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[2014] ZASCA 43
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Mudau v S (547/13) [2014] ZASCA 43 (31 March 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 547/13
In the matter
between:
NYADZANI
SAMUEL
MUDAU
......................................................................
APPELLANT
and
THE
STATE
....................................................................................................
RESPONDENT
Neutral
citation
:
Mudau
v State
(547/13)
[2014] ZASCA 43
(31
March 2014)
Coram:
Ponnan JA, Swain and Mathopo AJJA
Heard:
5 March 2014
Delivered:
31 March 2014
Summary:
Sentence – minimum sentence –
General Law Amendment Act 105 of 1997 – sentence imposed
startlingly inappropriate
– balancing of aggravating features
against mitigating factors.
ORDER
On
appeal from:
Limpopo
High Court, Thohoyandou (Lukoto J sitting as court of first
instance):
1.
The appeal against sentence is upheld.
2.
The sentence of 40 years’ imprisonment imposed by the trial
court is set aside and replaced with a sentence of 20 years’
imprisonment.
3.
The sentence is in terms of
s 282
of the
Criminal Procedure Act 51 of
1977
ante dated to the 22 May 2000 being the date upon which the
sentence was imposed.
JUDGMENT
Mathopo
AJA
(Ponnan JA and Swain AJA
concurring):
[1]
Mr Samuel Mudau appeared before Lukoto J, charged with the murder of
his wife. He pleaded guilty and was convicted as charged.
In his plea
explanation he admitted to assaulting his wife with a stick several
times all over her body with the result that she
died in consequence
of the injuries inflicted upon her by him. The trial court applied
the provisions of the General Law Amendment
Act 105 of 1997 (the Act)
and sentenced him to 40 years’ imprisonment. The appellant is
appealing against sentence with the
leave of the court below (per
Mann AJ).
[2]
This appeal is based on two grounds. First, that the court below
applied the sentence prescribed by the Act without prior warning
to
the appellant. Second, that the sentence imposed by the trial court
is disturbingly or startlingly inappropriate so as to induce
a sense
of shock.
[3]
It was submitted that the trial judge misdirected himself when he
sentenced the appellant in terms of the Act without any prior
warning
to him or his counsel. It is apparent from the record that the
provisions of the Act were pertinently brought to the attention
of
the appellant and his counsel. The record reveals that the trial
judge had even remarked during sentencing that the prosecutor
had
read the provisions of the applicable legislation to the appellant
before he pleaded. Furthermore, the record is replete with
remarks by
the trial judge that the Act was applicable. In his judgment the
trial judge alluded to the fact that the appellant
was pertinently
warned that upon conviction he faced the prospect that the minimum
sentence prescribed by the Act would apply to
him. I am thus
satisfied that the appellant was properly warned of the applicability
of the Act to him in the event of conviction.
It follows that this
submission has no merit.
[4]
Turning to the second submission: The appellant testified in
mitigation that he was 48 years old, married to the deceased, had
one
child with her who was six months old at the time of the offence and
the child was currently living with his maternal grandparents.
He has
three children of tender age with his previous wife. All three
children are school going and the appellant is responsible
for their
maintenance. Prior to his arrest he was employed as a cleaner. He has
two relevant previous convictions – one for
culpable homicide
committed during 1992 and, another for assault committed during 1995.
Both offences indicate a propensity for
violence. It was submitted
that the fact that he pleaded guilty at the outset of the trial is a
strongly mitigating factor. The
trial judge disagreed. He was not
satisfied that there was genuine remorse on his part because when
questioned by the court as
to why he killed the deceased, he
equivocated. Initially he said the deceased hit him with a stick and
when confronted with the
version that he started hitting her because
he suspected that she was with her lover, he changed his version and
admitted that
it was after he hit her with a stick, that the thought
of her lover crossed his mind.
[5] The trial court
considered his nonchalant attitude in not checking on the condition
of the deceased after the brutal attack
and the fact that he slept
until the middle of the night until he was woken by his crying child,
as indicative of a lack of remorse.
What is worse is that after he
was roused the appellant failed to secure medical assistance for his
wife. I agree with the trial
judge that this conduct does not
manifest genuine remorse. Genuine remorse was aptly described by
Ponnan JA in
S v Matyityi
2011 (1) SACR 40
(SCA) para 13 when
he said the following:
‘
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one’s error. Whether the offender is sincerely remorseful,
and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the surrounding actions
of
the accused, rather than what he says in court, that one should
rather look. In order for the remorse to be a valid consideration,
the penitence must be sincere and the accused must take the court
fully into his or her confidence. Until and unless that happens,
the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can find that an accused person
is
genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the accused to commit the deed;
what has
since provoked his or her change of heart; and whether he or she does
indeed have a true appreciation of the consequences
of those
actions.’
[6]
Domestic violence has become a scourge in our society and should not
be treated lightly, but deplored and also severely punished.
Hardly a
day passes without a report in the media of a woman or child being
beaten, raped or even killed in this country. Many
women and children
live in constant fear. This is in some respects a negation of many of
their fundamental rights such as equality,
human dignity and bodily
integrity. This was well articulated in
S v Chapman
[1997] ZASCA 45
;
1997 (3)
SA 341
(SCA) at 345A-B when this Court said the following:
‘
Women
in this country have a legitimate claim to walk peacefully on the
streets to enjoy their shopping and their entertainment,
to go and
come from work, and to enjoy the peace and tranquillity of their
homes without the fear, the apprehension and the insecurity
which
constantly diminishes the quality and enjoyment of their lives.’
See
also
S v Baloyi
[1999] ZACC 19
;
2000 (1) SACR 81(CC)
at para 11.
[7]
The evidence on record suggests that the appellant killed the
deceased on the mere suspicion that she had an illicit love affair.
His conduct is morally reprehensible. The deceased was killed in the
one place that she ought to have been safe, the sanctity of
her own
home. The appellant exploited her vulnerability and abused the trust
that she ought to have had in him as a husband.
[8] There is one
further aggravating factor. The post mortem report indicates that the
deceased was beaten all over her body. The
trial judge remarked that
no part of her body or person escaped the brutality of the appellant.
There is no doubt that this was
a vicious assault on a defenceless
and vulnerable woman.
[9]
However, the record does not show that the mitigating factors were
properly considered by the trial judge as they ought to have
been.
Nor was any attempt made to balance the aggravating features that I
have referred to as against such mitigating factors as
must weigh in
the appellant’s favour. In failing to afford any recognition to
those factors in the determination of an appropriate
sentence, the
trial court disregarded the traditional triad. See
S v Zinn
1969
(2) SA 537
(A) at 540. Instead what the learned judge did was to
over-emphasise the public interest and general deterrence. This is a
misdirection.
This Court in
S v Scott-Crossley
2008 (1) SACR
223
(SCA) para 35 said the following:
‘
Plainly
any sentence imposed must have deterrent and retributive force. But
of course one must not sacrifice an accused person on
the altar of
deterrence. Whilst deterrence and retribution are legitimate elements
of punishments, they are not the only ones,
or for that matter, even
the overriding ones.’
The judgment further
states─
‘
(i)t
is true that it is in the interests of justice that crime should be
punished. However, punishment that is excessive serves
neither the
interests of justice nor those of society.’
[10]
In the course of his judgement the judge remarked that if the
appellant had not pleaded guilty, he would have imposed a sentence
of
50 years’ imprisonment. Why and how he thought 50 years’
imprisonment would be appropriate, is not explained. The
sentence
imposed is startlingly inappropriate. This Court is thus at large to
interfere.
[11]
Taking all these factors into account, I am satisfied that although
the appellant deserves a lengthy period of imprisonment,
a sentence
of 40 years’ imprisonment is totally out of proportion to the
offence, the interests of society and fails to accord
appropriate
weight to the personal circumstances of the appellant. In my view, a
sentence of 20 years’ imprisonment would
give recognition to
the justifiable abhorrence invoked by the callousness of the deed
whilst not destroying the appellant on the
altar of general
deterrence. Furthermore, it will also afford the appellant the
opportunity to rehabilitate himself should that
prove possible. The
appeal therefore succeeds.
[12]
The following order is made:
1.
The appeal against sentence is upheld.
2.
The sentence of 40 years’ imprisonment imposed by the trial
court is set aside and replaced with a sentence of 20 years’
imprisonment.
3. The sentence is
in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
ante dated
to the 22 May 2000 being the date upon which the sentence was
imposed.
R
S Mathopo
Acting Judge of
Appeal
Appearances
For
the Appellant: M Madima
Instructed
by:
Thohoyandou
Justice Centre
c/o
Bloemfontein Justice Centre
For the Respondent:
N R Nekhambele
Instructed
by:
The
Director of Public Prosecutions, Thohoyandou
c/o
Director of Public Prosecutions, Bloemfontein