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 (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 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