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[2022] ZAECQBHC 28
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S v Gcuwa and Others (CC15/2019) [2022] ZAECQBHC 28 (7 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
Case
no.: CC15/2019
In
the matter between:
THE
STATE
And
SONWABO
GCUWA
Accused 1
LUSANDA
LUDZIYA
Accused 2
NONTUTHUZELO
MAJOLA
Accused 3
SIMTHEMBILE
QHONGOSHANI
Accused 4
JUDGMENT
ON SENTENCE
GQAMANA J
[1]
Accused 1, 2 and 4 have been found guilty of serious offences,
namely, robbery with
aggravating circumstances, 2 counts of attempted
murder, murder, unlawful possession of firearms and unlawful
possession of ammunition,
accused 4 was not convicted of the last two
counts. Accused 3 was only found guilty of robbery with aggravating
circumstances.
Briefly the robbery occurred on 2 May 2018, at Sasol
Garage, Cape Road, here in Gqeberha. Three armed men (i.e. accused 1
and 2
and an unknown man) stormed in at the shop at Sasol Garage and
robbed money which was in the carnisters that were carried by Mr
Saba
, an employee of Fidelity Guard Services and an
ex-colleague of accused 3. In the course of such robbery,
Saba
was disarmed and his firearm was handed over to accused 1 by one of
the robbers. In addition to the three men, there were also
other two
robbers that were strategically deployed outside the shop as it was
evident from the video footage. While the whole robbery
was in
action, accused 3 was inside the Fidelity Guard van which was parked
next to the shop entrance. The robbery was well executed
mainly
because of the information disclosed by accused 3. Due to quick
response of the police, especially Captain
Dirk
, the accused’s
actions were thwarted. Chase ensued between the getaway taxi and the
police leading up to Chase Drive and
Ditchling Street and the arrest
of accused 1and the death of the deceased on count 4.
[2]
It is now time for the court to consider and impose appropriate
sentences. Sentencing
involves a very high degree of responsibility
which must be carried out with calmness and composure. In striving to
impose a sentence
that is fair to the accused, I must keep in mind
the well-known triad as set out in
S v Zinn
1969 (2) SA 537
(A) at
540G-H
that, the punishment should fit the crime, the offender
and the interests of society. Further there should be a measure of
mercy.
I must also consider the main objectives of punishment which
are deterrence, reformation or rehabilitation and retribution.
Sentencing
is not an easy judicial task to perform.
[3]
It is appropriate to refer to the guidelines on sentencing as was
aptly articulated
by
Du
Toit AJ in
S v Thonga,
1993 (1)
SACR 365
(V) at 370 (c)-(f)
, that:
“
During
the sentencing phase the trial court is then called upon to exercise
its penal discretion judicially and only after careful
and
objectively balanced consideration of all relevant material…
In my view the punishment must firstly be reasonable, i.e.
it should
reflect the degree of moral blameworthiness attaching to the
offender, as well as the degree of reprehensibleness or
seriousness
of the offence. Punishment therefore should ideally be in keeping
with the particular offence and the specific offender.
It is
necessary, secondly, for the punishment to clearly reflect the
balanced process of careful and objective consideration of
all the
relevant facts, mitigating and aggravating. The sentence should,
thirdly, reflect consistency, as far as humanly possible,
with
previous sentences imposed on similar offenders committing similar
offences, lest society should believe that justice was
not seen to be
done. Lastly, the penal discretion is to be exercised afresh in each
case, taking the facts of each case and the
personality of each
offender into account.
”
[4]
In
casu, I should be mindful and alive to the fact that some
of the offences that the accused are convicted of, attract the
minimum
sentences envisaged in s 51 (1) and (2)(a) of the Criminal
Law Amendment Act, 105 of 1997, as amended (“Act 105 of 1997”).
[5]
It was emphasised in
S v Rabie
1975 (4) SA 855
(A) at 866
, by
Corbett
JA, (then) that:
“
A
judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for him
to achieve
that delicate balance between the crime, the criminal and the
interests of society which his task and the objects of
punishment
demand of him. Nor should he strive after severity; nor, on the other
hand, surrender to misplaced pity. While not flinching
from firmness,
where firmness is called for, he should approach his task with a
humane and compassionate understanding of human
frailties and the
pressures of society which contribute to criminality. It is in the
context of this attitude of mind that I see
mercy as an element in
the determination of the appropriate punishment in the light of all
the circumstances of the particular
case
.”
[6]
For the reasons set out in paragraph 4 above, my point of departure
should be that,
the statutory prescribed minimum sentences of life
and 15 years’ imprisonment in terms of the provisions of
section 51(1)
and (2)(a) of the Act 105 of 1997 should be imposed
unless, I find that there are substantial and compelling
circumstances justifying
a deviation.
[7]
In the well celebrated case of
S v Malgas
2001 (1) SACR 469
(SCA
)
the approach that should be followed under the circumstances is
eloquently set out therein as:
“
.......[the
court] was required to approach that question conscious of the fact
that the legislature has ordained life imprisonment
or the particular
prescribed period of imprisonment as the sentence which
should ordinarily
be
imposed for the commission of the listed crimes in the specified
circumstances. In short, the Legislature aimed at ensuring a
severe,
standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be
seen to be,
truly convincing reasons for a different response. When considering
sentence the emphasis was to be shifted to the
objective gravity of
the type of crime and the public's need for effective sanctions
against it
.
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions, might have justified
differentiating between them. But for the rest I can see no
warrant
for deducing that the legislature intended a court to exclude from
consideration, mitigating
as
it were, any or all of the many factors traditionally and rightly
taken into account by courts when sentencing offenders
.”
[8]
In
S v Matyityi
2011 (1) SACR 40
(SCA) at para [23]
,
Ponnan
JA, emphasised that, the courts are obliged to impose the prescribed
sentences unless there are truly convincing reasons for departing
from them. The courts are not free to subvert the will of the
Legislature by resort to vague and ill-defined concepts such as
‘
relative youthfulness
’ or other equally vague and
ill-founded hypotheses that appear to fit the particular sentencing
officer’s personal
notion of fairness. Against the above legal
principles, I now consider the personal circumstances each of the
accused persons before
me.
[9]
In so doing I shall consider first accused 1’s personal
circumstances. He was
born on 22 September 1982, and therefore he was
36 years of age at the time of the commission of the offence. His
highest standard
of education is grade 1 which he never even
completed. He left school and secured an employment in Cape Town. He
is a divorcee
with two children, ages 16 years and two months at the
time of his arrest. One of his children resides in Bloemfontein with
her
maternal relative and the other child is looked after by the
accused’s mother. He has been in custody for four years
awaiting
trial. He has no previous convictions and such he is a first
offender. He co-operated with the police investigation although he
maintains his innocence and denies any involvement in the robbery.
[10]
I now turn on to deal with accused 2. He was 33 years of age at the
time. He is the eldest child
in a family of 6 children. He was born
in Mqanduli and was raised by both his parents in a stable family
environment. He studied
his high school levels up to grade 11 here in
Gqeberha. He left school because he suffered from epileptic seizures.
From the pre-sentence
report, his transit to Gqeberha was an attempt
to avert and remove him from his criminal hobby which manifested at a
young age
while still residing in Mqanduli. Unfortunately his
parents’ conscious strategy did not achieve the desired
purpose, in that,
on 26 November 2008, accused 2 committed a
housebreaking with intent to steal and theft and was convicted and
sentenced of same
to 12 months imprisonment. When he committed the
aforementioned housebreaking, he was 23 years of age. He is unmarried
and has
two children from different mothers. Before his arrest, he
had casual jobs as a taxi conductor and was also operating a car wash
business as an aid to better his income. On the information from the
pre-sentence report, from 2011–2016 he worked as a security
guard for different companies. Healthwise, it was placed on record
that he is HIV positive and receives treatment thereof. Recently
he
was diagonised with high blood pressure. He has been in custody
awaiting trial for a period of 4 years. His father died in 2022
while
the accused was in custody consequently he was unable to attend his
funeral and to bid him farewell and that has traumatised
him. He
maintains his innocence and has showed no remorse.
[11]
Moving over to accused 3, she was born on 26 August 1984, and
therefore she was 34 years of age
at the time. She is unmarried and
has no children of her own. She completed her grade 12 high school
formal education. Thereafter
she studied various courses to empower
herself for better job opportunities. She was gainfully employed as a
Driver at Fidelity
Security at the time of her arrest. She was
responsible of supporting her family financially before her arrest.
She has since lost
her employment. She has been in custody for four
years awaiting trial. She acknowledges and takes full responsibility
of her role
in the robbery incident relevant herein. She has no
previous convictions. She is a candidate for rehabilitation. During
her period
of incarceration she lost her sister and her stepmother.
She too could not attend their funerals and bid them farewell because
she was incarceration.
[12]
Turning to accused 4, he was born on 1 June 1985, and therefore he
was 33 years of age at the
time of the commission of the offences. He
was still a youth. His highest level of education is grade 2. He left
school in order
to be a shepherd to his father’s cattle. He was
born and grew up in a poor and rural environment. He was married and
sired
5 children. He has no previous conviction. He was employed as a
taxi conductor and as an aid to his income, he also did odd jobs,
like selling livestock, vegetables and wood to maintain his family.
He was the breadwinner of his family. He has been in custody
for four
years awaiting trial. He was described as a good father and husband
in the pre-sentence report. Since his incarceration
his family
struggles to make ends meet.
[13]
All counsel for the accused appreciated that most of the offences
that the accused are convicted
of, attract the prescribed minimum
sentences e.g. life imprisonment for count 4 and 15 years’
imprisonment for counts 1 and
5, unless there are substantial and
compelling circumstances justifying a deviation. With that in mind,
they advanced similar submissions
that, the following factors
considered cumulatively are substantial and compelling circumstances
which would justify a deviation,
namely; the ages of the accused, the
fact that the accused were first offenders, save for accused 2, the
pretrial detention period
of 4 years, the great prospects of
rehabilitation of the accused, the fact that nobody was assaulted
during the actual robbery
at Sasol Garage and their personal
circumstances. It was further argued by Ms
Coertsen
for
accused 1 that his co-operation with the police investigation is also
an additional factor that counts in his favour. For that
proposition
reliance was placed in the judgment by
Mthiyane
JA in
Vermeulen v S
[2004] 3 All SA 190
(SCA)
. I will consider all
the above factors in the context of this case, together with all the
other factors including the interests
of society and the aggravating
factors.
[14]
For accused 2 it was further argued by Mr
Bodlo
that in
addition to the factors mentioned in paragraph 13 above, his medical
condition, i.e. he is HIV positive, suffers from epileptic
fits and
high blood pressure are also factors to be considered although he is
not a first offender.
[15]
On behalf of accused 3, Mr
Ngqeza
argued that in addition to
the factors mentioned in paragraph 13 above, her role in the
commission of the robbery was minimal.
She was not physically
involved in the actual robbery but merely provided information which
enabled her co-accused to bring the
plan to fruition. Parallel to
that, she has acknowledged and takes full responsibility of her
actions as indicated in the pre-sentence
report. She has been in
custody for four years awaiting trial and she is a first offender.
She was gainfully employed before her
arrest. She succumbed the
pressured from accused 1 but, with hindsight she should have stood
firm and reported the matter instead
of disclosing the information.
She lost her employment as a result of her actions and she has
learned her lesson. No benefit was
received by her from the spoils of
the robbery. Accused 3 was only convicted of robbery unlike her
co-accused.
[16]
For accussed 4, emphasis was placed on his age, his lack of
sophistication, the minimal role
he played, that he is a first
offender, was married and was a breadwinner of his family despite his
access to minimal financial
resources, he is a candidate for
rehabilitation and the time of his pretrial detention. Further Ms
Cubungu
argued that because of his minimal role, there must be
disparity of sentence between him and accused 1 and 2. The extent of
her
submission was that accused 4 was at a wrong place at a wrong
time. For the reasons set out in paragraph 24 below I don’t
share the latter’s sentiments, that he was at a wrong place at
a wrong time.
[17]
Mr
Draaiman
, for the State, placed more emphasis on the
seriousness of the offences committed by the accused and that such
offences are prevalent
within the area of jurisdiction of this court.
In addition, he argued that the robbery was well planned and executed
and accused
3 played a pivotal role therein because she provided
crucial information to her co-accused which enabled them to execute
the robbery
smoothly. The cellphone records showed that the area
where the robbery occurred was visited by some of the accused on 26
April
2018. On the day of the robbery, shortly before it took place,
accused 3 gave accused 1 a heads up that they were coming (“
Siyeza
”).
Unfortunately for the accused, the quick and excellent response by
the police thwarted their action.
[18]
Mr
Draaiman
further argued that the sentence of life
imprisonment for murder should be imposed on accused 1 and 2 but not
for accused 4. Besides
the seriousness of the offence of murder, he
submitted that the actions of the accused placed innocent road users’
life in
danger. During the exchange of fire between the police and
the accused right from Impala Street to the corner of Chase Drive and
Ditchling Street, innocent members of the public could have been
injured. Indeed Mr
Kamkam
was injured by a stray bullet at the
secondary scene. Robbery of the cash in transit service providers is
very prevalent. He however,
conceded that the deceased was one of the
robbers and that the latter also fired shots at the police.
Consequently he lost his
life when he was fatally shot by the police
who were defending themselves. Therefore the deceased and the accused
must have foreseen
resistance hence they were armed.
[19]
In summary his submissions were that, there are no substantial and
compelling circumstances which
would justify a deviation from the
prescribed minimum sentences in respect of accused 1 and 2. However
for accused 3 and 4, he
aligned himself with the submisisons advanced
by their respective counsel and that, the period of 4 years in
custody awaiting trial
and the role they played in the actual robbery
was minimal. Furthermore he had no qualms for the sentences to run
concurrently.
He stressed the point that the interests of society
demands that the sentences to be imposed should serve as a
deterrence.
[20]
In
S v Skenjana
1985 (3) SA 51
(A),
Nicholas
JA, said:
“
So far as deterrence is concerned, there is no reason to
believe that the deterrent effect of a prison sentence is always
proportionate
to its length.
”
[21]
The length of punishment must be proportionate to the offence
committed by the accused. I shall
now consider all the factors
mentioned above in the context of this case, together with all the
other factors including the aggravating
factors and the interests of
society. And for obvious reasons I intend to deal with the murder
count first because is the most
serious one of them all and also
attracts the most harsh sentence in terms of the prescribed minimum
sentence legislation. In the
event I find that there are substantial
and compelling circumstances, that would be extended to the other
counts as well, namely,
count 1 and 5.
[22]
The deceased in count 4 was one of the robbers. He was a participant
in the planning and execution
of the robbery. Not only that he
travelled together with accused 1, 2 and 4 and unknown men including
the driver of the getaway
taxi from Mqanduli to Gqeberha. Crucially
he actively participated in the shooting of the police. In defence
for their life, the
police fatally shot and killed him. At the
secondary scene a 9mm semi-automatic pistol was recovered from him.
Accused 1, 2 and
4 were convicted of his murder on the basis of
common purpose and the principles set out in
S v Nhlapo
1981
(2) SA 744
(A) and
S v Molimi
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA). No doubt
murder is a serious offence which usually calls for severe
punishment. Circumstances however vary.
In casu
, the deceased
knew the risk associated with his actions. He was not coerced to be
party to the robbery. He was not an innocent
member of the public.
[23]
However, if one has regard to the accused personal circumstances
together with their ages, that
they are first offenders, except
accused 2, the pretrial detention period of 4 years and the prospects
of their rehabilitation
in prison, those factors are in my view
substantial and compelling circumstances justifying a lesser
sentence, than the prescribed
minimum sentences. A life imprisonment
would be too harsh a sentence and it would not serve the interests of
society in the context
of this case. Further life sentence would be
disproportionate to the crime, the offenders and the needs of
society. (See
S v Dodo
[2001] ZACC 16
;
2001 (5) BCLR 423
(CC)
and S v
Malgas (
supra)
. However the accused cannot escape a long term
of imprisonment.
[24]
Reverting to accused 4, I agree with Ms Cubungu that there must be a
disparity on sentence between
him and accused 1 and 2, because of the
minimul role that the former played. As indicated in paragraph 16
above, he was not at
a wrong place and at a wrong time. Totally not.
Accused 4 was part of the planning of the robbery with his co-accused
and other
unknown persons including the driver of the getaway taxi.
He was present in the taxi when the robbery occurred and during the
shoot
out with the police. Even after the robbery and the shooting
with the police, evidence placed him in the same vicinity here in
Gqeberha with accused 2. And again the State’s evidence placed
him with accused 2 in the vicinity of King William’s
Town the
same evening of the robbery. Furthermore on his own version, he
travelled back on the same getaway taxi with the same
driver from
East London back to his home town in Mqanduli. He never reported the
robbery to the police. Even during the pleading
stage of the
proceedings herein, he never admitted to have been in the taxi during
the robbery. That version only surfaced when
he was identified by one
of the State witnesses from the video footage of Colchester BP
garage.
[25]
With regard to accused 1 and 2, although the latter has a previous
conviction of housebreaking
which was committed in 2008, but both of
them played a dominant role in the commission of the robbery. They
were both inside the
shop at Sasol Garage, armed to the teeth.
Accused 2 instructed the people that were inside the shop to lie down
and threatened
to shoot Ms
Louw
, then owner of the Sasol
Garage. When
Saba
was disarmed of his firearm, it was handed
over to accused 1. Accused 1 and 2 together with the third unknown
man ran together
to the getaway taxi while one of them was carrying
the cash carnister which was robbed from
Saba
. In a cowboy
style, accused 1 stood by the taxi’s sliding door while it was
opened in motion and unashamedly fired shots
at the police when the
latter were chasing it. Accused 1 was the first person to jumped out
of the taxi at the corner of Bell Road
and Grysbok Street and
branished his firearm. Near the corner of Chase Drive and Ditchling
Street, accussed 1 alighted from the
getaway taxi and pointed his
firearm to Captain
Dirk
and the latter fired shots at him.
Accused 1 ran and hide himself on the nearby reeds where he was
eventually arrested by the police.
On a bigger scale of things, both
accused 1 and 2 played an almost equal degree of complicity, although
accused 2 has a previous
conviction, but that on its own would not
warrant a disparity on the sentence to be imposed.
[26]
Reverting to accused 3, she was only convicted of robbery with
aggravating circumstances. Her
role in the matter was to provide
information to her co-accused and that brought their plan to
fruition. But she was not physically
involved in the actual robbery.
Her assistance smoothen the execution of the robbery. However, as
found in the main judgment, she
was unaware that her co-accused would
be armed. Her personal circumstances are set out in detail in
paragraph 11 above, similar
with other accused, her age, the period
of pretrial detention, the fact that she was first offender, her
acknowledgement and appreciation
of her actions and the consequences
thereof and her prospects of rehabilitation are in my view
substantial and compelling substances
that warrant a deviation from
the 15 years’ imprisonment prescribed in section 51(2)(a).
Further she did not benefit from
the spoils of the robbery. Hopefully
while in prison she will benefit from programmes that could enhance
her life skills and not
to succumb to pressure easily.
[26]
In the circumstances the sentence that I intend to impose is the
following:
(a) For
accused 1 and 2 in respect of:
1.
Count 1 – 12 years’
imprisonment.
2.
Counts 2 and 3 – 6 years’
imprisonment for each count.
3.
Count 4 – 20 years’
imprisonment.
4.
Count 5 – 12 years’
imprisonment.
5.
Count 6 – 3 years’
imprisonment.
6.
The sentence imposed on counts 1, 2, 3, 5
and 6 shall run concurrently with the sentence on count 4.
(b) For
accused 3, on count 1– 10 years’ imprisonment.
(c) For
accused 4 in respect of:
1.
Count 1 – 12 years’ imprisonment.
2.
Count 2 and 3 – 6 years’ imprisonment for each count.
3.
Count 4 – 15 years’ imprisonment.
4.
The sentence imposed on counts 1, 2, and 3 shall run concurrently
with the sentence on count
4.
N
GQAMANA
APPEARANCES:
For
the State
:
Adv
M M Driman
For
Accused 1
:
Adv
D Coertsen
For
Accused 2
:
Mr
Bodlo
For
Accused 3
:
Mr Z
Ngqeza
For
Accused 4
: Adv
S
Cubungu
Dates heard
: 6, 19
May 2022; 27 June 2022; 25, 29 July 2022; 18, 19 August 2022
Date
judgment delivered :
7 September 2022