The Director of Public Prosecutions North Gauteng: Pretoria v Skhosiphi Gcwala, Eric Themba Nthombela and Josia Neo Moloi

The three respondents were convicted of murdering Mrs Thandi Mtsweni, the deputy mayor of the Govan Mbeki Municipality, on 27 June 2007 in the district of Leslie. The deceased was killed because she had cancelled tenders awarded to Ms Sibongile Florence Lukhele. Ms Lukhele orchestrated the murder by enlisting Madoda Nkambule, who in turn recruited the three respondents for a fee of R60,000. The deceased was shot multiple times at her home as she alighted from her vehicle with her husband and son. Ms Lukhele pleaded guilty separately and was sentenced to 20 years' imprisonment. The evidence established that all three respondents had a common purpose to murder the deceased, though it was unclear which one actually shot her. The respondents had spent four years in custody awaiting trial. The high court imposed an effective sentence of 12 years' imprisonment (22 years with 10 years suspended). The DPP appealed against sentence.

• Whether the high court misdirected itself in calculating the period spent in custody awaiting trial by doubling it from four to eight years
• Whether the high court misdirected itself in imposing a non-parole period
• Whether the high court properly considered all relevant factors in determining if substantial and compelling circumstances existed to deviate from the prescribed minimum sentence of life imprisonment
• What weight should be given to the period spent in custody awaiting trial when determining whether to deviate from prescribed minimum sentences
• Whether the sentence imposed was proportionate to the crime committed in all the circumstances

The appeal against sentence was upheld. The high court's sentence was set aside and replaced with a sentence of 20 years' imprisonment for each of the three respondents, with effect from 30 June 2011. The sentence being served by the second accused was to run concurrently with the sentence now imposed.

The period spent in custody by a prisoner awaiting trial is a factor to be taken into account in determining whether substantial and compelling circumstances exist such that a prescribed minimum sentence may be departed from. There is no rule of thumb or mechanical formula to determine what weight is to be given to that period. Each case must be decided having regard to all circumstances that justify a lesser sentence. The test is not whether the period of detention on its own constitutes a substantial or compelling circumstance, but whether the sentence in all the circumstances, including the period spent in detention prior to conviction and sentencing, is proportionate to the crime committed and just. The sentencing court should consider in all cases whether the period of imprisonment proposed is proportionate to the crime committed, taking into account, for that purpose, the period spent in custody awaiting trial.

The court observed that communities have been riddled with offences of killing officers holding decisive positions in government, especially those who refuse to subscribe to corruption. The court noted that while public calls for vengeance cannot dictate sentencing, courts must nonetheless properly consider evidence about the impact of crimes on victims' families and communities. Lewis JA commented that the rule of thumb from S v Brophy that imprisonment while awaiting trial is equivalent to a sentence of twice that length cannot be justified, particularly given the length of periods spent in custody. The court observed that people who take another's life for financial gain must be severely punished.

This case is significant in South African sentencing law for establishing that there is no fixed rule or formula for calculating how much weight to give to the period an accused spent in custody awaiting trial. The judgment clarifies that pre-trial detention is one factor among many to be considered in the overall assessment of whether a proposed sentence is proportionate to the crime committed. The case also reinforces the principle from S v Malgas and S v Vilakazi that when determining whether substantial and compelling circumstances exist to deviate from prescribed minimum sentences, courts must consider whether the prescribed sentence would be disproportionate and unjust in all the circumstances. The judgment further confirms that non-parole periods should only be imposed in exceptional circumstances. It provides important guidance on the proper approach to sentencing in cases involving politically motivated murders committed for financial gain.