THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 983/2022 and 056/2024

In the matter between:
LOYISO LUDIDI FIRST APPELLANT
THANDO CHWAYI SECOND APPELLANT
SIVUYILE SHASHA THIRD APPELLANT
and
THE STATE RESPONDENT

Neutral citation: Loyiso Ludidi & Others v The State (983/2022 and 056/2024) [2024]
ZASCA 162 (29 November 2024)
Coram: NICHOLLS, HUGHES and MOLEFE JJA and DOLAMO and
BLOEM AJJA
Heard: Matter disposed of without oral hearing in terms of s 19(a) of the
Superior Courts Act 10 of 2013.
Delivered: 29 November 2024
Summary: Sentence of life imprisonment – whether a lengthy period of
incarceration as an awaiting trial prisoner can amount to a
substantial and compelling circumstance justifying a deviation from
the prescribed minimum sentence – section 51(3) of the Criminal
Law Amendment Act 105 of 1997.

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ORDER
___________________________________________________________________
On appeal from: Western Cape Division of the High Court , Cape Town (Gamble J,
sitting as court of first instance):
The appeal is dismissed.
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JUDGMENT
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Nicholls JA (Hughes, Molefe JJA and Dolamo and Bloem AJJA concurring):
[1] Does the time an accused person has spent as an ‘awaiting trial prisoner’
constitute substantial and compelling circumstances whe n a statutorily ordained
sentence of life imprisonment has been imposed? That is the question to be answered
in this appeal. The Western Cape Division of the High Court (the high court) found that
it did not, but granted leave to appeal to this Court.

[2] The facts, as detailed in the judgment on conviction, are briefly as follows. Mr
Loyiso Ludidi (Mr Ludidi), Mr Thando Chwayi (Mr Chwayi) and Mr Sivuyile Shasha (Mr
Shasha), the appellants herein, were convicted of robbery with aggravating
circumstances, and murder on 19 May 2022 . On the evening of 23 June 2016, the
appellants entered the home of Mr Pasika Kwaza (the deceased) whom they shot and
killed while he was lying on the bed with Ms Patience Kwaza (Ms Kwaza), his wife. Ms
Kwaza was subsequently also charged with the murder of her husband.

[3] The marriage between Ms Kwaza and the deceased had been an unhappy one.
The deceased had physically abused her over an extended period which resulted in
her taking out a domestic violence interdict against him. She had also filed a complaint
for non-payment of maintenance which was due to be heard by the maintenance court
later that year. During 2016, Ms Kwaza entered into a romantic relationship with a local
councillor which was apparently widely known in the community.

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[4] As the high court stated, instead of dissolving the marriage through divorce,
‘the deceased chose death’. He took out a hit on his wife and procured the services of
Mr Shasha to put this into effect. The high court found that it was likely that the decision
to kill Ms Kwaza was taken once the deceased found out that his wife was having an
extra-marital affair. Mr Shasha then enlisted the help of the other appellants, Mr
Chwayi and Mr Ludidi.

[5] When Mr Chwayi found out that the subject of the hit was his friend and relative,
Ms Kwaza, he informed her of what her husband had asked them to do . The target
then changed from Ms Kwaza to her husband, the deceased. The appellants were
happy with this arrangement provided Ms Kwaza paid them for their services. On the
night of 23 June 2016, Mr Shasha and Mr Ludidi entered the house and delivered two
fatal gunshots to the head of the deceased. During the course of the attack, items such
as cell phones were taken at gunpoint . Mr Chwayi, because he was known in the
Kwaza household, did not participate in the attack but was the man behind the scenes.

[6] Mr Ludidi, the first appellant and Mr Shasha , the third appellant, were found
guilty of robbery with aggravating circumstances, murder, unlawful possession of a
firearm and unlawful possession of ammunition. Mr Chwayi, the second appellant, and
Ms Kwaza were found guilty of murder only.

[7] When sentencing finally took place, the accused had been in custody for a
period of five years and eight months. Although Ms Kwaza was found guilty of murder,
she was not sentenced to life imprisonment. The high court found that the hit ordered
on her husband was a pre -emptive strike to remove a potential threat as it was likely
that he would have killed her had she gone to the polic e. Her reduced moral
blameworthiness and lengthy pre -sentencing detention were considered to be
substantial and compelling circumstances warranting a lesser sentence than the

substantial and compelling circumstances warranting a lesser sentence than the
prescribed minimum sentence. Ms Kwaza was given a finite sentence of 12 year s’
imprisonment. She is not an appellant in this matter.

[8] In granting leave to appeal against sentence, the high court found that the
sentences were appropriate in the circumstances of a contract killing and would

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otherwise not warrant consideration on appeal. However, said the high court, in view
of the fact that this Court has not finally determined the impact of lengthy pre -
sentencing incarceration where the sentence ultimately imposed is one of life
imprisonment, leave to appeal was granted. Thus, the appellants appeal against their
sentences on the basis of whether their lengthy pre-sentencing incarceration amounts
to subst antial and compelling circumstances where the sentence is one of life
imprisonment.

[9] The context in which the offence occurred is always germane to sentence. In
S v Malgas ,1 which is the locus classicus of what constitutes substantial and
compelling circumstances warranting a deviation from the prescribed minimum
sentence, the court said:
‘If the sentencing court on consideration of the circumstances of the particular case is satisfied
that they render the prescribed sentence unjust in that it would be disproportionate to the
crime, the criminal and the needs of society, so that an injustice would be done by imposing
that sentence, it is entitled to impose a lesser sentence.’2

[10] That proportionality is central to whether a sentence is cruel, inhumane or
degrading was confirmed by the Constitutional Court in S v Dodo .3 It is not just
proportionality between the mandatory sentence legislated upon, and the sentence
which the offence merit s, that would lead to an infringement of the right not to be
deprived of freedo m arbitrarily without just cause in terms of s 12(1)(a) of the
Constitution, but rather whether it is grossly disproportionate.

[11] Courts have considered whether the length of time spent in custody as an
‘awaiting trial’ prisoner is a substantial and compelling circumstance warranting the
imposition of a lesser sentence. In 2007 the full court of the Gauteng Division of the
High Court, Johannesburg in S v Brophy and Another,4 reduced finite sentences on

High Court, Johannesburg in S v Brophy and Another,4 reduced finite sentences on
the basis that the time spent in custody while awaiting trial was a substantial and
compelling circumstance. Following a Canadian decision of Gravino (70/71) 13 Crim
LQ 434 (Quebec Court of Appeal), the full court held that the period spent in custody

1 S v Malgas [2001] 3 All SA 220 (A).
2 Ibid para 25.
3 S v Dodo [2001] ZACC 16; 2001 (3) SA 382 CC; 2001 (5) BCLR 423 (CC) paras 37-39.
4 S v Brophy and Another 2007 (2) SACR 56 (W) paras 16-19.

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pre-sentencing was equivalent to a sentence twice that length. This was because of
the harsh conditions that awaiting trial prisoners were subjected to , in comparison to
convicted prisoners. The court then reduced the sentences by subtracting the time
spent in prison awaiting trial by each appellant and multiplying it by two.

[12] This approach was rejected by th is Court in Radebe and Another v S ,5 which
criticised the application of any mechanical formula. Rather, the time spent in custody
awaiting trial is one of the factors to consider when determining whether there is
justification for a lesser sentence than the prescribed minimum sentence. The
circumstances of each case should be assessed on its own merits. Similarly in Director
of Public Prosecutions North Gauteng: Pretoria v Gcwala and Others,6 this Court held
that the trial court misdirected itself by applying the formulas and increased the
sentences of imprisonment accordingly.

[13] It is now trite law that in respect of finite sentences there is no hard and fast
rule as to the weight to be afforded to pre-sentencing incarceration. It is but one of the
factors to take into consideration when determining the existence of substantial and
compelling circumstances.7 In addition, a sentencing court should take into account
the reasons for the prolonged period of detention prior to sentencing.8

[14] In S v Solomon and Others ,9 commenting on the effect of lengthy pre -
sentencing incarcerations on life imprisonment, Rogers J endors ed the view of
Goosen J, as he was then, in S v Kammies.10 The conceptual difficulty with a sentence
that has no determinate maximum period was acknowledged. A court cannot approach
a life sentence as anything other than a sentence which is imposed for the rest of that
person’s life. It cannot be ‘reduced’ by the period spent in custody awaiting trial and it
would be improper for a court to take into the account the possibility of parole. 11

would be improper for a court to take into the account the possibility of parole. 11
Goosen J suggested that the most appropriate course of conduct would be to ante

5 Radebe and Another v S [2013] ZASCA 31; 2013 (2) SACR 165 (SCA) paras 13-14.
6 Director of Public Prosecutions North Gauteng: Pretoria v Gcwala and Others [2014] ZASCA 44;
2014 (2) SACR 337 (SCA) paras 26-30.
7 Radebe paras 13-14; Gcwala para 16.
8 Radebe para 14.
9 S v Solomon and Others [2020] ZAWCHC 118; 2021 (1) SACR 533 (WCC) para 24.
10S v Kammies 2019 JDR 2600 (ECP) para 38.
11S v Matala 2003(1) SACR 80 (SCA) para 7; Mvubu v S [2016] ZASCA para 25.

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date the sentence. In Solomon, the court held that life imprisonment means a sentence
which extends for as long as that person is alive. 12 Absent the prospect of parole, a
person ‘would not have been released sooner on the hypothesis of no interval between
arrest and sentencing’.

[15] This Court, in dealing with a sentence of life imprisonment in Ncgobo v S,13
confirmed that the period spent in custody before conviction and sentencing is not, on
its own, a substantial and compelling circumstance. It is merely a factor in determining
whether the sentence imposed is disproportionate and unjust. It was held that the two
years spent in custody would make a minimal impact on a sentence of life
imprisonment and did not render the sentence shockingly disproportionate.14

[16] Here, the period spent in custody of five years and eight months was indeed a
long one. There were inordinate delays. The high court requested the parties to
address the reason for the delay at the commencement of the sentencing procedures.
The high court concluded that the delays were largely attributable to the appellants
and their legal representatives. Initially the appellants launched a protracted and
unsuccessful bail appeal with a result that the first pre-trial conference in the high court
was more than two years after their arrest. The pre -trial procedures wer e unduly
delayed due to ‘serial non -attendances’ by the legal representative who represented
Mr Ludidi and Mr Chwayi. When the matter had been in pre-trial management for two
years in the high court, the judge case-managing the trial refused to certify it ready for
trial until the legal representative made an appearance at court. It was then set down
for trial six months later on 3 August 2021. Thereafter, it seemed that apart from the
disruptions due to COVID, the trial ran relatively smoothly until completion on 22
February 2022. A lengthy and comprehensive judgment was delivered on 18 -19 May

February 2022. A lengthy and comprehensive judgment was delivered on 18 -19 May
2022. It appears that had they wished to do so, the appellants and their legal
representatives could have considerably shortened the period they spent awaiting trial.


12 Solomon para 27.
13 Ncgobo v S [2018] ZASCA 6; 2018 (1) SACR 479 (SCA) para 7.
14 Ibid para 21.

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[17] If one turns to the offences for which the appellants were convicted, these were
heinous. They were hired assassins willing to murder who ever was identified if they
were paid for the deed. There is nothing disproportionate about their sentences of life
imprisonment. Regarding the period in custody as awaiting trial prisoners, unless this
is an exceptionally long period of time to which the conduct of the accused persons
has not materially contributed, this in my view, can never in and of itself , be a
substantial and compelling circumstance where life imprisonment is imposed. The role
of courts is to ensure that any sentence passed is a fair one having regard to the crime
committed and the individual circumstances of the accused.

[18] The high court did not misdirect itself when it found that the lengthy pre -
sentencing incarceration period did not amount to substantial and compelling
circumstances justifying a deviation from the prescribed minimum sentence of life
imprisonment.

[19] In the result, the following order is made:
The appeal is dismissed.





C E HEATON NICHOLLS
JUDGE OF APPEAL

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Heads of Arguments prepared by:

For the appellants: I B M G Levendall
Instructed by: Legal Aid, Cape Town
Legal Aid, Bloemfontein

For the respondent: L Snyman
Instructed by: Director of Public Prosecutions, Western
Cape
Director of Public Prosecutions,
Bloemfontein.