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[2014] ZASCA 25
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Mulaudzi v S (544/13) [2014] ZASCA 25 (27 March 2014)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 544/13
DATE:
27 MARCH 2014
Not
Reportable
In the matter
between
LUTENDO LIFE
MULAUDZI
............................
APPELLANT
And
THE
STATE
.......................................................
RESPONDENT
Neutral citation:
Mulaudzi v The State (544/13)
[2014] ZASCA 25
(27 March 2014)
Coram: Mhlantla,
Wallis and Saldulker JJA
Heard: 5 MARCH
2014
Delivered: 27
MARCH 2014
Summary: Appeal –
Sentence – Applicable minimum sentence.
ORDER
On appeal from:
Thohoyandou High Court (Hetisani J sitting as court of first
instance):
1 The appeal against
the sentences on counts 1 and 2 is upheld.
2 The sentences
imposed by the court below are set aside and replaced with the
following sentences:
(i) On Count 1 –
Murder – The accused is sentenced to 15 years’
imprisonment.
(ii) On Count 2 –
Assault – The accused is sentenced to 2 years’
imprisonment.’
3 The sentence on
count 2 is to run concurrently with the sentence on count 1. To the
extent necessary, the sentences are antedated
in terms of
s 282
of
the
Criminal Procedure Act 51 of 1977
to 28 August 2007, being the
date upon which the sentences were imposed.
JUDGMENT
SALDULKER JA
(MHLANTLA and WALLIS JJA concurring):
[1] This appeal is
directed against sentence only. It is before us with the leave of the
court below. On 28 August 2007, the appellant,
Mr Lutendo Life
Mulaudzi was convicted in the Thohoyandou High Court, by Hetisani J
on one count of murder and on one count of
assault. He was sentenced
to 24 years’ imprisonment on the count of murder and 4 years’
imprisonment on the count of
assault respectively. The sentences were
ordered to run concurrently.
[2] According to the
indictment, the appellant was charged with murder, in accordance with
section 51(1)(a) of the Criminal Law
Amendment Act 105 of 1997 (Act)
read with Part I of Schedule 2. Both counsel for the State and the
appellant submitted that no
such section exists and counsel for the
State and the appellant both submitted that there was an error in the
charge sheet, which
should have read s 51(1) of the Act, read with
Part I of Schedule 2.
[3] Before us, both
counsel limited their argument in regard to the propriety of the
sentences imposed on the appellant. Counsel
for the state, argued
that the sentence of 24 years’ imposed on the appellant for the
murder of the deceased was not unduly
harsh, having regard to the
brutality of the attack on the deceased and the previous convictions
of the appellant. Counsel for
the appellant rightly submitted that
there was no evidence that the murder of the deceased had been
planned or pre-meditated and
the murder therefore fell within the
parameters of s 51(2)(a) of the Act, read with Part II of Schedule 2.
[4] Before turning
to consider whether the sentences imposed on the appellant were
appropriate, a brief consideration of the background
facts is
necessary. The complainant, on the assault charge and the deceased,
on the murder charge were in an intimate relationship.
On Christmas
Eve, 24 December 2001, the appellant, the former lover of the
complainant killed the deceased, and threatened to assault
the
complainant. Prior to her transferring her affections to the
deceased, the complainant had been in an intimate relationship
with
the appellant for two years. Thereafter the complainant fell in love
with the deceased and was his lover until his demise
at the hands of
the appellant. During the period the complainant was in a
relationship with the deceased, she took out a protection
order
against the appellant to prohibit him from threatening and abusing
her. On the fateful night, and whilst she was on her way
to meet the
deceased, the complainant was accosted by the appellant, wielding a
knife. He was only partially dressed at the time.
The appellant
grabbed at her, dragged her along the road and threatened to kill
her. She managed to break loose from his clutches
and escape. The
appellant then attacked the deceased, who was in the same vicinity,
stabbing and stoning him and assaulting him
with sticks. He then
undressed the deceased, stabbing him several times in the genital
area leaving him for dead, naked and bleeding.
Later, after a crowd
had gathered, he returned, broke through the crowd and tried to
resume his assault, before running away again.
[5] In passing
sentence on the murder count, Hetisani J paid no regard to the
minimum sentence legislation.
1
He took into account the personal circumstances of the appellant
these being that he was a relatively young man with two children,
but
overemphasised the appellant’s previous convictions, two of
which were for assault and two for malicious damage to property,
wrongly concluding that such previous misdemeanours indicated that
the appellant had a propensity for violence. The court a quo
did not
have any regard to the fact that this was a crime of passion, the
appellant being the spurned lover, nor the fact that
the complainant
had taken out a domestic violence interdict to prevent the appellant
from abusing her.
[6] It is clear from
the evidence that the appellant’s attacks on the deceased and
his ex-lover were clearly committed without
rational thought and with
barely controllable emotion. This is evident from the manner in which
he attacked the deceased, thereafter
undressing him, exposing and
stabbing his genital area and leaving him for dead. The appellant was
clearly in a highly emotional
and disturbed state when he attacked
the deceased and the complainant. There was no pre-planning or
pre-meditation. Against that
background the aggravating factors are
as follows: The deceased was seriously assaulted, stabbed and killed.
The deceased died
from serious fractures of the head, severe
abrasions and deep lacerations. The court a quo misdirected itself in
imposing the sentences
that it did. The misdirection is material,
entitling this court to interfere.
[7] Having
considered all of the aforegoing, I am satisfied that the murder
falls within s 51(2)(a) of the Act read with Part II
of Schedule 2.
The relevant section provides:
‘(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence
a person who has been
convicted of an offence referred to in—
(a) Part II of
Schedule 2, in the case of-
(i) a first
offender, to imprisonment for a period not less than 15 years;
(ii) a second
offender of any such offence, to imprisonment for a period not less
than 20 years; and
(iii) a third or
subsequent offender of any such offence, to imprisonment for a period
not less than 25 years;’ (my emphasis)
[8] It is clear from
a reading of s 51(2)(a) that ‘any such offence’ is a
reference to an offence falling in the list
of offences set out in
Part II of Schedule 2. Because neither malicious damage to property
nor assault are offences mentioned in
Part II of Schedule 2, the
appellant is considered a ‘first offender’ for the
purposes of sentencing under s 51(2)(a)
of the Act. The penal
provision applicable to the appellant would be s 51(2)(a)(i);
imprisonment for a minimum period of not less
than 15 years, unless
there are substantial and compelling factors justifying a lower
sentence or reasons to impose a more severe
sentence.
[9] However this
does not mean that his previous convictions ought to be ignored. The
appellant’s previous convictions do
not redound in his favour
and must be taken into account in the assessment of whether
substantial and compelling circumstances
exist, justifying a sentence
less than 15 years on the murder count. In my view there are no
substantial and compelling factors
justifying such a departure nor
are there any circumstances warranting a more severe sentence.
Therefore it follows that a sentence
of 15 years’ imprisonment
for the murder is appropriate.
[10] As regards the
sentence of assault, we are mindful that the appellant has two
previous convictions for assault, however from
the sentences imposed,
I infer that they were relatively minor assaults there is no
indication that the appellant used excessive
force to attack the
complainant in this case, and she escaped without harm. There was no
basis for the court a quo to impose a
sentence of four years
imprisonment in the circumstances of this case. A sentence of two
years’ imprisonment on count two
is appropriate in the
circumstances.
[11] In the result
the following order is made:
1 The appeal against
the sentences on counts 1 and 2 is upheld.
2 The sentences
imposed by the court below are set aside and replaced with the
following sentences:
‘(i) On Count
1 – Murder – The accused is sentenced to 15 years’
imprisonment.
(ii) On Count 2 –
Assault – The accused is sentenced to 2 years’
imprisonment.’
3 The sentence on
count 2 is to run concurrently with the sentence on count 1. To the
extent necessary, the sentences are antedated
in terms of s 282 of
the
Criminal Procedure Act 51 of 1977
to 28 August 2007, being the
date upon which the sentences were imposed.
H Saldulker
Judge of Appeal
APPEARANCES
For
Appellant:
......................
Thomu AL
…
.........................................
Thohoyandou
Justice Centre
For
Respondent:
..................
Makhera RJ
…
...........................................
Department
of Public Prosecutions
…
...........................................
Thohoyandou
1
S
v Malgas
2001
(1) SACR 469
(SCA) para 8; ’First, a court was not to be given
a clean slate on which to inscribe whatever sentence it thought fit.
Instead, it was required to approach that question conscious of the
fact that the legislature has ordained life imprisonment or
the
particular prescribed period of imprisonment as the sentence which
should
ordinarily
be imposed for the commission of the listed crimes in the specified
circumstances. In short, the Legislature aimed at ensuring
a severe,
standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could
be seen to
be, truly convincing reasons for a different response.’