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[2016] ZAECPEHC 47
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S v Allies (CC2/2016) [2016] ZAECPEHC 47 (1 September 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: CC 2/2016
In
the matter between:
THE
STATE
And
LUDONIAN
ALLIES
Accused
Coram:
Chetty J
Heard:
1 September 2016
Delivered:
1 September 2016
SENTENCE
Chetty:
[1]
I found that the evidence adduced proved that the accused and
Jansen
shared a common purpose to kill the deceased. After the accused had
been rebuffed by
Manuel
,
he took umbrage, issued threats, swore at him and left the scene.
Shots then rang out. Once the deceased exited the steel gate,
the
accused and Jansen, who were both armed, had an altercation with the
deceased whereafter both fired shots at him. Their return
to the
scene with firearms drawn compels the conclusion that they had a
score to settle. When the deceased emerged from behind
the gate,
unarmed, they both fired shots at him and departed the scene. The
assistance which the accused rendered to Jansen after
the latter had
been wounded establishes, as I remarked earlier, that the common
purpose extended to their getaway.
[2]
The convictions on counts 2 and 5 attract mandatory sentences of life
imprisonment and fifteen years respectively pursuant to
the
provisions of s 51 (1) read with Part I of Schedule 2 of the
Criminal
Law Amendment Act
[1]
,
unless the court is satisfied that there are substantial and
compelling circumstances which militate against its imposition.
[3]
The personal circumstances of the accused are that he is presently 25
years of age, unmarried but the father of three minor
children, the
two youngest residing with him and his fiancé and the eldest
with its mother. I am informed that at some stage
he was employed as
an operator. He is not a first offender. On 2 February 2009, he was
convicted of robbery and sentence to a fine
of R1200, 00 or three
years imprisonment which was however suspended for five years.
[4]
This case is yet another chapter in the on-going and escalating
conflict between rival criminal gangs within Port Elizabeth
and its
environs. The congested court rolls and daily tabloid and television
reports bear testimony to this unprecedented wave
of violence which
has reduced ordinary citizens to prisoners in their own homes. The
brazenness of the gun toting protagonists
bears testimony to their
disdain for law and order and complete disregard for the community at
large. The conflagration has reached
epidemic proportions with no end
in sight. When matters finally reach the courts, witnesses are too
petrified to testify, as exemplified
in this very case. The
complainant on count 1, I was informed, refused to testify for fear
of his life, notwithstanding being appraised
of the repercussions.
[5]
The shooting of the deceased appears to be a senseless act. Manuel’s
intimation to the accused that his drug of choice
was unavailable for
purchase triggered a violent reaction. It commenced with a veiled
threat to the owner of the house, abuse towards
Manuel
and random shooting in the street prior to returning to the scene.
Chaos then ensued and the deceased was shot and killed. In the
run up
to this trial,
Jansen
became another statistic in the war of attrition between the gangs.
He too was shot and killed.
[6]
This level of criminal conduct cannot be countenanced in any
civilised community. Courts of law must become the bulwark for
society’s protection by meeting out appropriate sentences to
offender such as the accused. The prescribed sentence on count
2 is
to my mind entirely proportionate to the crime committed. The same
can however not be said apropos the conviction on count
5. See
S
v Beyi
[2]
.
In the result the accused is sentenced as follows: -
1.
Count
2 – life imprisonment;
2.
Count
4 - 10 years imprisonment;
3.
Count
5 - 5 years imprisonment;
4.
Count
6 - 2 years imprisonment.
It
is ordered that the sentences on counts 4, 5 and 6 run concurrently
with that imposed on count 2.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State: Adv A. Canary
National
Director of Public Prosecutions,
North
End, Port Elizabeth
Tel:
(012) 842 1432
Obo
the Defence: Mr H. Bence
Instructed
by Legal Aid Centre,
Port Elizabeth
North
End, Port Elizabeth
Tel:
(041) 408 2800
[1]
Act No, 105 of 1997
[2]
2011 (2) SACR 23
(ECG)