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[2023] ZAKZPHC 65
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S v Gumbi and Others (Sentence) (CC24/2023) [2023] ZAKZPHC 65 (15 June 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, NORTH EASTERN CIRCUIT
MTUBATUBA
Case No: CC24/2023
In the matter between:
THE STATE
and
ZAKHELE VUSI GUMBI
FIRST
ACCUSED
SIBUSISO VELENKOSINI
MKHWANAZI
SECOND ACCUSED
PHILANI CARLOS
MZIMELA
THIRD ACCUSED
SIYABONGA MICHAEL
SANGWENI
FOURTH ACCUSED
JUDGMENT
ON SENTENCE
MOSSOP
J:
[1]
On Friday, 26 May 2023 when the indictment
was read to you and you tendered your plea to it, I saw standing
before me four innocent
men. Men accused of wrongdoing, but innocent,
nonetheless, at that stage. That is no longer the case. Twenty days
later, those
four innocent men have been replaced by four convicted
criminals. You are no longer to be viewed as being ordinary members
of society
but you are now forever marked as being part of that group
of people that believes that the laws that govern the majority of us
are not applicable to themselves. The benefits and privileges that
you have enjoyed as free citizens of this young democracy are
to be
taken away from you because you have not respected society’s
laws and conventions.
[2]
These may sound like harsh, condemnatory
words, but in truth they are not. They merely describe what must now
follow upon a conviction
for serious criminal activity. Let me pull
no punches: what you have been convicted of is, indeed, serious
criminal activity. You
used firearms to commit a robbery in a shop in
a shopping mall, you fired indiscriminately and extensively at
members of the SAPS
and attempted to kill them with those firearms.
Criminal activity is all pervasive in our society. Right thinking,
law abiding
members of the community are outraged by people such as
yourselves who think they are entitled to simply do, and take, what
they
want, irrespective of other people’s rights. There is a
feeling in the community that crime is out of control. There is a
feeling in the community that crime does pay, despite the old adage
that it does not. The courts are viewed as the last bastion
in the
fight against such unlawful behaviour and, as Ms Ntsele correctly
argued, the community looks to the courts to impose sentences
that
will both punish those who commit such criminal activity and deter
those who are contemplating committing such criminal activity.
[3]
That having been said, and whilst I must
now acknowledge you as criminals, I must not lose sight of the fact
that while you are
criminals, you are also human beings. That means
that you are not perfect, for no human is a perfect being. Human
beings from time
to time will make mistakes. I also do not lose sight
of the fact that I am sentencing you in a South Africa that is very
different
to the historic South Africa from which we come. We see
things differently now, thankfully. We are much more cognisant of
each
other as human beings and we respect the inherent dignity that
all human beings must be afforded. We thus continue to strive to
acknowledge, respect and honour our humanity, even when imposing
sentences on criminals.
[4]
One
of the building blocks of our new society is the principal of ubuntu.
Ubuntu can loosely be defined as a fundamental African
value
embracing dignity, human interdependence, respect, neighbourly love
and concern. In
S
v Mankwanyane
,
[1]
the
Constitutional Court recognised this principal as one of the values
underpinning the Constitution when dealing with the question
of
criminal punishment. The Interim Constitution also incorporated the
concept of ubuntu from traditional jurisprudence. In
Mankwanyane
,
[2]
six of eleven judges identified ubuntu as being a key constitutional
value that:
‘
.
. . places some emphasis on communality and on the independence and
on the interdependence of the members of a community. It recognises
a
person’s status as a human being entitled to unconditional
respect, dignity, value and acceptance . . . The person has
a
corresponding duty to give the same. . .’
[5]
The Constitutional Court has made several
allusions to ubuntu being one of the core constitutional values of
human dignity, equality
and freedom. Though ubuntu is not
specifically mentioned in the final Constitution, it remains part of
our jurisprudence.
In
Port
Elizabeth Municipality v Various Occupiers
,
[3]
Sachs J said:
‘
The
spirit of ubuntu, part of the deep cultural heritage of the majority
of the population, suffuses the whole constitutional order.
It
combines individual rights with a communitarian philosophy. It is a
unifying motif of the Bill of Rights, which is nothing if
not a
structured, institutionalised and operational declaration in our
evolving new society of the needs for human interdependence,
respect
and concern.’
I shall attempt to infuse
the sentences that I must impose upon you with as much ubuntu as
possible. But while the lofty principles
referred to in the cases
that I have just mentioned demonstrate what we strive for, our
understanding of ubuntu also serves as
a mirror to show us the extent
to which you, personally, have failed to embrace and apply that
philosophy. This is revealed in
the disrespectful and despicable way
that you treated those people whom you found inside the store. Ms
Ntsele for the State correctly
remarked that your legal
representatives requested the court to show you mercy when you showed
none to the victims of your crimes.
You shall not be treated in the
manner that you treated your victims for if that did occur then this
court would be no better than
you. But you must appreciate that your
conduct will call for a very severe sentence.
[6]
In seeking the appropriate sentence to
impose upon you, I am guided by legislation passed by the National
Assembly which requires
certain minimum sentences to be imposed for
certain offences. I explained to you at the commencement of this
trial the concept
of minimum sentences and you acknowledged that you
understood what that meant. There is but a single offence amongst the
offences
of which you have been convicted that attracts a minimum
sentence. That is the offence of robbery with aggravating
circumstances
framed in counts 1, 2, 3, and 5 of the indictment,
which for first offenders attracts a minimum sentence of 15 years’
imprisonment
in terms of the provisions of section 51(2)(a) of Act
105 of 1997 (the Act), read with part 2 of Schedule 2 to that Act.
For a
second offender, the minimum sentence is 20 years’
imprisonment.
[7]
These provisions will obviously be of some
interest to Mr Mzimela, accused three, who has a previous conviction
for robbery. That
offence of which you were previously convicted,
according to the SAP69 document applicable to you, was ‘robbery’.
Ms
Ntsele said in argument that she doubted that you did not use a
firearm when committing that prior robbery. She may be correct.
But
ultimately, that assertion, no matter how prescient it may appear to
be, is not really of any assistance: the court does not
act upon
suppositions, but on facts. There is no evidence that a firearm was
used in that prior robbery nor is there any evidence
that you were,
in fact, convicted of robbery with aggravating circumstances. The
offence of robbery without aggravating circumstances
is not mentioned
in the Act and the minimum sentence of 20 years’ imprisonment
is accordingly not automatically in play.
But there will obviously
have to be a more severe sentence for you on the counts of robbery of
which you have been convicted compared
to those that your co-accused
will receive because of your criminal track record.
[8]
The
State sought, and obtained, your conviction, save for accused two, on
count 16 of possessing a prohibited firearm
[4]
in terms of the provisions of section 4(1)(f)(iv) of the Firearms
Control Act 60 of 2000 (the FCA), read, inter alia, with schedule
4
of the FCA. The State in doing so did not rely on the provisions of
the Act with regard to minimum sentences on this count. I
do not know
why that is the case, because in counts 17 and 18, being the counts
dealing with the unlawful possession of the .38
calibre Smith and
Wesson revolver and one round of ammunition for that weapon, it did
rely on the Act. As was stated in
Mhlongo
v The State
:
[5]
‘
Section
35(3) of the Constitution guarantees the right to a fair trial for
everyone charged with a criminal offence, while
s 84(1) of the
CPA stipulates that a charge must contain the essential particulars
of an offence.
Considering
the constitutional right of an accused to be sufficiently informed of
the charge, and other underlying values of the
Constitution, it is
very important that
a
charge sheet makes reference to provisions relevant to the sentence
for a particular offence; otherwise the Constitution would
become a
dead letter. This Court has said on numerous occasions that it
is always desirable that a charge sheet refers to
those provisions of
the law of relevance to the sentence to be imposed for the offence
charged. Although there is no fixed
rule, a failure to state the
relevant section in the Act, unless it occasions substantial
prejudice to the accused, does not necessarily
vitiate the whole
trial.
In
Ndlovu
,
this Court held that the State’s failure to give the accused
sufficient prior notice of the applicability of the statute
was fatal
to the sentence imposed, more so when the accused was
unrepresented. In
Legoa
this
Court did not prescribe any general rule on the issue, but emphasised
the importance of a clearly drafted charge sheet
and the reflection
of the fundamental principle of a fair hearing in the entire trial
process. It also
stressed
that an accused person should be given sufficient notice of the
State’s intention to rely on the minimum mandatory
sentencing
regime in every instance.’ [Footnotes omitted]
[9]
Perhaps
this course of conduct was adopted because the State perceived the
FCA to impose a minimum sentence of 25 years’ imprisonment.
So
much was stated by Ms Ntsele in her heads of argument.
[6]
But in that the State is mistaken. What Schedule 4 to the FCA deals
with is a maximum sentence, not a minimum sentence, that may
be
imposed. Thus, the maximum sentence that can be imposed for
possessing a firearm without a serial number appearing on it is
25
years’ imprisonment in terms of the FCA.
[10]
The State, by its own election, word and
deed, therefore does not rely upon the provisions of the Act on count
16. This is not a
situation where an applicable section has been
inadvertently omitted but the applicable statutory instrument named
and identified:
The Act is not mentioned at all in this count in the
indictment, only the FCA is mentioned. Nor can it be argued that the
warning
that I gave you about minimum sentences remedied the
situation. I spoke generally. I was unaware, as presumably your legal
representatives
were, that the minimum sentence on this count would
be sought by the State given the wording of the indictment and I
could not
therefore have been warning you of its possible
application. I accordingly approach the matter on the basis that
there is no applicable
minimum sentence on this count.
[11]
I am not compelled to impose the minimum
sentence on the counts of robbery with aggravating circumstances,
namely counts 1, 2, 3
and 5 of the indictment, upon which I have
convicted all four of you. I can impose a lesser sentence if I am
satisfied that substantial
and compelling circumstances exist which
justify the imposition of a lesser sentence. The Act does not define
what ‘substantial
and compelling’ circumstances are. This
is left to the courts to determine.
[12]
Courts
have consequently over the years considered what ‘substantial
and compelling circumstances’ may mean. A leading
case that is
often referred to when it comes to minimum sentences is the matter of
S
v Malgas
.
[7]
In that matter, the court stated that it is incorrect to hold the
view that
for
circumstances to qualify as substantial and compelling they must be
‘exceptional’ in the sense of being seldom encountered
or
rarely encountered. The court held that whatever nuances of meaning
may lurk in those words, their central thrust is obvious,
namely that
specified minimum sentences are not to be departed from lightly and
for flimsy reasons which cannot withstand scrutiny.
Speculative
theories favourable to the accused persons, maudlin sympathy,
aversion to imprisoning first offenders, personal doubts
as to the
efficacy of the policy of minimum sentences, and like considerations
are obviously not intended to qualify as substantial
and compelling
circumstances. But there is no reason to conclude that the
Legislature intended a court to exclude from consideration,
any or
all of the many factors traditionally and rightly taken into account
by courts when sentencing offenders.
[13]
The court, however, went on to state in
Malgas
that
courts are
required to approach the imposition of sentence conscious of the fact
that the Legislature has ordained the particular
prescribed period of
imprisonment as being the sentence that should ordinarily and
in the absence of weighty justification
be imposed for the listed
crimes in the specified circumstances.
[14]
In
my view, however, it is important when considering the
appropriateness of the sentence to be imposed upon you not to start
with
the mind-set that a minimum sentence that is prescribed is also
a just sentence. All the circumstances of the case must be
identified,
considered and evaluated and then it should be considered
whether the sentence is disproportionate to the crime, the offence
and
the legitimate needs of the community. That will require the
court to consider what a just sentence would be in all the
circumstances
of the case. If a just sentence falls materially below
the prescribed sentence there will be substantial and compelling
circumstances
to depart from the prescribed sentence.
[8]
[15]
Do any substantial and compelling
circumstances exist in respect of any of you? I have listened
carefully to what your respective
counsels have submitted regarding
your personal circumstances:
(a)
Accused one, Mr Gumbi: you are 32 years of
age and the father of a 15-year-old child. The highest educational
level that you attained
at school was grade 10 and prior to your
arrest you were involved in cutting peoples grass, in respect of
which you earned between
R3 700 and R4,000 per month. You, like all
your fellow accused, have been in custody for 16 months since you
were arrested. You
have four minor siblings that you help maintain.
Your counsel submits that you are remorseful for your conduct. I
shall return
to the concept of remorse later in this judgment. You
have no previous convictions;
(b)
Accused two, Mr Mkhwanazi: you are 32 years
of age and the father of four minor children, two of whom are in
grade two and two of
whom have not yet entered the educational
system. You passed grade 11 at school and were raised by a single
mother. You had gainful
employment at the time of your arrest at an
alarm firm in Isipingo, KwaZulu Natal, where you earned R6 000 per
month. You apparently
assist in the maintenance of your mother and
your minor children. You, too, have no previous convictions;
(c)
Accused three, Mr Mzimela: you are 41 years
old and the father of four children, the eldest of which was born in
2001 and the youngest
of which is 3 years old. At school you attained
a grade 11 level of education. You have, as previously mentioned, a
previous conviction
for robbery. During your incarceration, you
suffered the loss of your father. You were sentenced to imprisonment
in 2009 and were
released in 2014 and it appears that you have been
in and out of employment since then. You worked at a Spar store in
the bakery
section and at the time of your arrest you were working as
an Uber driver earning R2 100 per month; and
(d)
Accused 4, Mr Sangweni: you are 39 years of
age and not 20 years of age as reflected in the indictment. You have
three children,
the eldest of which is 22 years old and the youngest
of which is 6 years old. You were employed by Tronox for a period of
five
years prior to your arrest and were earning R5 000 per month.
You have a grade 12 level of education and no previous convictions.
[16]
Unfortunately, your personal circumstances
appear to be the norm in our present unequal society. Your counsel
submitted that none
of you have had an easy life. I accept that as
being true. But there are millions of people in this country who have
been born
into unfortunate circumstances and have struggled to make
their way in life who have not broken the law. I can therefore
discern
no basis for departing from the prescribed minimum sentence
on the count of robbery with aggravating circumstances because there
are no compelling and substantial reasons to for me to do so.
[17]
I must also pay attention to the facts of
this matter.
All
four of you took a decision to rob the Beauty Zone store on 2
February 2022. It was a bad decision. The author Mark Twain once
said
that good decisions come from experience and experience comes from
making bad decisions. The four of you will hopefully now
be able to
make good decisions in the future because you have made numerous bad
decisions in this matter. The decision to rob the
store was the first
of those; the decision to shoot at the SAPS was another; the decision
to get into the ceiling a third. The
list is lengthy. Reverting to
the facts, you armed yourselves with three firearms and ammunition.
You entered the store knowing
that there would at least be employees
present and you could reasonably have anticipated that there would
also be customers within
the store. There were, indeed, customers
present when you struck. You took them and the employees at gunpoint
to a small storeroom
at the rear of the store where you held them
against their will for at least 20 minutes. The witness impact
statements handed up
by the State reveals that your hostages were
terrified by your conduct. That terror is manifestly observable on
the videos that
the court was shown. The ladies in the storeroom were
besides themselves with fear and the point at which the deceased
almost shot
Mr. Dube is disturbing and almost unwatchable. Little
wonder then that Mr. Dube was required to forfeit his employment as a
security
guard in order to recover from this terrible experience. The
store manageress also mentions the mental anguish that she now
suffers
from, as does Ms Mchunu. Your conduct knew no restraint and
when your activities were discovered you fired on at least two
occasions
at the members of the SAPS who were sent to arrest you. The
cartridges recovered in the store reveals that 32 shots were fired
from accused one’s pistol. You actually hit one of the SAPS
members and the fact that you did not kill him is, as stated in
my
judgment, due more to good fortune than to good planning.
[18]
I indicated earlier in this judgment that I
would deal with the issue of remorse. Accused one is the only person
thus far who has
claimed to have any. In my view, none of you have
shown a single iota of remorse for your conduct. Nor can you, because
your version,
to which you still adhere, is that you were not
involved in the robbery and the other offences because you were all
shoppers in
the store. How then can you express remorse for being a
shopper? I put this conundrum to Mr Ntuli who was making submissions
in
this regard on behalf of accused one. He had no answer to the
difficulty that I drew to his attention.
[19]
In
my judgment, I mentioned the fact that all four of you took the oath
to speak the truth and immediately disregarded that undertaking.
You
should be ashamed of doing so. By falsely denying your complicity and
guilt in the matter, you have eliminated any faint possibility
of the
court finding space to temper the sentences to be imposed on you
because of genuine and profound remorse on your part. In
the matter
of
S
v Matyityi
,
[9]
Ponnan JA had the following to say on the issue of remorse:
‘
There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one’s error. Whether the offender is sincerely remorseful,
and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. It is to the surrounding actions
of
the accused, rather than what he says in court, that one should
rather look. In order for the remorse to be a valid consideration,
the penitence must be sincere and the accused must take the court
fully into his or her confidence. Until and unless that happens,
the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can find that an accused person
is
genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the accused to commit the deed;
what has
since provoked his or her change of heart; and whether he or she does
indeed have a true appreciation of the consequences
of those
actions.’ (Footnotes omitted)
[20]
I have no idea what motivated you to commit
the offences for which you have been convicted. You have not taken
the court into your
confidence in this regard. Because of this I
cannot find that any of you truly are remorseful or have acknowledged
the error of
your ways.
[21]
In sentencing you, I take into
account that all the events occurred on the same day at the same
place and I am aware of the fact
that there are multiple counts upon
which you are to be sentenced. I must accordingly ensure that the
cumulative effect of the
sentences to be imposed is just. That having
been noted, I consider the following to be just sentences:
1.
Accused one is sentenced on
:
(a)
Counts 1, 2, 3 and 5, being counts of robbery with aggravating
circumstances,
to 15 years’ imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that these sentences shall run concurrently with
each other.
(b)
Counts 12, 13 and 14, being counts of attempted murder, to 15 years’
imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that these sentences shall run concurrently:
(i)
with each other; and
(ii)
with the sentences imposed in terms of paragraph 1(a) above.
(c)
Count 16, being a count of unlawfully possessing a prohibited
firearm,
to 15 years’ imprisonment.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that 7 years of this sentence shall run
concurrently with the sentence imposed in terms of paragraph 1(a)
above.
(d)
The nett effect is that accused one is sentenced to 23 years’
imprisonment.
2.
Accused two is sentenced on
:
(a)
Counts 1, 2, 3 and 5, being counts of robbery with aggravating
circumstances, to 15 years’ imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that these sentences shall run concurrently with
each other.
(b)
Counts 12, 13 and 14, being counts of attempted murder, to 15 years’
imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that:
(i)
these sentences shall run concurrently with each other; and
(ii)
10 years of each sentences shall run concurrently with the sentences
imposed in terms of paragraph 2(a) above.
(c)
The nett effect is that accused two is sentenced to 20 years’
imprisonment.
3.
Accused three is sentenced on
:
(a)
Counts 1, 2, 3 and 5, being counts of robbery with aggravating
circumstances,
to 18 years’ imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that these sentences shall run concurrently with
each other.
(b)
Counts 12, 13 and 14, being counts of attempted murder, to 15 years’
imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that these sentences shall run concurrently:
(i)
with each other; and
(ii)
with the sentences imposed in terms of paragraph 3(a) above.
(c)
Count 16, being a count of unlawfully possessing a prohibited
firearm,
to 15 years’ imprisonment.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that 7 years of this sentence shall run
concurrently with the sentence imposed in terms of paragraph 3(a)
above.
(d)
The nett effect is that accused three is sentenced to 26 years’
imprisonment.
4.
Accused four is sentenced on
:
(a)
Counts 1, 2, 3 and 5, being counts of robbery with aggravating
circumstances,
to 15 years’ imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that these sentences shall run concurrently with
each other.
(b)
Counts 12, 13 and 14, being counts of attempted murder, to 15 years’
imprisonment on each count.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that these sentences:
(i)
shall run concurrently with each other; and
(ii)
shall run concurrently with the sentences imposed in terms of
paragraph
4(a) above.
(c)
Count 16, being a count of unlawfully possessing a prohibited
firearm,
to 15 years’ imprisonment.
In terms of the
provisions of
section 280(2)
of the
Criminal Procedure Act 51 of
1977
, it is ordered that 7 years of this sentence shall run
concurrently with the sentence imposed in terms of paragraph 4(a)
above.
(d)
The nett effect is that accused four is sentenced to 23 years’
imprisonment.
5.
N
o determination in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
is made. All four accused are
consequently unfit to possess a firearm.
6.
The Taurus 9mm pistol referred to in count 16 and the Smith
and
Wesson .38 revolver and one round of ammunition capable of being
discharged from that weapon referred to in counts 17 and 18
respectively are declared forfeited to the State.
MOSSOP J
APPEARANCES
Counsel
for the State:
Ms
T P Ntsele
Instructed
by:
Director
of Public Prosecutions,Pietermaritzburg
Counsel
for accused one and two:
Mr
M R Ntuli
Instructed by:
Legal Aid
Durban
Counsel for accused
three and four:
Mr P Daniso
Instructed by:
Legal Aid
Durban
Date
of Hearing:
23,
26, 29, 30, 31 May 2023, 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15 June
2023
Date
of Judgment:
15
June 2023
[1]
S
v Mankwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC).
[2]
S
v Mankwanyane,
infra,
para 224.
[3]
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 30.
[4]
Section
4(1)(f)(iv)
of the FCA provides that a prohibited firearm is any
firearm the serial number or any other identifying mark of which has
been
changed or removed without the written permission of the
Registrar.
[5]
Mhlongo
v The State
[2016]
ZASCA 152; 2016 (2) SACR 611 (SCA) para 15.
[6]
The
concluding sentence of the State’s heads of argument read as
follows: ‘What the accused’s [sic] placed before
this
court is nothing out of the ordinary and therefore this Honourable
court should not deviate from the prescribed minimum
sentence of 25
years’ imprisonment is [sic] the count 16; Possession of a
prohibited firearm; 15 years in respect of Robbery
with aggravating
circumstances.’
[7]
S
v Malgas
2001
(2) SA 1222 (SCA).
[8]
S
v GK
2013
(2) SACR 505
(WCC) para 14.
[9]
S
v Matyityi
2011
(1) SACR 40
(SCA).