THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 645/98
In the matter between
AMYNA SHAHNAAZ FAKUDE
First Appellant
DUMILE ELLIOT NDUKI
Second Appellant
SIPHO THOMAS MLANDU
Third Appellant
MORRIS MASIKHISANE NTSHANTSHU
Fourth Appellant
and
THE STATE
Respondent
CORAM:
MARAIS, STREICHER JJA et MPATI AJA
DATE HEARD:
12 November 1999
DATE DELIVERED:
19 November 1999
Sentence:   Unjustified disparity as between co-accused.
JUDGMENT
MARAIS JA

MARAIS JA:
[1]          The four appellants were convicted on 18 November 1996 in the
Witwatersrand Local Division of the High Court by Mailula J and assessors of
murder.  They were sentenced to terms of imprisonment varying from 35 years to
23 years.  With leave of the court a quo they appeal against the sentences imposed.
The four appellants were respectively accused 1, 3, 4 and 5 at the trial.  Accused
2 died after the trial had commenced.  I shall refer to appellants as they were
referred to at the trial.
[2]          It was found that accused 1 was a party to a conspiracy to murder her
husband and that the plan was executed by the remaining accused.  Accused 2 was
the brother of accused 1.  Accused 3 drove accused 2, 4 and 5 and another person
to a point near the home of the deceased and accused 1.  While he waited for them
at the car, they lay in wait for the deceased who was due to return to his home late
that night.  When he arrived accused 2, 4 and 5 attacked him and hacked and
stabbed him to death in the street outside his home.  The weapons used were
pangas and assegais.  Accused 1 remained in the house while this was taking place,
left the deceased lying in the road after the attack upon him had ended, and

feigned shock the next morning when the deceased’s body was found in the street.
[3]          None of the four accused upon whom sentence was passed had previous
convictions.  Accused 1 was 41 years of age at the time of sentence.  Accused 3
was 42 years of age.  Accused 4 was 35 years of age.  Accused 5 was 34 years of
age.  They had all been in custody since November 1995.  All the accused had
dependants of one kind or another.  Their respective levels of education  varied
greatly.  Accused 1 was a university graduate;  accused 3 and 4 did not provide any
information on that score but the former was employed as a driver and the latter
in the cleansing department of the Kempton Park Municipality which suggests that
their educational attainments were not high.  Accused 5 attained standard one.
Precisely why accused 1 was content to have her husband killed did not emerge
entirely clearly at the trial.  However, there had been marital discord and hostility
between the members of accused 1's family and the members of the deceased’s
family.  Both the deceased and accused 1 had children born of previous
relationships and this too gave rise to problems.  Accused 1 and the deceased had
been separated for some time but had commenced living together again before the

deceased was killed.
[4]          In sentencing the accused the trial judge took into account the relevant
personal circumstances of each accused, the seriousness of the crime, and the
interests of the public.  Counsel for the appellants’ attack upon the sentences was
based upon a submission that the trial judge had emphasised unduly the
seriousness of the crime and had not paid sufficient regard to the personal
circumstances of the appellants and the desirability of imposing sentences which
would leave scope for the rehabilitation of the appellants.  It was also contended
that there was an unjustifiable disparity between the sentence of 35 years imposed
upon accused 1 and the sentences of 25 years and 23 years imposed upon the
remaining accused.
[5]          Save in one respect which enures only to the benefit of accused 5, I am
unable to agree that the weight accorded by the trial judge to the relevant factors
was inappropriate.  She was criticised for failing to spell out in terms why the
personal circumstances of the appellants were not assigned greater weight than
they were.  The answer seems relatively plain: the gravity of the crime, the
endemic nature of violence in the East Rand, and the need to convey a clear

message to those who might be tempted to indulge in such violence that it would
not be tolerated, had to be given priority.  It was a case in which the need to
impose sentences which would be seen to be sufficiently retributive and which
would  have a sufficiently deterrent effect overshadowed the lesser need to impose
sentences which would facilitate rehabilitation.
[6]          It was suggested that the absence of any sign of remorse had been taken
into account as an aggravating factor and that, in doing so, the trial court erred.
I cannot agree.  Genuine remorse is a factor which may mitigate punishment.  To
remark upon its absence means no more than that it cannot operate as a mitigating
factor.  In my view there is no ground upon which it can be successfully argued
that a sentence of 25 years was inappropriate.  I shall return to the disparity
between the sentence of 25 years and the sentence of 23 years after I have dealt
with the position of accused 1.
[7]          It has been laid down on a number of occasions in this court that
unjustifiable disparities in sentences imposed for the same crime must be avoided.
However, it has been emphasised in those cases that an inappropriately lenient
sentence imposed upon one person convicted of the crime does not entitle another

to insist upon that inappropriate sentence being replicated.  It is only where the
former sentence is a sentence which cannot be said to be inappropriate that the
sentence subsequently imposed should not differ markedly from it.  It goes
without saying of course, that truly significant distinctions between the roles
played by, and the personal circumstances of, the accused persons whose positions
are being compared with one another will obviate the need for parity and
necessitate different treatment.  See S v Marx 1989 (1) SA 222 (A); S v Goldman
1990 (1) SACR 1 (A); S v Roman and Others 1994 (1) SACR 436 (A) at 443-444;
S v Blank 1995 (1) SACR 62 (A) at 70-72 and S v Mhlahaza and Another 1997
(1) SACR 515 (A) at 524.
[8]          Moral philosophers may argue about whose conduct is to be more
roundly condemned:  that of a wife who conspires with others to kill her husband
but who takes no physical part in the doing of the deed, or that of those who
physically do the deed.  Courts of law are less inclined to draw distinctions which
will find no resonance in the community at large.  If there is a distinction, it seems
to me to be of insufficient moment to justify a disparity in sentence as great as that
which exists here.  The trial judge’s comments in this regard were not entirely

harmonious.  While regarding the appellants as “equally blameworthy” she
described accused 1 as the instigator and mastermind of the plot to kill the
deceased.  The evidence falls short of establishing beyond reasonable doubt that
such was indeed the case.  Her brother, accused 2, may have played that role.  Be
that as it may, I am unable to see any good reason for sentencing accused 1 any
differently from accused 3 and 4.  She too should have been sentenced to 25 years
imprisonment.
[9]          I have considered whether, by parity of reasoning, all the appellants
should not have been sentenced to 23 years imprisonment.  I think not.  The
difference is this.  The reason why the trial court sentenced accused 5 to 23 years
and not 25 years imprisonment was because his counsel, albeit belatedly  and
during his address in mitigation of sentence, had stated that accused 5 had been
offered some money and that he had yielded to temptation and become involved
in the attack on the deceased.  If that was the trial judge’s reason for distinguishing
between accused 5 and accused 3 and 4 it was not, in my view, a valid distinction.
As the learned judge herself later said “It is of course an aggravating feature for
any person to agree to kill another for financial gain.  No civil society can tolerate

the use of hired assassins for any reason whatsoever”.  She may have regarded
counsel’s statement as carrying with it a tacit implication of remorse.  If so, she did
not say so.  I am not satisfied therefore that the amelioration of the sentence
imposed upon accused 5 was justified.  Unless it was justified, it cannot be used
as the touchstone in deciding whether or not the different sentences imposed upon
the other accused were unjustifiably disparate.
[10]          In the result the appeal of accused 1 (first appellant) against the sentence
of 35 years imprisonment is upheld and her sentence is reduced to 25 years
imprisonment.  In so far as it may be necessary to do so the sentence is antedated
to 13 February 1997.  The appeals of accused 3 (second appellant), accused 4
(third appellant) and accused 5 (fourth appellant) are dismissed.

R M MARAIS
JUDGE OF APPEAL
STREICHER JA)
CONCUR
MPATI        AJA)