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[2022] ZAGPJHC 406
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S v Davids and Another (SS12/2019) [2022] ZAGPJHC 406 (10 June 2022)

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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO SS12/2019
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED:
YES/NO
10/06/2022
In
the matter between :
THE
STATE
and
Davids
, JERMANE LLOYD

Accused 1
SHIMIDZU
OTTIE

Accused 2
JUDGMENT ON SENTENCE
STRYDOM J :
[1]
The two accused were each convicted on one
count of murder read with section 51(1) of the Criminal Law Amendment
Act 105 of 1997
(“the Act”); on three counts of attempted
murder of which two counts, counts 2 and 4 fell within the ambit of
the provisions
of section 51(2) of the Act as the offences involved
an assault where a wound was inflicted with a firearm; and, further,
the accused
were convicted of the unlawful possession of a firearm
and ammunition.
[2]
The court found that on 27 September 2018,
the two accused acted in concert proceeded to go and shoot and kill
Mr L [….]
M [….]1 (“M [….]1”) and Mr
S[….]1 M [….] 2 (“M [….] 2”). The
accused
were both armed with firearms and actively participated in
the shooting. As a consequence of their direct intent to shoot these

people, they foresaw that other persons might get injured or killed
through their actions. They reconciled themselves with this
possible
consequence and as a result caused the death of Ms H [….] P
[….] (“deceased”) and injured Ms
S [….]2 B
[….].
[3]
Why the two accused acted in this manner
remains unexplained by them as they persisted in their innocence.
[4]
During the trial, the court heard evidence
about the existence of two rival groupings or gangs which were active
in the Westbury,
Johannesburg, area where the shootings took place.
[5]
In evidence extensive references were made
to a previous shooting incident where a person by the name of Mr M
[....] 3 C [....]
was shot and killed by people in front of the
takeaway shop of Accused 2 on 19 July 2018. The two complainants, who
became
state witnesses, M [….]1 and M [….] 2, were
implicated in this regard. They were never tried on these
allegations.
Statements were made that the police protected them. The
state’s case was that one R [….] N [….] was
arrested
for this killing. The matter was later withdrawn against
him.
[6]
The killing of one B [....] 2 was also
mentioned. The two state witnesses were also not arrested in this
case.
[7]
On 27 September 2018, M [....] 2 came into
Stadler Street, the street where Accused 2 had his takeaway business.
Just after he crossed
the street and on his way back, a vehicle
followed him. Accused 1 and 2 alighted from the vehicle and started
to fire shots at
him and M [....] 1 who was in a passage referred to
as Tamboekiehof. Several shots were fired, one of which hit M [....]
2. Also
in the passage were the deceased, with three children. She
was shot and died on the scene. One of the children with her, Ms S
[....]
2  B [....] , was shot through her knee from the back.
[8]
Considering all the evidence in
totality, the court has no doubt that the shooting was motivated by
what previously happened when
Mr M [....] 3  C [....]  was
shot. The probabilities indicated that the shooting was either
gangster related or in retaliation
for his killing. Warrant Officer
Saunders testified that the community of Westbury prior to this
incident staged protests as rival
gangs in the community were causing
havoc in this area. Innocent bystanders were killed and children were
affected. He was appointed
with 10 other members to investigate these
shootings.
[9]
The evidence in this matter show how some
people in the Westbury/ Coronation area have no regard for the life
of other people and
that they will not hesitate to deal with others
without involving the police whom they mistrusted. This is evidenced
by how the
two accused were prepared to fire shots in a public area
without concern for the life and limb of others.
[10]
In convicting the accused, the court found
that the accused formed a direct intention to kill  M [....] 1
and  M [....]
2. When they fired the shots, acting in concert,
they must have foreseen the possibility that they could also kill or
injure innocent
bystanders. This is exactly what happened. The two
accused stood reckless as to the consequences of their actions and on
the basis
of
dolus eventualis
were convicted on the murder count.
[11]
A court sentencing accused will take into
consideration the nature and seriousness of the offences, the
personal circumstances of
the accused and the interests of society.
[12]
The court will also bear in mind what the
purposes of punishment are, to wit, deterrence, retribution,
rehabilitation and prevention.
[13]
As far as the murder count is concerned,
the prescribed minimum sentence in terms of section 51(1) of the Act
is life imprisonment
unless the court is satisfied that substantial
and compelling circumstances exist which justify the imposition of a
lesser sentence.
[14]
The court will have to consider all the
circumstances relevant to this matter to determine whether the
ultimate sentence which can
be imposed in this country, i.e. life
imprisonment, would be the appropriate sentence which should be
imposed. Section 51(1) of
the Act became applicable because the
offence was committed by the two accused who acted in the furtherance
of a common purpose
or in concert. When they followed M [....] 2 and
got out of their vehicle with firearms in their hands, they already
formed a common
intention to shoot and possibly kill him and  M
[....] 1.
[15]
The court must now decide, after a careful
consideration of all the evidence whether substantial and compelling
circumstances exist
which would justify the imposition of a lesser
sentence than the ultimate sentence.
[16]
It is established law that specified
prescribed sentences are not to be departed from lightly or for
flimsy reasons. All the factors
traditionally taken into account in
sentencing, whether or not they diminish moral guilt, will thus play
a role in the exercise
of the court’s discretion. The court has
considered the circumstances under which the shots were fired which
killed the deceased
and concluded that there are indeed circumstances
present which justify the imposition of a lesser sentence than life
imprisonment.
This does not mean that the taking of the life of the
deceased was not serious. It remains an extremely serious crime which
will
call for a heavy punishment.
[17]
The substantial and compelling
circumstances are to be found in the circumstances under which the
deceased was shot. The accused
did not form a direct intention, in
the form of
dolus directus
to shoot the deceased. She was not the target. She was shot and
killed when the accused tried to shoot and kill  M [....]
1 and
M [....] 2. Although they foresaw the possibility that innocent
bystanders could have been killed, there was no evidence
that they
wanted to cause the death of deceased. What in fact happened is that
they continued shooting with reckless disregard
to the lives of other
people. The court is also mindful that the shooting took place within
this bigger gangster violence context.
This factor can be an
aggravating circumstance depending on the reason why a victim is
shot, but at the same time the court must
consider the circumstances
under which people living in that area grew up. It is a negative
environment where gangsters thrive
and drugs are abused. To break
away from this culture must be difficult and poor homely
circumstances will make it even more difficult.
A court considering
such matter must guard against the taking of a proverbial
arm
chair approach
when considering a
sentence.
[18]
It appears that the intention to kill  M
[....] 1 and  M [....] 2 was, at least to some extent motivated,
on the probabilities,
by what has happened previously happened when
M [....] 3  C [....]  was killed. The continued
reference in evidence
to this shooting caused an inference to be
drawn that the shooting of  M [....] 2 and  M [....] 1 was
driven by some
form of retribution whereby the accused took the law
into their own hands. There was a perception that the police was not
dealing
with the  M [....] 3  C [....]  case, at least
how the accused wanted them to deal therewith.
[19]
Considering these circumstances I am of the
view that life imprisonment would be inappropriate despite the fact
that the crimes
committed by the two accused remain extremely serious
and that the public interest demand that the court should deal with
the accused,
who have shown no remorse whatsoever, appropriately.
[20]
But before considering an appropriate
sentence the court will first deal with the position of accused 1
concerning the delay to
finalise the sentencing procedure, his
previous convictions and his refusal to participate in sentencing
procedures. The accused
were convicted on 18 March 2021 and since
that date there were many delays in finalising the sentencing
procedures.
[21]
On or about 28 M [....] 1 2021 the wife of
accused 1, Ms  L [....]   D [....] , laid a complaint
address to the office
manager of the Johannesburg High Court against
me as the presiding judge. She accused this court of gross
incompetence, gross misconduct,
racial discrimination,
unconstitutional and inappropriate conduct. The court will not deal
with this unfounded attack against me
suffice to say that this caused
the legal representative of accused 1, Mr Spies, to withdraw from the
matter. This was the cause
of many delays to finalise the sentencing
of the accused. At first accused 1 indicated that he will obtain his
private representative.
This he initially did but after a while and
more postponements this legal representatives withdrew. He then
indicated that he will
require legal aid. An application was made but
as he was previously represented by legal aid his application was
refused. He then
internally appealed this decision and his appeal was
upheld. A legal representative was then appointed by legal aid.
Thereafter
further postponements were granted to obtain the record of
proceedings. Accused 1 was not prepared to admit his previous
convictions
and evidence had to be led in this regard. Accused 1 also
applied for a special entry. This application was heard. The record
will
speak for itself in this regard. At first accused 1 denied all
his previous convictions but at a later stage it was placed on record

that the only dispute relates to the murder count for which he was
sentenced to 15 years imprisonment. Evidence was led on behalf
of
accused 1 after which it was admitted, through statements from the
bar after consultations with accused 1, that he in fact was

previously convicted on a murder count. The sentence was disputed.
Accused 1 never took the witness stand to explain his convictions
and
sentences.
[22]
In light of this admission, there was no
need for this court to further pronounce on this previous convictions
of the accused save
to state that after a perusal of Exhibit O, which
was handed in by a representative of the Department of Correctional
Services,
Correctional Supervision, Mr Sello Lucas Mugakwe during
evidence, it became clear to this court that annexure A to the
warrant
in terms of which accused 1 was allegedly sentenced by the
High Court on 15 January 2004, appeared, on the face of it, not to be

an authentic document. This conclusion is underpinned by  the
absurd conditions of suspension which allegedly form part of
the
court’s sentences. In relation to the various sentences, it was
stated that the suspensive condition would be that the
accused
“
behaves well during the period of
suspension”
. In my view, no judge
or magistrate would made such an order. In relation to a sentence of
12 years imprisonment an insertion was
made by way of an amendment
suspending 4 years of the sentence “
on
condition of good behaviour by the accused during the period of
suspension”.
The judge who
purportedly sentenced the accused was the late Judge Stegmann and the
Court case number is stated to be 193/03. If
Exhibit O is then
compared with Exhibit N, which is a document handed in during the
evidence of Lt Col Raymond Peters of the Criminal
Record Centre of
the South African Police Service a different picture is sketched. The
same case number 193/03 appears on a document
that went to the
Criminal Record Centre but this document was signed by Judge
Labuschagne. A sentence of 6 years direct imprisonment
was imposed on
the accused on 26 November 2003 by the High Court for a different
crime on a different date. Although accused 1
was charged with murder
and robbery, he was found guilty by Judge Labuschagne on a count of
house breaking with the intent to steal
and theft. On this warrant
there is written “
Lasbrief i of ii
“ and on the warrant with annexure “A” “
Lbif
ii van ii
” although the Judges
differ. All together a strange state of affairs.
[23]
According to Exhibit “N”
accused was arraigned in the Regional Court and sentenced on 19
October 2006 to 15 years imprisonment
after being convicted on a
count of murder. According to Exhibit N he was never sentenced by
Justice Stegmann in the High Court
for murder as is set out annexure
“A” to Exhibit O. The effect of the alleged suspension of
his sentences as per annexure
A was that accused 1 was sentenced to
an effective term of 8 years imprisonment. This is in direct conflict
with the record of
previous convictions as per the Criminal Record
Centre.
[24]
For purposes of sentencing in this matter,
the court already found that accused 1 admitted that he previously
was convicted on a
murder count and that there was no need to make a
further finding on his previous convictions. The accused admitted his
other convictions
as per the SAP 69 although he did not sign his SAP
69 as he persisted in his dispute of the murder conviction in the
Regional Court.
The court is however, in the interest of justice, of
the view that an investigation should be conducted how it came about
that
certain convictions according to Exhibit “O” did not
appear on his SAP 69 whilst documentation that went to the office
of
Correctional Services, dealing with parole and correctional
supervision, indicate a different or further conviction. The status

and authenticity of Annexure “A” should be investigated
considering the nonsensical suspensive conditions.
[25]
This judgment on sentence, including
Exhibits “N” and “O” should be made available
by the state to the Department
of Correctional Services, to the
Criminal Record Centre of the South African Police Services for
investigation purposes. The investigating
officer Warrant Officer
Saunders, with the assistance of the Director of Public Prosecutions,
Johannesburg, are requested to oversee
the delivery of this judgment
and Exhibits to the mentioned parties.
[26]
Having found that substantial and
compelling circumstances exist for deviation of the prescribed
minimum sentence, the court will
now proceed to consider the
appropriate sentences of the two accused.
[27]
Accused 1 was asked whether he wanted to
place any evidence before court in mitigation of his sentence. He
then requested that the
matter yet again to be postponed for him to
present evidence to show how he assisted the community. No
explanation could be provided
why that evidence was not available
after the court indicated during previous postponements that the
court will proceed with the
sentencing. In my view, what transpired
since the conviction of accused on 18 March 2021  indicated a
delaying tactic to prevent
the court from sentencing accused 1. All
of this was prejudicing accused 2 and the state. These parties
opposed the granting of
a further postponement. The court then
refused a further postponement of the matter. Accused 1 then elected
not to take part in
any of the sentencing procedures. He also elected
to provide no instructions to his counsel to place before the court
from the
bar.
[28]
From the evidence before court, the court
ascertained that accused 1 was born on 2 April 1986. This would mean
that he is currently
36 years old. He has a long list of previous
convictions. He was previously convicted on a count of murder
although it was placed
in dispute exactly when and what the sentence
was. Since accused 1 was still a juvenile he started engaging in
criminal activity.
He has no less than five previous convictions for
housebreaking with intent to steal and theft. His criminal activities
started
during 1999 and his last conviction according to the SAP 69
was during 2016. The effective sentence for the last conviction was
3
years imprisonment which would mean that shortly after he came out of
prison he committed the current offences.
[29]
Having a previous conviction of murder
means that the only appropriate sentence which should be imposed
would be a long term imprisonment
as accused 1 is clearly a danger to
society. Clearly, the previous terms the accused spent in prison did
not have the effect that
he rehabilitated himself. The interests of
society demands that he should be placed in custody for a long
period.
[30]
The position of accused 2 is on a different
footing. On behalf of accused 2, a pre-sentence and background report
was admitted in
evidence by consent. He is currently 47 years old and
had a difficult upbringing with an absent father. His mother
initially cared
for him but later his aunt took over this roll when
he was 7. He moved to Westbury. His mother continued to support him
financially.
According to the report accused got involved with the
wrong group of friends and got involved in criminal activities. He
started
with criminal activities for which he was convicted. This all
changed when he managed to open a take away shop from which he could

earn a reasonable living. He was assisted by his fiancée. He
fathered 7 children and could support them. He managed to turn
his
life around but things changed when Mr  M [....] 3  C
[....]  was shot in front of his shop.
[31]
Accused 2 has previous convictions. In 1992
he was convicted of being in possession of presumably stolen
property. During 2001 he
was convicted on a count of theft and being
in possession of housebreaking and theft implements. During 2008 he
was convicted on
a count of assault and during 2010 on a count of
housebreaking with intent to steal and theft. After that for some
years accused
was not again convicted on any further counts up until
these current convictions.
[32]
The crimes on which the two accused were
convicted remains extremely serious. An innocent mother of small
children was killed for
being present in a public place. Her 4 year
old child was left without a mother and the husband of deceased was
left with the responsibility
for her upbringing. This kind of
violence perpetrated by people who have no regard for an orderly
legal system cannot be tolerated.
These people, like the accused, use
firearms rendering it unsafe for ordinary citizens to carry on with
their lives without the
fear of being killed when they go outside of
their homes. and walk in the streets.
[33]
Unfortunately the Westbury area is renowned
for this gangsterism and violence. Through sentencing this court must
send out a message
to gang members and other potential criminals that
within a constitutional state, this kind of behaviour cannot be
tolerated. Firearms
are illegally possessed and it is just a matter
of time before these firearms are used in criminal activity. Society
demands assistance
of courts to make their areas safer for them to
live in. All what a court can do is not send perpetrators of violence
to jail and
hope that potential perpetrators would soon realise that
their behaviour will not be tolerated and will be dealt with harshly
through
sentencing by courts.
[34]
Apart from the murder count, the other
counts are also very serious. An innocent child was shot through her
leg, which must have
been extremely painful. This poor child was
lucky not to have been killed herself. Mr  M [....] 2 was also
shot through his
shoulder.
[35]
The accused have shown no remorse
whatsoever and persist in their innocence. This in my mind is an
aggravating factor.
[36]
The court will consider the cumulative
effect of the sentences it intends to impose.
[37]
As far as the conviction on the possession
of unlawful firearm is concerned, the court will sentence the accused
in terms of the
Firearms Control Act 60 of 2000
and not in terms of
the minimum sentences prescribed in the
Criminal Law Amendment Act
105 of 1997
, which prescribes a minimum sentence of 15 years
imprisonment if an accused is convicted of being in possession of a
semi-automatic
firearm. The indictment made no mention of the
sections dealing with minimum sentences.
[38]
Lastly the court will take into
consideration the fact that the two accused have been in custody for
almost 3½ years. It
is quite a long time which was partly
caused by the Covid-19 pandemic but, as far as accused 1 is
concerned, he took an extra year
as referred to hereinabove.
[39]
Considering all factors the court is of the
view that the two accused should be dealt with differently. The main
reason for this
is that accused 1 has a previous conviction for
murder.
[40]
Accused 1 is sentenced as follows:
40.1
On count 1, murder read with
section 51(1)
of Act 105 of 1997 to 20 years imprisonment.
40.2
On counts, 2, 3 and 4, attempted murder to
5 years imprisonment on each count.
40.3
On count 5 to the unlawful possession of a
firearm 5 years imprisonment.
40.4
On count 6 unlawful possession of
ammunition to 2 years imprisonment.
40.5
It is ordered that the sentences on counts
2, 3, 5 and 6 are to be served concurrently with the sentence imposed
on count 1.
40.6
Three (3) years of the sentence imposed on
count 4 is to be served concurrently with the sentence imposed on
count 1.
40.7
Effectively accused 1 is sentenced to 22
years imprisonment.
[41]
Accused 2 is sentenced as follows:
41.1
On count 1 murder, read with section 51(1)
of Act 105 of 1997  to 15 years imprisonment.
41.2
On counts, 2, 3 and 4, attempted murder to
5 years imprisonment on each count.
41.3
On count 5, unlawful possession of a
firearm to 5 years imprisonment.
41.4
On count 6, unlawful possession of
ammunition to 2 years imprisonment.
41.5
It is ordered that the sentences on counts
2, 3, 5 and 6 are to be served concurrently with the sentence imposed
on count 1.
41.6
Three (3) years of the sentence imposes on
count 4 is to be served concurrently with the sentence imposed on
count 1
41.7
Effectively, accused 2 is sentenced to 17
years imprisonment.
RÉAN
STRYDOM
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Appearances
For
the State:

Adv. Z. Peck
For
Accused one:

Adv. S. N. Maluleke
Instructed
by:

Legal Aid
For
Accused two:

Adv. J. Muir
Instructed
by:

Mr. D. Greef
Date
of Hearing:

24 February 2020
Date
Judgment Reserved:

02 June 2022
Date
of Judgment on sentence:

10 June 2022