also held that a court should consider the reasons for the prolonged pre-sentencing incarceration. The SCA found that the inordinate delays in this matter were exasperated by the actions of the appellants and their legal representatives who had launched an unsuccessful bail appeal significantly delaying the first pre-trial conference. The following pre-trial procedures were further delayed by the ‘serial non-attendances’ of their legal representatives. The SCA held that the life imprisonment sentences were not disproportionate in this case, given the heinous nature of the crimes committed.

The SCA accordingly concluded that the High Court had not erred in finding that the lengthy pre-sentencing incarceration period endured by the offenders did not constitute substantial and compelling circumstances necessary to justify a deviation from the prescribed minimum sentence of life imprisonment. Their appeal was accordingly dismissed.

Aslam Moosajee

Executive Dispute Resolution

[email protected]

Laurence Mort

Candidate Legal Practitioner Dispute Resolution

[email protected]