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[2016] ZAECPEHC 35
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S v Gayiya and Others (CC2/2012) [2016] ZAECPEHC 35 (23 June 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DISVISION, PORT ELIZABETH)
Case No: CC2/2012
In
the matter
between:
THE
STATE
And
ANELE
GAYIYA
ACCUSED NO. 1
OLWETHU
NGOXOZA
ACCUSED NO. 2
ZOLA
EROSI
ACCUSED NO. 3
LUVUYO
GAVIN PRINCE
ACCUSED NO. 4
LUNTU
LEONARD MAKASI
ACCUSED NO. 5
Coram:
Chetty J
Heard
On:
23 June 2016
Decided
On:
23 June 2016
Chetty
J:
[1]
The five (5) accused persons were arraigned for trial before Sandi J
on multiple charges, to wit –
COUNT
1:
MURDER
COUNTS
2, 3 AND 4
:
ROBBERY WITH AGRAVATING CIRCUMSTANCES (as envisaged in Section 1(1)
of Act 51 of 1977)
COUNTS
5 AND 6
:
ATTEMPTED MURDER
COUNT
7
:
UNLAWFUL POSSESSION OF A FIREARM (against accused 4 and 5 only) (in
contravention Section
3 read with Sections 1, 103, 117, 120(1)(a),
Section 121 read with Schedule 4 of Act 60 of 2000 and further read
with Section 250
of Act 51 of 1977)
COUNT
8
:
UNLAWFUL POSSESSION OF AMMUNITION (only against accused no. 2) (in
contravention of Section
90 read with Sections 103, 117, 120(1)(a),
Section 121 read with Schedule 4 and Section 151 of Act 60 of 2000
and further read
with Section 250 of Act 51 of 1977)
[2]
The trial commenced on 21 May 2012 and the adduction of evidence was
completed on 23 October 2014. The matter stood down for
argument on 1
December 2014 but was adjourned to the following day whereafter the
matter was postponed for judgment to 12 December
2014. Judgment
was however only delivered on 12 August 2015 at the conclusion of
which the trial was postponed for the purposes
of obtaining
pre-sentence reports in respect of the accused. Those reports were
only furnished during the first week of February
2016. On 16 February
2016, the matter was once more postponed to 22 – 24 March 2016
for sentence but had to be postponed
due to the ill health of Sandi
J. The interminable delays which beset the finalisation of these
proceedings were occasioned by
a multiplicity of factors – the
ill health of the investigating officer, the incapacity and
withdrawal of accused no. 2’s
previous legal representative and
finally the ill health of Sandi J. Finality must however be achieved.
Given the current unavailability
of Sandi J, I now proceed to
conclude the sentencing stage of the proceedings pursuant to the
provisions of s 275 of the
Criminal
Procedure Act
[1]
(the
Act).
[3]
The trial court convicted: –
(i)
accused no.’s 2 and 4 of murder on count 1;
(ii)
accused no.’s 1, 2, 3, 4 and 5
of robbery with aggravating circumstances on counts 2,
3 and 4;
(iii)
accused no.’s 1, 3 and 5 of attempted murder on counts 5 and 6;
(iv)
accused no.’s 4 and 5 of the unlawful possession of a firearm
on count 7; and
(v)
accused no. 2 of the unlawful
possession of ammunition (count 8).
[4]
The charges against the accused all relate to events which unfolded
at an ice-cream distribution and sales centre, ESG, in Port
Elizabeth. Given the effluxion of time between the adduction of
evidence, the handing down of judgment and these sentencing
proceedings,
it is necessary to revisit the factual matrix, which,
extrapolated from the evidence adduced and the trial court’s
judgment,
may be narrated as follows.
[5]
ESG was a family owned business,
Darren
Stanley
(the deceased) being its chief operating officer. The deceased’s
father, Mr
Eric
Gordon Stanley (Eric)
(the complainant on count 5), and his late wife, Mrs
Anne
Stanley
(
Anne
)
were all involved in the business, he on the logistics side and Anne,
on the administrative. I shall collectively refer to them
as the
Stanleys,
or individually as
Eric
and
Anne,
or the couple or the parents. On the morning in question i.e. 17 July
2010 the
Stanleys
opened the business as usual to await the arrival of their workforce
i.e. the five (5) accused. The accused were all provided with
what
may conveniently be termed ice-cream carts whence they sold their
wares at various locales on the beachfront. According to
Eric
the accused worked on a commission basis and had to account for the
sales at the end of the day on their return to the business
premises
whence their remuneration would be calculated.
[6]
It appears from
Eric’s
evidence that during the course of the morning and at the beachfront
an altercation took place between the deceased and the accused
and,
although he, i.e.
Eric
,
could not elaborate on the full extent of the disagreement, the
primary cause would appear to have been the intransigence by the
accused to pedal their wares at different locations along the
beachfront. The deceased and
Eric
left and returned to the business. It is not in issue that the
appointed time for the accused’s return to the premises i.e.
5
p.m. passed, without any sign of them.
Eric
recounted that the deceased telephoned one of them and the response
received was that they were still busy selling ice-cream. Eventually,
the accused arrived and a confrontation ensued in the office between
Anne
and the accused. It appears to be common cause that
Anne
refused to pay the accused notwithstanding the fact that one (1) of
them, whom
Eric
referred to as
Olo
,
had sold all his provisions.
[7]
The trial court found that the non-payment of their dues precipitated
the attack upon the deceased and his parents. The trial
judge found
as follows: -
“
The
mention of the fact that they would not be paid caused the accused
persons to be angry. Some of the accused persons mentioned
that they
needed the money to use in their households, some of it to use to pay
their taxi fares back to the township where they
lived. The end
result of all this was that Darren was murdered. Robbery of the
property as set out in the indictment was committed.
Amongst other
things, the following property was robbed: cell phones, a pistol,
ammunition, jewellery and a vehicle belonging to
the Stanleys. In
addition Eric and Anne Stanley were assaulted and were put in the
deep freezers. They were left in those deep
freezers screaming for
help.”
[8]
The trial court convicted accused no.’s 2 and 4 of murdering
the deceased on application of the doctrine of common purpose.
It is
evident from the medical evidence that the deceased succumbed in
consequence of blunt force being administered to his head.
Dr
Mgogo
,
who performed the post-mortem examination adverted to a plethora of
injuries to the deceased’s body and opined that a tremendous
amount of force must have been used to cause same. It is furthermore
not in dispute that when Sergeant
Bezuidenhout
entered the premises later that evening, the deceased was the person
whom he found in the third closed fridge.
[9]
It is furthermore not in issue that
Eric
and
Anne
,
were found interred in and extricated from two (2) functional
freezers. Both of them were cold, shivering and stained with blood.
The medical evidence adduced attests to the fact that they had been
savagely assaulted, and had to be attended to at the casualty
department of the Livingstone hospital that very evening. The
clinical findings pertaining to
Anne
were noted on the J88 as follows –
patient
trembling – ragged 25mm long laceration frontal scalp –
bruising and swelling left back- abrasion left elbow
– 20mm
long laceration left thigh.
Eric’s
clinical
findings were noted on the J88 as follows –
patient
sitting in a wheelchair and trembling – abrasion and 10mm long
laceration on right side of face – abrasion forehead
– no
fractures on forehead.
[10]
The circumstances in which the
Stanleys
were assaulted was recounted by
Eric
,
Anne
,
having passed away prior to the commencement of the trial. In his
testimony,
Eric
adverted to an altercation between
Anne
and three (3) of the accused inside her office. He described how she
was hit on the head with the lid of an ice-cream box and when
he went
to her aid, how he too was attacked outside the office and beaten on
his head with such severity that he was rendered virtually
unconscious. He further stated that all that he could recall was
being carried towards the freezers and trampled upon before being
unceremoniously dumped into the freezer by a person whom he referred
to as
Gavin
.
It is not in issue that accused no. 5’s second name is
Gavin
.
[11]
The accused’s version of what transpired in the office differs
substantially. Although all three (3) of them i.e. accused
no.’s
1, 3 and 5 confirmed being in the office and alluded to the argument
that ensued between them and
Anne
,
all denied having assaulted the
Stanley
couple. Accused no. 1 testified that he left the office when it
became apparent to him that he would not get his money and took
Anne’s
cell phone as a form of security which he would hand back the
following day when he received his commission. Accused no. 3 on the
other hand described a violent confrontation between them and
Eric
when the latter produced a firearm and took aim to shoot at them. To
dispossess him, accused no. 5 lashed out and kicked the firearm
away.
Accused no. 5’s version corresponded to that of accused no. 3
but he too decried any knowledge of having witnessed
or participating
in the assault on the
Stanleys
.
The trial court however rejected their versions and found that they
had in fact robbed the
Stanleys
of the items specified in the annexure to the indictments and had
attempted to murder them.
[12]
Accused no. 1 was nineteen (19) years of age at the time of the
commission of these offences. His personal circumstances are
fully
set out in the pre-sentence report. He commenced employment with the
Stanleys
earlier that very year and has been in custody since his arrest in
2010. He dropped out of school during grade 10, was employed
as a
general worker at the harbour between 2008/2009. According to the
compiler of the report the accused has expressed no remorse,
steadfastly maintaining his innocence.
[13]
Accused no. 2 was eighteen (18) years old at the time. His personal
circumstances were likewise adverted to in the pre-sentence
report.
He too dropped out of school during grade 10 and commenced work with
the
Stanleys
in 2010. Whilst he admits being in possession of
ammunition, he denies all involvement in the offences of which he has
been convicted.
[14]
Accused no. 3 was aged twenty (20) at the time. His socio-economic
circumstances are thoroughly documented in the pre-sentence
report.
He left school whilst in grade 12 and commenced employment with the
Stanleys
in 2010. Although he denies any involvement in the robbery he admits
having restrained
Eric
to prevent him from reaching his firearm. As adumbrated hereinbefore,
his exculpatory version was rejected by the trial court.
[15]
Accused no. 4 nineteen (19) years old at the time these offences were
committed. His social and familial circumstances are
set out in his
pre-sentence report. He is the product of an unstable marital
relationship between his parents. Although he is unmarried,
he has an
eight (8) year old son who resides with his maternal grandmother. The
accused left school whilst in grade 10 and enrolled
at Qhayiya
Further Education and Training College, first in Port Elizabeth and
thereafter in Cape Town. On the advice of family
members he returned
to Port Elizabeth without completing his course. A brief six (6) week
working career was his only employment
prior to commencing work with
the
Stanleys
.
According to the report he acknowledges his guilt on the robbery and
possession of firearm charges.
[16]
Accused no. 5 was aged twenty (20) at the time. He too is the product
of a dysfunctional family and was cared for primarily
by his
grandparents. Although he is unmarried, he has a five (5) year old
daughter. He completed grade 10 and left school whilst
in grade 11.
Thereafter he started working at Eyethu Fisheries but left and
commenced employment with the
Stanleys
in June 2010. He denies complicity in the offences of which he has
been convicted save that he took some money from the office.
[17]
The convictions on counts 1, 2, 3, 4 and 7 trigger the operation of
the minimum sentence provisions in section 51 of the
Criminal
Law Amendment Act
[2]
.
As adumbrated hereinbefore, the trial judge convicted accused no.’s
2 and 4 of murder on application of the common purpose
doctrine. The
conviction as aforesaid attracts a mandatory sentence of imprisonment
for life absent a finding that substantial
and compelling
circumstances exist which militate against the imposition of such a
sentence. In similar vein, the convictions of
all the accused on the
three (3) counts of robbery with aggravating circumstances i.e.
counts 2, 3 and 4 and the conviction of
accused no.’s 4 and 5
on the unlawful possession of the 6.35mm Finat model Inox
semi-automatic pistol obligates the court
to impose a sentence of
fifteen (15) years imprisonment on each count unless the accused
satisfy the court that there are substantial
and compelling
circumstances which justify the imposition of a lesser sentence.
[18]
Our case law abounds with learned discourses on what constitutes
substantial and compelling circumstances. The debate thereanent
was
authoritatively settled in
S
v Malgas
[3]
where Marais J.A., concluded his precedent setting analysis of the
question as follows: -
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
In
so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the bench mark which
the Legislature
has provided.”
[19]
As adverted to earlier in this judgment, the accused were all aged
between eighteen (18) and twenty (20) at the time of the
commission
of these offences. They are all products of unstable and
dysfunctional home environments and drop-outs from school mainly
due
to financial constraints. The evidence adduced establishes that the
offences were not premeditated. They had been in the employ
of the
Stanley
family for a relatively short period of time but there does not
appear to have been any hostility between them and their employers.
Eric
proffered the evidence that he was referred to by the accused as
“
Daddy
”
.
What emerges clearly from the evidence however is that the catalyst
for the assault upon the
Stanleys
was not the initial verbal abuse by the deceased of them but the
refusal by
Anne
to pay the accused the money they were in truth entitled to. It is
not in issue that they had worked the entire day. Although the
accused’s violent conduct towards the
Stanleys
is inexcusable and is to be deprecated, it arose directly in
consequence of the
Stanleys’
own unconscionable behaviour. The accused had pedalled their bicycles
selling ice-cream the entire day and their late return to
the
business premises was not attributable to any fault on their part.
The breakdown of one of the bicycles precipitated their
late arrival
and yet according to
Eric
,
this infuriated the deceased and ultimately led to the conflagration.
[20]
Anne’s
refusal to pay the accused their dues inflamed the situation and, no
doubt, ultimately led to the confrontation between them and
the
Stanleys
.
This factor, together with the relative immaturity of the accused,
is, to my mind, sufficiently mitigating to render the imposition
of
the ordained sentences unjust. However, the brutality of the attack
upon the
Stanleys
,
imperatively calls for a custodial sentence. It is apparent from the
report by the probation officer, Ms
Pieterse
,
that the assault had a traumatic effect on the
Stanleys
and the impact which it had on the surviving
Stanleys
must be accorded due weight. By the same token the accused have been
in custody awaiting trial for approximately six (6) years
and this
factor together with their clean record must likewise redound to
their benefit.
[21]
In the result the accused are sentenced as follows: -
Accused
No.’s 1, 3 and 5:
Counts
2, 3 and 4
are
taken together for the purposes of sentence and accused no.’s
1, 3 and 5 are each sentenced to ten (10) years imprisonment;
On
Count 5
– accused no.’s 1, 3 and 5 are sentenced
to twelve (12) years imprisonment;
On
Count 6
– accused no.’s 1, 3 and 5 are sentenced
to twelve (12) years imprisonment.
On
Count 7
accused no. 5 is sentenced to five (5) years
imprisonment.
It
is however ordered that the sentences imposed in respect of counts 2,
3, 4, 6 and 7 run concurrently with that imposed on Count
5.
Accused No.’s
2 and 4:
On
Count 1
– accused 2 and 4 are sentenced to fifteen (15)
years imprisonment;
Counts
2, 3 and 4
are
taken together for the purpose of sentence and accused no.’s 2
and 4 are each sentenced to ten (10) years imprisonment;
On
Count 7
– accused no. 4 is sentenced to five (5) years
imprisonment;
On
Count 8
– accused no. 2 is sentenced to one (1) year
imprisonment.
It
is however ordered that the sentences imposed on:
(i)
Accused
no. 2 on counts 2, 3, 4, and 8 run concurrently with that imposed in
respect of count 1;
(ii)
Accused
no 4 on counts 2, 3, 4 and 7 run concurrently with that imposed on
count 1.
___________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv I. Loots
NDPP,
North End, Port Elizabeth
Obo
Accused No. 1:
Mr D Erasmus
Obo
Accused No. 2:
Mr J Riley
Obo
Accused No. 3:
Mr K. Saziwa
Obo
Accused No. 4:
Adv G. Cilliers
Obo
Accused No. 5:
Adv R. Crompton
Instructed
by
Legal Aid Centre, Port Elizabeth
[1]
Act No, 51 of 1977
[2]
Act No, 105 of 1997
[3]
2001 (1) SACR 469
(SCA)