S v Ntlokwana and Another [2021] ZAECPEHC 45 (25 August 2021)

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[2021] ZAECPEHC 45
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S v Ntlokwana and Another [2021] ZAECPEHC 45 (25 August 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE
LOCAL DIVISION – PORT ELIZABETH
In the matter
between:
THE STATE
and
SIMTHEMBILE
NTLOKWANA

ACCUSED 1
SIYABULELA
MRAJI

ACCUSED 2
JUDGMENT ON
SENTENCE
MAKAULA J:
[1]
On 18 June 2021, I convicted the accused as follows:
1.1
Count 1:         Murder of
Mlungisi Peter Sample
1.2
Count 3:         Robbery with
aggravating circumstances.
1.3
Count 5:         Attempted
Murder of Dumile Maxwell Mwrebo.
1.4
Count 6:         Attempted
Murder of Nombulelo Florence
Totyi
1.5
Count 7:         Robbery with
aggravating circumstances.
1.6
Count 8:         Possession
of an unlicensed firearm.
1.7
Count 9:         Possession
of unlicensed ammunition.
[2]
The offences were perpetrated on 24 December 2019, at No. 10 Higa
Street, Zwide, Port
Elizabeth.  The deceased had a workshop,
which he operated from the premises of fitting car Alarms and Radio
styled Peter Sounds
and Alarms.  The facts indicate that
Lubabalo Fumananenzi (Lubabalo) lost a car sound system.  His
investigations led to
Kuhle Nobebe (Kuhle).  Kuhle led Lubabalo
to the deceased.  The deceased denied that he bought a stolen
sound system from
Kuhle.  Lubabalo and Kuhle left the deceased
workshop and returned with the two accused.  For no rhyme or
reason, acting
in concert, the accused shot and killed the deceased.
They stole his Plasma television set and left the premises.
Trying
to facilitate their escape from the scene, they stopped the
motor vehicle of Mr
Mwrebo
who at the time was in company of Ms Totyi.  One of them fired
gunshots and injured both Mr Mwrebo and Ms Totyi before
they drove
off in his motor vehicle.
[3]
Lubabalo is deceased and his statement, which was admitted, in terms
of the hearsay
rule is not of any assistance as to how the accused
came to shoot at the deceased.  Kuhle lied to this court and I
declared
him a hostile witness.  He denied the obvious, that the
accused were the ones who killed the deceased.  He too, could
not
tell the court as to how the accused came to be involved in the
dispute between Lubabalo and the deceased to an extent of them
deciding
to brutally kill the deceased.  The accused themselves
elected to lie.  They denied their involvement in killing the
deceased.
Similarly therefore, they did not assist me in this
regard.  I do not know how and why they got involved in the
killing of the
deceased.  I have not benefit of knowing the
motive for killing of the deceased.
[4]
All that is clear is that the deceased was merciless killed.
One of the accused
placed a gun against his head and shot him at
close range.  They even shot at him while he was lying on the
ground.  It
was broad daylight and as alluded to for no apparent
reason.  The chief post-mortem findings by Dr Greg Ochabshi
read:
·
2 gunshot wounds
perforating through the head;
·
Disruption of the
brain;
·
Projectile found at the
end of the track; and he determined the cause of death to be “Gunshot
head”.
[5]
Mr Mwrebo sustained an injury to his finger and he was treated at the
scene.  Ms
Totyi was taken to the hospital for treatment.
The medical report (J88) reveals that she sustained an injury to the
right calf
and left side of the foot.
[6]
Accused 1 was born on 18 October 1991 and that makes him 30 years
old.  He is not
married and has one child Ayabonga Mjoyi who
turned 2 years on 17 January 2021.  The child stays with his
mother.  He has
two siblings 12 and 19 years respectively.
His mother is still alive and is 47 years old.  Accused 1 has
two previous
convictions of theft dating from the year 2011 and
2013.  He was sentenced to 5 years’ imprisonment for attempted
murder which
was committed on 18 October 2014.  He worked as a
taxi driver earning R1000.00 per week before his arrest.
[7]
Accused 2 was born on 8 June 1994.  He is 27 years old.
His parents are still
married.  He has one sibling, a sister who
is 21 years old.  He dropped out of school in Grade 11 and is
also a taxi driver
earning R1300.00 per week.
[8]
Mr Thysse for both accused, pleaded for a sentence which is borne out
by a measure of
mercy.  He further urged the court to find
substantial and compelling circumstances in the personal
circumstances of the accused
and recommended an effective term of
imprisonment other than life imprisonment.  He submitted that
the accused are remorseful
of what they did.
[9]
Mr Makasana, for the State, submitted that the accused may be
regretting their actions
but they did not show any remorse throughout
the trial.  He submitted that they have not established
substantial and compelling
factors to necessitate departure from the
minimum sentences prescribed.
[10]
The truth is that the accused did not show any signs of remorse.
The accused throughout the trial
denied their involvement in the
commission of these offences.  The offences were committed in a
callous and gruesome manner.
The offences were committed during
broad day light.  People were still moving around doing their
own businesses when the accused
attacked the deceased, Mr Mwrebo and
Ms Totyi hence large crowd immediately gathered at the deceased home
after the incident.
[11]
I find no substantial and compelling circumstances in this matter.
The accused ages cannot be regarded
as constituting such.  They
brazenly killed the deceased for no reason at all.  The property
that was allegedly stolen
did not belong to them.  They did not
act as youth would when they killed the deceased and when they shot
and robbed Mr Mwrebo’s
motor vehicle.  Murder is prevalent.
No human deserves to die the way the deceased died.  Having
regard to their
personal circumstances, the interests of society and
the crime itself.  I find the following sentences to be
appropriate.
[12]
Consequently, I sentence the accused as follows:
Count 1:
Both accused are sentenced to undergo life imprisonment each.
Count 3:
Both accused are sentenced to undergo fifteen (15) years’
imprisonment
each.
Count 5:
Both accused are sentenced to undergo ten (10) years’ imprisonment
each.
Count 6:
Both accused are sentenced to undergo ten (10) years’ imprisonment
each.
Count 7:
Both accused are sentenced to undergo fifteen (15) years’
imprisonment
each.
Count 8:
Both accused are sentenced to undergo five (5) years’ imprisonment
each.
Count 9:
Both accused are sentenced to undergo five (5) years’ imprisonment
each.
Effectively the
accused are sentenced to undergo life imprisonment.
M MAKAULA
Judge of the High
Court
Counsel for the
State:
Adv V Makasana
National
Director of Public Prosecution
Port
Elizabeth
Counsel for Accused
1 and 2:
Adv J Thysse
Port
Elizabeth
Instructed
by:
NE Mbewana Attorneys
Mr
K Nobuzana and Mr N Vusani
Port
Elizabeth
Date of judgment on
sentence:
25 August
2021