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[2024] ZAECMKHC 32
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S v Qosho and Others (CC41/2023) [2024] ZAECMKHC 32 (8 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: CC 41/2023
In the matter between:
THE STATE
and
MANDLA
QOSHO
Accused
1
SIYANA MAKALENI
Accused No. 3
SIGAGELA MGWATYU
Accused No.4
SENTENCE
BANDS J:
[1]
On
4 March 2024, I convicted Mandla Qosho (“
accused
1
”);
Siyanda Makaleni (“
accused
3
”)
and Sigagela Mgwatyu (“
accused
4
”)
on the charges against them; all three having pleaded guilty in
accordance with the provisions of section 112(2) of the
Criminal
Procedure Act 51 of 1977 (“
the
Act
”).
I further ordered that the trial in respect of the erstwhile accused
number 2 in these proceedings, Themba Dingela
(“
Dingela
”),
[1]
be held separately from the trial against accused 1, 3 and 4.
This judgment concerns the sentence proceedings in respect
of all
three accused.
[2]
Accused
1 was convicted on two charges of robbery with aggravating
circumstances; two charges of kidnapping; and 2 charges of murder,
all of which emanated from the same incident, to which I shall
return. Furthermore, in relation thereto, he was convicted
of
the unlawful possession of a firearm and ammunition in contravention
of the
Firearms Control Act 60 of 2000
. Accused 3 and 4, in
relation to the same incident, were each convicted on two charges of
robbery with aggravating circumstances;
and two charges of
kidnapping.
[3]
On
the night of 8 July 2023, 56 year old Zoleka Gantana (“
Zoleka
”)
and her newly appointed assistant, 27 year old Kholosa Mpunga
(“
Kholosa
”),
were working in a modest grocery store, situated on Zoleka’s
property, in Ncerha Village 7, Kidds Beach, East London.
Unknown to them, accused 1, who at that stage resided within walking
distance from Zoleka’s property (84 meters away), had
contacted
his co-accused and another man referred to only as ‘Tiger’,
[2]
inviting them to attend upon his home. There, they planned the
robbery of Zoleka’s white Isuzu bakkie (“
the
vehicle
”).
According to the statements of accused 1, 3 and 4, accused 1, who was
armed with an unlicensed firearm and ammunition,
proceeded to the
store, together with accused 3 and 4; Dingela; and Tiger.
Accused 1, 3 and 4 all admit that they foresaw
the possibility that
the firearm would be utilised, should they encounter any resistance.
They reconciled themselves with
such a possibility. Cable ties
and gloves formed part of their artillery.
[4]
The
men gained entrance onto Zoleka’s property through an entry
point, which had been cut into her boundary fence. It
is not
clear whether the entry point was made on the night of the incident
or whether it had been done on a prior occasion in preparation
for
the commission of the offences. The men, having gained entry
onto the property, proceeded to the store, where they found
Zoleka
and Kholosa still working. The two women were threatened and
forced to lie on the floor. The men demanded the
keys to
Zoleka’s vehicle, which she handed to them. Thereafter,
the men tied Zoleka and Kholosa’s hands behind
their backs
utilising the cable ties.
[5]
Accused
3 proceeded to the vehicle and brought it closer to the store, which
was then ransacked. Stock to the value of R6,930.88,
consisting
of everyday items such as Sunlight dishwashing liquid; batteries;
Pampers disposable diapers; bread; biscuits; and tinned
food, was
loaded onto the back of the vehicle. Once satisfied, Zoleka and
Kholosa were forced onto the back of the vehicle,
absent a canopy,
and driven some 49 kilometres to a rural (and very remote) farm in
Peddie owned by the father of Dingela and accused
4, Daninge Farm.
I pause to mention that Dingela resided in a back yard flatlet
located behind the main farmhouse.
[6]
On
arrival at the farm, Zoleka and Kholosa were taken to an isolated,
abandoned shack
[3]
on the
property, situated in the middle of the veld, 364 meters away from
the main farmhouse. It is there that the two women
spent the
last, what must have been horrifying, day-and-half of their lives,
being held, against their will, until their death
on 10 July 2023.
While the women were guarded by accused 1, the stock from the
store was offloaded from the vehicle and placed
in various chests
situated in and around the main farmhouse and back yard flatlet.
Money and bank cards (together with their
pin numbers) were demanded
from Zoleka, which she handed over. On the morning of 9 July
2023, accused 3, together with Tiger,
proceeded to an ATM at the
Gillwell Mall, where a total amount of R1,000.00 was drawn from
Zoleka’s Standard Bank account,
in two transactions at 08h43
(R200.00) and 08h46 (R800.00) respectively.
[7]
According
to the statement of accused 1, on 10 July 2023, he and Dingela took
Zoleka and Kholosa to a riverbank, situated 1.39 kilometres
away from
the shack, lineally, where accused 1 executed the two women by
gunshot to the head. Following their execution,
accused 1 and
Dingela built a fire in a sandy pit, in which the bodies of Zoleka
and Kholosa were burnt. The women’s
charred remains were
thereafter cut into fist sized pieces with a panga and thrown into
the river.
[8]
A
breakthrough in the investigation was made on 12 July 2023 when
Zoleka’s missing vehicle, which had fortuitously become
stuck
in mud due to recent heavy rainfall, was found abandoned on the side
of the road, 2.56 kilometres away from Daninge Farm.
Whilst at
the time of its recovery, both number plates had been removed, with a
false number plate having been fitted to the vehicle’s
rear-end, the original licence disk remained on the vehicle, which
depicted the vehicle’s registration number. The
vehicle
was swabbed and dusted for forensics. The right middle
fingerprint of Dingela was lifted from the outside top right
edge of
the driver’s window. He was later arrested on the same
day.
[9]
The
investigations continued over the course of the next two days, with
accused 3 and 1 being arrested on 14 and 15 July 2023, respectively.
[10]
Whilst
items belonging to both of the deceased were identified and recovered
from the buildings situated on Daninge Farm, confirming
their prior
presence; by 14 July 2023, they had still not been found. The
father of Dingela and accused 4 confirmed having
seen a woman in the
shack, together with a man (presumably accused 1) whilst walking on
his farm.
[4]
According to
the investigating officer, Warrant Officer Human, a further
breakthrough in the case was made when Dingela made
a pointing out,
during which he pointed out,
inter
alia
,
the sandy pit in which the women’s bodies had been burnt and
cut into pieces, as well as the river, into which their remains
had
been discarded. The photographs tendered into evidence
depicting the fist-sized charred remains of the two deceased,
which
were recovered from the river, clearly depict the extent of the
effort that was undertaken in an attempt to conceal the bodies
of
Zoleka and Kholosa and to accordingly, conceal the commission of the
offences.
[11]
Accused
4 was subsequently arrested some six months later on 12 January 2024.
[12]
Accused
1 is subject to a prescribed minimum sentence of life in respect of
counts 5 and 6 by operation of
section 51(1)
, read with
Part 1
of
Schedule 2, of the
Criminal
Law Amendment Act 105 of 1997
(“
Act
105 of 1997
”), which
prescribes minimum sentences, unless substantial and compelling
circumstances are found to be present.
In respect of accused 1,
3 and 4’s convictions on counts 1 and 4, for robbery with
aggravating circumstances; and on counts
2 and 3, for kidnapping, the
accused are each subject to minimum sentences of 15 and 5 years
respectively in accordance with the
provisions of 51(2)(a) and
51(2)(c) of Act 105 of 1997. The State gave notice of their
intention to request the imposition
of a sentence in excess of the
minimum sentence in relation to counts 2 and 3.
[13]
The
starting point in respect of the convictions falling within the ambit
of section 51(1) of Act 105 of 1997 is not a clean slate
upon which I
am free to inscribe whatever sentence I deem appropriate.
[5]
As emphasised in
S
v Malgas
:
[6]
“
[A]
court was not be given a clean slate on which to inscribe whatever
sentence it thought fit. Instead, it 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, ante omnia
as
it were, any or all of the many factors traditionally and rightly
taken into account by courts when sentencing offenders.
”
[14]
In
approaching the sentencing of the accused, I am to impose sentences
that will strike an appropriate balance between the seriousness
of
the crimes of which they have been convicted; the personal
circumstances of the accused; and the legitimate expectations and
legal interests of the community.
[15]
The
crimes for which the accused have been convicted of are heinous and
show a complete disregard for human life. The robbery,
with
aggravating circumstances, culminating in the kidnapping of Zoleka
and Kholosa, who were transported in the middle of the
night like
cattle and thereafter held in degrading circumstances until their
murder, was pre-meditated; unprovoked; and cowardly.
The
seriousness thereof was conceded by Mr Charles who appeared on behalf
of all three accused.
[16]
The
devastation and lasting impact of the carefully planned and executed
actions of the three accused was palpable in court, whilst
listening
to the emotional testimony of Zoleka’s daughter, Nombuntu
Gantana (“
Nombuntu
”);
and the mother of Kholosa, Ntombekhaya Mpunga.
[17]
Zoleka
was described as having shared a close relationship with her family
members. She was a daughter; a grandmother to two
young
grandchildren; a mother of two; and a friend. She was actively
involved in the upliftment of the community and a leader
at her
church. Despite her modest beginnings in life, she held a
strong view of education, which she in instilled in her
children.
This is evidenced not only by the qualifications, which she had
obtained, namely a certificate in business management
and another in
theology, but also through her children; her daughter being the
present Deputy Director of Communications for the
Department of
Correctional Services in the Eastern Cape. At the time of her
death, she was financially responsible for approximately
10 family
members, including her mother; her nieces and nephews; and a family
member with a disability. This she did from
the revenue
received from her two businesses. Nombuntu explained that the
vehicle in question was purchased by her in 2019
as a birthday gift
for her mother, to assist her in the running of her businesses.
The vehicle was a source of much joy for
Zoleka.
[18]
Ntombekhaya
described her daughter, Kholosa, as a quiet young woman who loved to
laugh and sing. She was a single mother of
a beautiful two-year
old daughter and was actively involved in the community and her
church. After completing grade 12, Kholosa
studied two years
towards a diploma in computers, whereafter she worked as an assistant
teacher at two different schools.
Ntombekhaya, through tears,
testified how Kholosa had travelled far from home a mere ten days
prior to the incident to take up
employment with Zoleka for the
purposes of: (i) assisting her financially, as she was struggling;
and (ii) contributing towards
Kholosa’s younger brother’s
traditional initiation ritual, which was scheduled for the latter
part of 2023. Ntombekhaya
described how she had lived in hope
that her daughter would be found following the recovery of Zoleka’s
vehicle.
[19]
The
devastation and trauma experienced by Zoleka and Kholosa’s
families was further exacerbated by the fact that they were
unable to
properly mourn for their loved ones during the extended period of
investigation into the matter, which required the forensic
analysis
of their body parts, which were thereafter presented to them to
bury. In this manner, they were denied of their
cultural burial
rituals of dressing and viewing the bodies of their loved ones, prior
to burial, in order to say goodbye.
The families are not at
peace and cannot move on with their lives, knowing full-well that
what they have buried is in all likelihood
only part of their loved
ones’ bodies.
[20]
I
have had regard to personal circumstances of each of the accused
(through their legal representative from the bar), who elected
not to
testify in mitigation of their sentences. I find that there are
no substantial and compelling circumstances which
militate against
the imposition of the minimum sentences set out above. I have
reached this conclusion for the following
reasons.
[21]
Accused
1 is 46 years of age and is currently single and unemployed.
His highest level of education is grade 10, having dropped
out of
school during his grade 11 year. He is the father of two minor
daughters, both of whom reside with their mother.
He has prior
convictions of theft and robbery for which he was sentenced to six
years’ imprisonment, of which three were
suspended, on 19
October 2015.
[22]
Accused
3 is 45 years of age and is also currently single. He is the
father of one major son who resides with his mother.
His
highest level of education is grade 11. Prior to his arrest, he
was employed as a soil investigator earning approximately
R7,000.00
per month. Accused 3 has a prior conviction of housebreaking
which dates back to 2002 and is for all intents and
purposes a
first-time offender.
[23]
Accused
4 is 54 years of age and like accused 1 and 3, is also currently
single. He dropped out of school during the course
of his grade
9 year and was unemployed at the time of his arrest. He is the
father of three children, each being born to
a different mother.
Save to recall that his one child was born in 2013, he was unable to
recall their respective ages.
Accused 4 has a long line of
previous convictions having been convicted of stock theft in 1985 and
1986 respectively. In
1997, he was thereafter convicted on
various counts of attempted murder; housebreaking; and murder, for
which he received an effective
sentence of 22 years imprisonment.
Significantly, at the time of the commission of the offences
pertaining to the present
matter, accused 4 was out on special
remission of sentence until August 2025, having been released on 27
April 2012.
[24]
The
three accused’s election not to testify leads me to the
inescapable conclusion that nothing further could be said in their
favour. This notwithstanding, their legal representative
implored upon me to find that there were substantial compelling
circumstances to depart from the minimum sentences applicable, citing
the three accused’s remorse as a factor to which I
ought to
have regard. Such remorse was said to be evident in each of the
accused having pleaded guilty, with the same one-line
sentence being
apparent in each of their pleas, in the following terms:
“
I
am pleading guilty out of remorse and wish for the court to have
mercy on me
.”
[25]
Perhaps
let me start by stating that at no stage of the proceedings, during
which detailed evidence of the shocking events was described,
was
there an iota of remorse visible on behalf of any of the accused.
The evidence linking the accused to the offences was
overwhelming.
Not one of the accused came forward voluntarily, remorseful of their
actions, prior to them pleading guilty
on 4 March 2024. As
stated in paragraph [14] of
Matyityi
:
“
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. There is no indication that any
of this, all of which
was peculiarly within the respondent's
knowledge, was explored in this case
.”
[26]
On
the basis of the evidence placed before me, I cannot even conclude
that the accused are regretful of their conduct, let alone
remorseful
therefor. The premediated actions, which unfolded over the
course of 8 July to 10 July 2023 as set out above,
in the face of
accused 1 and 4’s past convictions, is strongly indicative of
the fact that they have not been encouraged
by their past punishments
to lead reformed lives. There exists no explanation as to why
it was necessary to kidnap, hold,
and thereafter take the lives of
the deceased; already having robbed Zoleka of her vehicle and the
store of its stock. These
actions were senseless. The
only conclusion that can be drawn is that accused 1, having been a
member of the same community
as Zoleka, residing in close proximity
to her, was fearful of being implicated in the commission of the
offences and wished to
dispose of all possible evidence at any (and
at all) cost.
[27]
To
depart from the minimum sentences herein would be to ignore the
objective gravity of the offences; their prevalence in this country
and the legislature’s quest for severe and standardised
responses by the courts as was cautioned against in
S
v
Matyityi.
In
respect of counts 2 and 3 (kidnapping), a sentence in excess of the
prescribed minimum sentence is indicated in light of the
aggravating
features surrounding the commission of the offence in question.
The State argued that 10 years’ imprisonment
would be
appropriate. The accused’s legal representative elected
to advance no submissions in this regard. Taking
into account
the circumstances of this case, I am of the opinion that 8 years’
imprisonment is appropriate.
[28]
In
sentencing accused 3 and 4, I am mindful not to lose sight of the
crimes for which they have been convicted and not to allow
the
brutaility of their murder and the events that unfolded thereafter to
conceal the bodies of the deceased (at the hands of others)
to cloud
my judgement.
[29]
In
light of the aforesaid, the following sentences are imposed:
Accused
1
1.
On
counts 1 and 4, robbery with aggravating circumstances, 15 years’
imprisonment in respect of each count.
2.
On
counts 2 and 3, kidnapping, 8 years’ imprisonment in respect of
each count.
3.
On
counts 5 and 6, murder, life imprisonment in respect of each count.
4.
On
count 7, for contravening section 3(1) read with section 120(1)(a)
and 121 of the Firearms Control Act 60 of 2000 (the unlawful
possession of a firearm without a licence), eight years’
imprisonment.
5.
On
count 8, for contravening section 90 read with s 120(1)(a) and 121 of
the Firearms Control Act 60 of 2000 (the unlawful possession
of
ammunition), 4 years’ imprisonment.
6.
It
is ordered that the sentences imposed on each of the counts are to
run concurrently.
Accused
3
1.
On
counts 1 and 4, robbery with aggravating circumstances, 15 years’
imprisonment in respect of each count.
2.
On
counts 2 and 3, kidnapping, 8 years imprisonment in respect of each
count.
3.
It
is ordered that the sentences imposed on each of the counts are to
run concurrently.
Accused
4
1.
On
counts 1 and 4, robbery with aggravating circumstances, 15 years’
imprisonment in respect of each count.
2.
On
counts 2 and 3, kidnapping, 8 years’ imprisonment in respect of
each count.
3.
It
is ordered that 3 years of the sentences imposed in respect of counts
2 and 3 are to run concurrently with those imposed in respect
of
counts 1 and 4. Accordingly, the effective sentence in respect
of accused 4 is that of 20 years imprisonment.
I BANDS
JUDGE OF THE HIGH
COURT
Heard: Heard: 5 and 6
March 2024
Delivered: 8 March 2024
[1]
Who
pleaded guilty to all charges against him save for those in respect
of murder, to which he pleaded not guilty.
[2]
Who
is now at large.
[3]
From
the photographs taken of the scene, the shocking and degrading
conditions in which Zoleka and Kholosa spent the last, what
must
have been horrifying, day-and-a-half of their lives, in the middle
of winter, is apparent. The abandoned metal shack,
which
clearly was not constructed for human habitation, consists of four
walls, a flat roof, a dirt floor, and a door.
But for the
door, the remaining structures consist of old rusty corrugated metal
sheeting. There is no apparent ventilation.
The floor on
which they would have rested, if they were able to; simply a dirt
floor littered with stoned and rubbish.
One red chair stands
in the corner of the shack – presumably for the comfort of
accused 1 as he guarded over the women.
No ablution facilities
are in sight.
[4]
There
exists no explanation as to why he did not sound the alarm to the
authorities.
[5]
S
v Matyityi
2011
(1) SACR 40 (SCA); [2010] 2 All SA 424 (SCA)
[6]
S
v Malgas
[2001]
3 All SA 220
(A)