Does the time an accused person has spent as an awaiting trial prisoner constitute substantial and compelling circumstances when a statutorily ordained sentence of life imprisonment has been imposed?
This was the question posed to the Supreme Court of Appeal following an appeal by hitmen who complained about their sentences.
Each received a life imprisonment sentence, but they turned to the SCA as they argued it was too harsh as they had to spend years awaiting trial behind bars.
Loyiso Ludidi and Thando Chwayi, as well as Sivuyile Shasha were convicted of robbery with aggravating circumstances and murder.
On the evening of June 23, 2016, the appellants entered the home of Pasika Kwaza (the deceased) whom they shot and killed while he was lying on the bed with Patience Kwaza, his wife.
Ms Kwaza was subsequently also charged with the murder of her husband, but she received a 12-year jail sentence, which she did not appeal.
The marriage between 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.
During 2016, Kwaza entered into a romantic relationship with a local councillor, which was apparently widely known in the community.
Instead of dissolving the marriage through divorce, it was said that the deceased “chose death.” He took out a hit on his wife and obtained the services of Shasha to kill her. He, in turn, enlisted the help of the other appellants, Mr Chwayi and Mr Ludidi.
The Western Cape High Court, which earlier sentenced the killers, 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 affair.
When Chwayi found out that the subject of the hit was his friend and relative, Ms Kwaza, he told her of what her husband was planning. 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 the killing, Shasha and Ludidi entered the house and delivered two fatal gunshots to the head of the deceased.
During the attack, items such as cell phones were taken at gunpoint. Chwayi, because he was known in the Kwaza household, did not participate in the attack but was the man behind the scenes.
Ludidi and Shasha were found guilty of robbery with aggravating circumstances, murder, unlawful possession of a firearm, and unlawful possession of ammunition. Chwayi and Kwaza were found guilty of murder only.
When sentencing finally took place, the accused had been in custody for five years and eight months. Although 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 police.
Pretoria News