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[2016] ZAECPEHC 36
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S v Nombamba and Others (CC34/2014) [2016] ZAECPEHC 36 (23 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: CC 34/2014
In
the matter between:
THE
STATE
And
SANDILE
KENNETH NOMBAMBA
TOBELA
BAILEY
M.
J.
Accused
Coram:
Chetty J
Heard:
23 June 2016
Delivered:
23 June 2016
JUDGMENT
Chetty
J:
[1]
These offences had its genesis in a gathering during the late
afternoon of 18 June 2012 where the three (3) accused, together
with
their erstwhile co-accused
Xhanti
Msizi
and one (1)
Athenkosi
at
Msizi’s
home in Walmer Township, Port Elizabeth where, as they were
accustomed to, spent the afternoon imbibing alcohol and smoking
mandrax.
Later that evening the offences particularised in the
indictment were committed and at the ensuing trial, accused no. 1 was
convicted
on counts 1 to 7; accused no. 2 on counts 1, 3, 4 and 5 and
accused no. 3 on counts 1, 4 and 5. The circumstances under which the
offences were committed are adverted to in the main judgment and bear
no repetition, save to emphasize that the accused acted with
deadly
intent and a callous disregard for the rights and bodily integrity of
their victims.
[2]
Although the accused were unaware that the content of the telephonic
conversation between
Msizi
and his caller pertained to the hijacking of a Toyota Corolla, the
evidence established that en route to Govan Mbeki,
Msizi
appraised accused no. 1 of their avowed purpose. When they reached
their intended destination accused no. 1 played the leading
role. It
was only his ineptitude in handling the firearm that caused
Msizi
to take possession of it and shoot the deceased. Although there is no
evidence that either of accused no.’s 2 and 3 were
aware of the
purpose of the visit to Govan Mbeki, accused no. 2 participated in
the hijacking of the vehicle by holding onto Ms
Sikiti
whilst the deceased was forcibly removed therefrom and thereafter
shot.
[3]
The subsequent events at the service stations, so vividly depicted in
the CCTV footage (exhibit P), demonstrate that the robberies
were not
an arbitrary affair but executed with measured precision. Both
incidents were goal directed, each of the accused being
assigned a
particular role to play to guarantee the success of the operations.
[4]
Accused no. 1 is the youngest of the three (3) accused persons but
played a leading role in the events which unfolded. The photographs
in exhibit U are ominous and demonstrate quite unequivocally the
accused’s infatuation with firearms. His personal circumstances
are thoroughly detailed in the pre-sentence report and bear no
repetition. I accept that he is the product of a broken home but
his
step-grandmother appears to have created a stable environment in
which he found for nothing. His own association with criminal
elements and drug addicts has led to the malaise in which he finds
himself.
[5]
Accused no. 2’s personal circumstances are fully documented in
the pre-sentence report. Although he was virtually abandoned
by his
mother on her relocation to Johannesburg, his maternal aunt fulfilled
the void left by her departure. The accused’s
father
nonetheless continued to fulfil his fatherly duties but the accused
appears to have learnt very little. He preferred the
company of
social misfits as evidenced by his frequent visits to
Msizi’s
residence to indulge in drugs and alcohol.
[6]
Accused no. 3 was sixteen (16) years old at the time of the
commission of these offences. His familial situation is not unlike
the others. He is the product of an acrimonious relationship between
his mother and father and according to the report this appears
to
have instilled a sense of anger in the accused and contributed to his
short temperedness and ultimately his conviction on the
assault
charge. The report however emphasizes that the accused appears to
have realised the error of his ways and his association
with a
musical group has had a beneficial influence on his life. It is
evident from the report that the accused is deeply remorseful
for his
conduct and has vowed to steer clear of criminal influences.
[7]
The convictions on counts 2, 3, 4, 5 and 6, to wit murder, robbery
with aggravating circumstances and the unlawful possession
of a
firearm trigger the operation of the minimum sentence provisions
encapsulated in s 51 of the
Criminal
Law Amendment Act
(the
“Act”)
[1]
. The Act
is however not of application as far as accused no.’s 1 and 3
is concerned. Section 51(6) of the Act specifically
provides that:
“
(6)
This section does not apply in respect of an accused person who was
under the age of 18 years at the time of the commission
of an offence
contemplated in subsection (1) or (2).”
The
situation is however altogether different as far as accused no. 2 is
concerned. He was nineteen (19) years old at the time.
Robbery with
aggravating circumstances or involving the taking of a motor vehicle
attracts a mandatory sentence of not less than
15 years imprisonment
absent a finding that there are substantial and compelling
circumstances which justify the imposition of
a lesser sentence. On
the proven facts, the mandatory sentence regime is of direct
application to accused no. 2.
[8]
It has been submitted on his behalf that there are indeed substantial
and compelling circumstances which render the imposition
of the
ordained sentence unjust. Mr
Crompton
submitted that the accused’s personal circumstances, his age,
the lesser degree of participation and the villainous influence
of
Msizi
over him constitute the requisite circumstances. Although accused no.
2 projects an air or bravado, his immaturity is readily apparent
and
hence his susceptibility to negative influences real. I accept that
the factors enumerated by Mr
Crompton
indeed render the mandatory sentence unjust.
[9]
It is evident however that the only appropriate sentence in the case
of each of the accused is a custodial one, and the question
which
arises is confined to the length of such imprisonment. As adumbrated
hereinbefore, the robberies were not random acts. Each
involved a
measure of planning with particular roles being assigned to each of
the participants. Accused no. 3’s role was
no less significant
than that of his co-accused. A look-out’s function is as
equally morally reprehensible.
[10]
In the result the accused are sentenced as follows:
Accused
no. 1 - On Count 1 – 5 years
imprisonment;
On
Count 2 – 15 years imprisonment;
On
Count 3 – 10 years imprisonment;
On
Count 4 – 10 years imprisonment;
On
Count 5 – 10 years imprisonment;
On
Count 6 – 5 years imprisonment;
On
Count 7 - 2 years imprisonment;
It
is however ordered that the sentences imposed on counts 1, 3, 4, 5, 6
and 7 run concurrently with the sentence imposed on count
2.
The
effective sentence is one of fifteen (15) years imprisonment.
Accused no. 2
- On Count 1 – 5 years imprisonment;
On
Count 3 – 12 years imprisonment;
On
Count 4 – 12 years imprisonment;
On
Count 5 – 12 years imprisonment;
It
is however ordered that the sentences on counts 1, 3 and 4 run
concurrently with that imposed on count 5.
The
effective sentence is one of ten (12) years imprisonment.
Accused no. 3
- On Count 1 – 5 years imprisonment;
On
Count 4 – 10 years imprisonment;
On
Count 5 – 10 years imprisonment;
It
is ordered that the sentences imposed on counts 1 and 4 run
concurrently with that imposed on count 5. The effective sentence
is
one of ten (10) years imprisonment.
______________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
[1]
Act No 105 of 1997