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[2018] ZAWCHC 10
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S v Jordaan and Others (CC20/2017) [2018] ZAWCHC 10 (7 February 2018)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. CC20/2017
Before: The Hon. Mr Justice Binns-Ward
Hearing on sentence (accused 1, 2 and 4 only): 5 February 2018
Judgment
on sentence delivered: 7 February 2018
In
the matter between:
THE
STATE
and
NIZAAM
JORDAAN
Accused
1
SHALOMODIEN
DOLLIE
Accused
2
MANZAN
MAART
Accused
3
ROZARIO
LOTTERING
Accused
4
YUSRIE
BENTING
Accused
5
JUDGMENT
BINNS-WARD J:
[1]
Accused 3 and 5 were acquitted and
discharged on all counts. This judgment concerns the sentence
proceedings in respect of
the three accused who were convicted on
various of the charges brought in terms of the indictment. It
also deals with the
enquiry that I initiated in terms of
s 342A
of the
Criminal Procedure Act 51 of 1977
into the mid-trial delay
occasioned by a postponement that I reluctantly allowed on account of
matters extraneous to the proceedings
in this court.
[2]
Accused 2 was found guilty of the attempted
murder by shooting of Luqmaan Josephs on the evening of 24 December
2015, and accused
1 and 4 of the murder by shooting of Ashley Davids
on the evening of 27 April 2016. Accused 2 and
accused 1
were also convicted in relation to each of the
aforementioned incidents of the unlawful possession of a firearm and
ammunition
in contravention of the
Firearms Control Act 60 of 2000
.
It is convenient for sentence purposes to deal first with accused 2
and then with accused 1 and 4.
[3]
Before doing so, however, it is appropriate
to discuss a factor that is common to all three of the accused and of
the matters in
respect of which they were convicted. The
offences in both incidents were manifestations of gang-related
violence in the
notoriously gang infested area of Manenberg in which
the accused and their victims lived and had grown up. I must
say at
the outset that I am acutely conscious of the very real
disadvantages to which young persons like the accused are subject in
that
environment. The circumstances are such that they and
their peers are under significant temptation and enticement to become
involved in gang membership and activity. This comes about not
only because of pervasive poverty and unemployment, but also
because
of the prevailing social norms in the area, which seem to accept gang
culture as part of the way of life. This is
manifest by the way
in which the various gangs that operate in the area have carved out
territories within the suburb in which
one or other of them holds
sway and influence. It is also borne out by the evidence that
such is the hold of gang culture
in the area that there is little
respect for the forces of law and order. The police are openly
defied and disregarded on
occasion. It is a place where life is
treated cheaply, and killings and revenge killings are the order of
the day.
It is clear from the evidence that the unlawful
possession of firearms and ammunition is commonplace in the area and
that such
munitions are regularly used to lethal effect.
[4]
Recognition of these factors means that
one’s moral condemnation of the accused’s involvement in
the gangs and their
criminal activities must be measured. They
are, each of them, persons against whom the odds have been stacked
from the outset,
which in a material sense is an indictment of our
far from perfect society. Recognising these factors, however,
does not
afford proper reason for the adoption by the court of an
attitude of maudlin sympathy for them in regard to the very serious
offences
in which they involved themselves. They knew that what
they were doing was criminal and they must be held appropriately
accountable
for their wrongdoing. Society in general, and the
law abiding members of their own community, would be grievously let
down
if the court were not to mark their misdeeds with the gravity
they deserve. I also recognise that it takes courage for many
of the civilian witnesses from that community to come to court and
testify in such matters. The faith that such persons have
shown
in the criminal justice system should not be betrayed by a misguided
show of excess sympathy or understanding for the situation
of the
accused.
[5]
I mention these factors at the beginning of
this judgment to highlight the difficult task imposed on the courts
in deciding on sentences
in these cases. Sentences that will
strike an appropriate balance between the personal circumstances of
the accused, the
seriousness of the crimes of which they have been
convicted and the legitimate expectations and legal interests of the
community.
The community in this regard means not only the
people of Manenberg, but also society in general. There can be
no hope for
the creation of a society with a respect for law and
human rights if violent crimes like murder and the associated
offences of
unlawful possession of firearms and ammunition are not
heavily punished. Consciousness of the circumstances in which
the
accused became involved in their commission can serve as no more
than a tempering effect when it comes to determining the measure
of
the substantial punishment that must be imposed on each of them.
[6]
The accused are, each of them, young men,
who ideally should be standing at the threshold of the most
productive stage of their
lives. Sadly, they have each
undermined their prospects, limited as those were by their low levels
of education and apparently
relatively limited intellects, of
becoming contributing members of society by joining criminal gangs
and being drawn into their
nefarious activities. Accused 1 has
expressed no remorse for his actions, whilst accused 2 and 4
expressed regret for their
actions only after they had been
convicted. At least in accused 2’s case he did not put up
a false version during the
trial, and rather adopted a position,
which he was legally entitled to, of putting the state to the proof
its case.
[7]
I have had regard to the content of the
probation officer’s report that was put in in respect of
accused 2. It confirms
that he grew up in difficult
circumstances. Factors that count in his favour are that he was
in regular employment and is
reported to have been an observant
member of his Muslim faith, although it is difficult to square the
latter with his abuse of
alcohol and drugs. He contributed to
the upkeep of his family and dependent child. These positive
factors were insufficient
however to keep him away from drugs and
gangs. Indeed his underworld activities appear to have led to
his estrangement from
the child’s mother and to her family’s
refusal to accept tainted money from him for the support of the
child.
He did not give up his gang membership notwithstanding
his exposure to gang violence and his near escape from death in that
context
and also the traumatic loss of a cousin who was close to
him. Indeed, his evidence suggests that the commission of the
offences
of which he was convicted were related to an opportunity to
exact revenge on the killers of his cousin. He acknowledges
that
an innocent victim was injured in the process.
[8]
The probation officer’s report
suggests that the complainant, whom it will be recalled was shot in
the ankle, has no grudge
against the accused and that his family is
content to accept the apology that they have been given by the
accused’s mother.
It is reported that they have no wish
for him to be incarcerated. That report has to be balanced
against the court’s
observation of the obviously traumatising
effect the shooting had on the complainant, a young boy in his
teens. While generally
maintaining a brave demeanour in the
witness box, recalling the events of the night in question brought
strong emotions to the
fore and the court had to adjourn at one stage
during his evidence in order to allow him to collect himself.
It is evident
that the complainant has been left to deal with the
physical and emotional scars of the incident for years to come.
It is
fortunate, but entirely incidental, that his physical injuries
were relatively superficial. He could just have easily been
killed or permanently incapacitated.
[9]
Although the state did not prove any
previous convictions against accused 2, it appears from the probation
officer’s report
that he has had previous brushes with the law,
including a diversion out of the criminal justice system to undertake
community
service for possession of a dangerous weapon –
apparently a knife. He has not shown an inclination to reform
and a
measure of scepticism is justified in regard to his present
protestation that he has learned his lesson. One can only hope
against hope that he will be true to his word.
[10]
I agree with the submission by the
probation officer that the only appropriate sentence for accused 2 in
all the circumstances is
one of direct imprisonment. In fixing
the term of imprisonment to be imposed, I take into account that the
accused has been
in custody awaiting trial since June 2016, and also
the cumulative effect of the sentences to be imposed separately in
respect
of the three offences of which he was convicted.
[11]
The following sentences are imposed on
accused 2 (Shalomodien Dollie):
1.
On
count 2, for the attempted murder of Luqmaan Josephs on 24 December
2015, five years’ imprisonment.
2.
On
count 4, for contravening
s 3(1)
read with s 120(1)(a) of the
Firearms Control Act 60 of 2000 (the unlawful possession of a firearm
of make and calibre unknown
on 24 December 2015), five years’
imprisonment.
3.
On
count 5, for contravening s 90 read with s 120(1)(a) of the Firearms
Control Act 60 of 2000 (the unlawful possession of at least
one round
of ammunition on 24 December 2015), two years’ imprisonment.
It is directed that the sentence on count 5 and three years of the
sentence on count 4 shall be served concurrently with that imposed
in
respect of count 2, giving an effective sentence of seven years’
imprisonment in total.
[12]
Accused 1 and 4 are subject to a prescribed
minimum sentence of 15 years’ imprisonment for murder unless
the court is able
to find the existence of substantial and compelling
circumstances justifying the imposition of a lesser sentence.
They both
have a history of past brushes with the law, but their
previous convictions were in respect of relatively minor offences.
Their only significance for current purposes is their indication that
the accused were not encouraged by past punishments to reform
and
lead clean lives. There is nothing exceptional about accused 1
and 4’s personal circumstances or the circumstances
of the
commission of the offence such as to sustain a valid basis to depart
from the prescribed sentence regime. In the conviction
judgment
I found that while premeditation had not been proven, this had been a
borderline case. There was direct intention
to kill. The
action by accused 1 in emptying an entire magazine at the deceased
and following him as he struggled to get
away was brutal in the
extreme. The deceased had offered the accused no provocation at
all and appears to have been targeted
for no other reason than his
membership of an opposing gang. The attack against an evidently
defenceless victim was a cowardly
act. As also discussed in the
conviction judgment, accused 4 made himself complicit in the assault
by identifying the victim
and reconnoitring the vicinity to ensure
that they would not be counter-attacked. The evidence of
Wasiela Josephs also suggests
in the context of the other evidence
adduced in the trial that accused 4 must have been the person who
accompanied accused 1 up
the passageway between Jordan Street and
Elbe Street and received the weapon from him, no doubt to be disposed
of to be used for
other gang purposes. The aggravating features
of the case, including the use of a weapon capable of repeatedly
firing as
many as a dozen rounds, merit the imposition of severe
punishment. For the count of murder a sentence materially in
excess
of the prescribed minimum of 15 years’ imprisonment is
indicated. Whilst the period that the accused have spent in
custody awaiting trial does not qualify as substantial and compelling
circumstances to deviate from the prescribed sentence regime,
it will
nevertheless be taken into account in determining the length of the
sentences of imprisonment to be imposed.
[13]
The following sentences are imposed on
accused 1 (Nizaam Jordaan):
1.
On
count 7, for the murder of Ashley Davids on 27 April 2016,
20 years’ imprisonment.
2.
On
count 9, for contravening s 3(1) read with s 120(1)(a) of the
Firearms Control Act 60 of 2000 (the unlawful possession of a a
firearm of make and calibre unknown on 27 April 2016), eight years’
imprisonment.
3.
On
count 10, for contravening s 90 read with s 120(1)(a) of the Firearms
Control Act 60 of 2000 (the unlawful possession of at least
12 rounds
of ammunition on 27 April 2016), four years’ imprisonment.
It is directed that the sentence imposed in respect of count 10 and
four years of the sentence imposed in respect of count 9 shall
be
served concurrently with the sentence imposed in respect of count 7,
giving an effective sentence of 24 years’ imprisonment.
[14]
The following sentence is imposed on
accused 4 (Rozario Lottering):
On count 7, for the murder of Ashley Davids on 27 April 2016,
20 years’ imprisonment.
[15]
I turn now to the matter of the enquiry in
terms of
s 342A
of the
Criminal Procedure Act 51 of 1977
into
the postponement that was necessary at the end of the evidence in the
trial of the merits because of the unavailability, due
to other
commitments, of the legal representative for accused no. 1. The
legal representative, who was instructed by Legal
Aid South Africa,
informed the court that he was unavailable for the continuation of
the case on the Monday following the completion
of evidence because
he was engaged in a part-heard matter in the Regional Court, which I
understand also to have been funded by
Legal Aid. I advised him
at the time that his other commitments did not afford good reason to
postpone the case and remanded
the case to the following Monday for
argument, as scheduled, leaving it to him to sort out the
complication caused by his being
double booked.
[16]
I thereafter, as placed on record at the
time, received representations in chambers from the Director of
Public Prosecutions, who
pointed out that the matter in the Regional
Court involved a multi-accused matter in which witnesses had been
subpoenaed from all
around the country to testify in a complex white
collar crime case. I was persuaded that the disruption that
would be caused
in the pending proceedings in the Regional Court
would be material if the matter before me in the High Court were not
postponed.
I was led to believe that the dislocation of the
matter in the Regional Court would be quite liable to lead to a
failure of justice
of grave proportions. Before deciding
whether to revisit my initial refusal of a postponement on that
account, I nevertheless
had to take into consideration the position
of the other counsel involved in the case before me. And also
to weigh the length
of any postponement that might ensue against the
constitutional right of the accused before me, who were all in
custody, to have
their trial begin and conclude without unreasonable
delay. In the latter regard, having by that stage heard all of
the evidence,
I had already formed a strong
prima
facie
view that two of them would have
to be acquitted, as in due course they were. Their continued
detention was potentially most
prejudicial if I were not to be
persuaded by the argument I was yet to hear to convict them.
[17]
Upon enquiry it became clear that some of
the other counsel engaged in the matter before me had other
commitments later in the month.
These were commitments that
they would have been able to attend to comfortably if the trial
before me ran its ordinary course,
but which could be prejudiced if
the matter were to be postponed to suit the requirements of accused
1’s legal representative.
One of those matters in which
the other counsel was involved was a long outstanding case in which
the accused had already been
in custody for a very considerable
period of time. As it was, with the co-operation of counsel,
arrangements were able to
be made for the trial to be postponed for
just one week to enable accused 1’s legal representative to
attend to the matter
in the Regional Court. This was achieved
by agreement that matters in the trial before me would be taken only
to verdict
stage in November 2017, and resume, for sentencing
purposes to the extent necessary in early 2018.
[18]
The legal representative for accused 1
sought to explain his position on the basis that information on the
criminal trial court
roll had indicated that the current matter was
anticipated to be completed on the Thursday before the matter in
which he was engaged
in the Regional Court was set down to resume.
As I made clear at the time, that was not an acceptable excuse.
Practitioners
in this Division are expected to know that the court
runs a continuous roll, with the implication that once a matter has
commenced
it is expected to run without interruption until it is
completed. That much is clearly stated in the Practice Note,
which
also stipulates that counsel’s convenience or engagement
in other matters do not ordinarily afford good reason for any
exception
from the rule. The indicative periods on the court
roll in respect of the anticipated length of criminal trials are just
that. They do not imply that if the trial has not been
completed within the indicated time an exception will be made to the
practice of the continuous roll. Indeed, in my experience the
time estimate, which reflects the prosecution’s view
of how
long a trial is likely to run, is more often than not a material
under-estimation of how long the trials actually last.
[19]
In the current matter it should have been
evident to accused 1’s legal representative long before he made
his disclosure of
unavailability that the matter would not be
completed within the estimated period. He should in the first
place not have
accepted instructions in two matters where there was
no room for latitude. But having put himself in an invidious
situation
by doing that, he should have made alternative arrangements
well ahead of time when it became evident that he would have a clash
of diary commitments.
[20]
I directed that the legal practitioner
should file an affidavit explaining his role in the disruption of the
trial in this court.
He duly did so. Having considered
the content of the affidavit, which contained an acknowledgement of
his misdirection and
an apology for the inconvenience it had caused
the court, his colleagues for the prosecution and the defence and the
accused, and
having been assured by him from the bar that he did not
submit an account for a fee in respect of his attendance at the
abortive
sitting of this court on Monday, the 13
th
of November, I decided to take no steps against him. I wish to
make it clear, however, that such indulgence will not be repeated.
[21]
A dislocation of a trial of the sort that
happened in this case not only prejudices the accused’s rights,
it also comes at
a cost. The efficient allocation of judicial
resources is undermined, and wasted costs in respect of state aided
legal representation
are occasioned. Should there be a
recurrence I shall in future be inclined to seriously consider
exercising the court’s
powers in terms of
s 342A
to make
an order directing the offending legal practitioner to forfeit part
of his or her fee and/or to pay the fees of any other
legal
practitioner that have been unnecessarily incurred in consequence of
the dislocation.
[22]
It also seems to me that the Legal Aid
Board should be encouraged to take a more proactive role in its
allocation of work.
The Board should be able to determine when
the briefs that it gives to practitioners are likely to result in
diary clashes. One
of the ways in which it could do this is by
requiring practitioners to whom work is allocated to disclose their
other commitments
and to undertake that they have satisfied
themselves that their other commitments are not likely to result in
double booking. The
fees that the Board unnecessarily incurred
in respect of the wasted appearances of
four
other Legal Aid instructed counsel in this matter highlight the
necessity that it earnestly consider taking a more proactive role
in
respect of these issues; not only as a contribution to the more
efficient administration of justice, but also to achieve an
improved
allocation of its own limited resources.
[23]
A copy of this judgment will be placed for
publication on SAFLII and I shall also direct the Chief Registrar of
the court to forward
a copy for the attention of the head of the Cape
Town office of Legal Aid South Africa.
A. G. BINNS-WARD
Judge of the High Court