THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 544/13

In the matter between

Not Reportable

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.
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.’
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:

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.’

‘(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.
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.’
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