Ntuli and Another v S, S v Xhego (A69/2011) [2012] ZAFSHC 158 (16 August 2012)

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[2012] ZAFSHC 158
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Ntuli and Another v S, S v Xhego (A69/2011) [2012] ZAFSHC 158 (16 August 2012)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A69/2011
In the appeal between:-
VINCENT XOLANI
NTULI
................................................
First
Appellant
SIMIKIWE GANYAZA
..................................................
Second
Appellant
and
THE STATE
...............................
Respondent/Appellant
in Cross-Appeal
and
SIBULELO PATRICK
XHEGO
.
.................
Respondent
in Cross-Appeal
_____________________________________________________
CORAM
:
HANCKE AJP
et
KRUGER
et
MOCUMIE, JJ
_____________________________________________________
JUDGMENT BY
:
KRUGER, J
_____________________________________________________
HEARD ON
:
13 AUGUST 2012
_____________________________________________________
DELIVERED ON
:
16 AUGUST 2012
_____________________________________________________
[1] This is on appeal
against the judgment of Rampai J sitting in the circuit court at
Virginia. The appellants are referred to
as accused in this judgment
so as to avoid confusion. Accused no 1, S P Xhego, is the respondent
in the State’s appeal against
sentence. His application for
leave to appeal against his convictions (he was convicted on counts
3, 4, 5 and 6) was refused. Accused
no 2 is the first appellant. He
was convicted on counts 1 to 6. He applied for and was granted leave
to appeal against his convictions
on counts 1 and 2. Accused no 3 is
the second appellant. He was convicted on counts 3, 4, 5 and 6 and
was granted leave to appeal
against those convictions.
[2] As to the merits this
court is only seized with the convictions of accused no 2 on counts 1
and 2 and the convictions of accused
no 3 on counts 3, 4, 5 and 6.
[3] Regarding sentence,
the court
a quo
granted the State leave to appeal against the
sentences imposed on accused no 1 (Xhego). The State gave notice of
its intention
to apply for an increase in the sentences of accused no
1 on counts 3, 4, 5 and 6 and the sentences of accused no 2 and 3 on
the
charges they were convicted of. The State’s notice to
increase sentence contains an obvious error in that the sentences of

accused no 2 and 3 have been transposed. All the sentences are thus
before this court. The State contends the sentences are too
lenient.
I
CONVICTION
OF ACCUSED NO 2 (FIRST APPELLANT) ON COUNTS 1 AND 2
[4] Counts 1 and 2
concerned the robbery and murder of Ms Claassens at Bothaville on 26
March 2007. Mr Nel, for accused no 2, points
out that accused no 2
was convicted solely on circumstantial evidence. The most important
piece of circumstantial evidence against
accused no 2, was his
possession of the deceased’s cell phone.
[5] Mr L.V.W. Rossouw
testified that he is a private investigator who specialises in cell
phone related investigations. On 14 January
2008 Mr van Zyl
instructed Rossouw to investigate the death of his mother on 27 March
2007 at Bothaville (counts 1 and 2). Rossouw
got the particulars of
the cell phone of the deceased Ms Claassens, it was a Nokia 3410
which had been taken from the scene during
the robbery and murder.
Rossouw also determined the IMEI unique number of the cell phone.
[6] On 7 February 2008 he
went to
Northam, in the North-West
province as a result of information he had received. There he saw a
person by the name of Bhash Marishi,
who had the deceased’s
Nokia cell phone in his possession. Rossouw checked the cell phone
records (about which evidence was
given in the trial) which showed
that the deceased’s Nokia was used in the period 27 March –
29 March 2007 with a 078-number,
an MTN pay-as-you-go number. That
number was put into deceased’s phone after her sim card was
removed. Rossouw also determined
that the same 078-number was used
from 12 April – 21 April 2007 in the Nokia 6230i, which had
been robbed from Ms Vermaak
on 10 April 2007 (count 3). The full
078-number was: 078 417 9510, being a pay-as-you-go, one cannot
determine the owner. Mr Makhene,
for Accused No 2, did not
cross-examine Rossouw.
[7] Bhasha Marishi
testified that he bought Exhibit 1 the deceased’s cell phone at
Beit Bridge on 4 January 2008, and confirmed
that Rossouw found the
cell phone in his possession.
[8] The mother of Accused
No 2, Thandeka Manhotile Ntuli testified that her cell phone number
is 078 440 8985. She said she did
not recall Accused No 2 calling her
on that number. There was no cross-examination.
[9] The cell phone
evidence is set out by the court
a quo
in pars [93] –
[100]. Important evidence is that on 29 March 2007 (two days after
the robbery and murder of Ms Claassens,
counts 1 and 2) the
deceased’s cell phone was used to call 078 440 8985 the
admitted number of the mother of Accused No 2,
and the call was
picked up by the Kutlwanong tower, which is 500 metres from Accused
No 2’s house. On 12 April 2007 (two
days after the robbery of
Ms Vermaak) at 19:45:40 the same sim card was used in Ms Vermaak’s
cell phone to again call Accused
No 2’s mother at 078 440 8985
(Exhibit “P”, p. 873). The court
a quo
describes
this as the most crucial evidence. This means that there are two
calls using both the robbed cell phones, to Accused
No 2’s
mother.
[10] The reasoning of the
trial judge in relation to the cell phone evidence is detailed and to
the point. It cannot be faulted.
It establishes the guilt of Accused
No 2 on counts 1 and 2 beyond reasonable doubt, especially in the
absence of any acceptable
explanation by Accused No 2, who denied any
knowledge of the two cell phones, Exhibits 1 and 2. He denied phoning
his mother.
[11] Mr Nel, for Accused
No 2 in his heads of argument submitted that the court
a quo
erred in finding that Accused No 2 was the owner of sim card no. 078
417 9510 but during argument in court conceded that on the
evidence
no-one else would have called Accused No 2’s mother from those
instruments. As Ms Ferreira, for the State, points
out in her
detailed reasoning, that number was used in both the handsets of the
deceased Ms Claassens and that of Ms Vermaak to
call Accused No 2’s
mother. As she says, both stolen handsets were used by the 078 417
9510 number within two days of acquiring
these cell phones, and both
these times the mother of Accused No 2 was phoned. In the absence of
any acceptable exculpatory
explanation,
the guilt of Accused No 2 is clear. There is no basis to interfere
with Accused No 2’s conviction on counts 1
and 2.
II
CONVICTION
OF ACCUSED NO 3 (SECOND APPELLANT) ON COUNTS 3, 4, 5 AND 6
[12] Counts 3 and 4
concern the robbery and attempted murder of Ms Vermaak on Eva farm,
district Odendaalsrus on 10 April 2007.
Count 5 concerns the four
rifles detailed in the charge sheet, and count 6 lists two pistols,
namely the Heckler and Koch and the
Inox.
[13] An identity parade
was held, but because the proceedings at the parade appeared to have
been unfair to the accused, the court
a quo
attached no weight
to the result of the identity parade.
[14] In the judgment the
court
a quo
points to the fact that Ms Vermaak was certain
that Accused No 3 was not inside her house during the attack. The
evidence showed
that there was a person outside at the time. Accused
No 3 was identified by Mr Qoai, who testified that about 4h00 on 10
April
2007 he was asleep. Four males arrived. He thought it was the
owner of the farm, but it was a person who asked Mr Qoai whether he

still remembered him, saying he had seen Mr Qoai on a previous
occasion when he was drinking beer there five months previously

together with Saul. Mr Qoai then remembered him.
[15] Each of the four men
had a rifle hanging on his shoulder. The men asked Qoai to keep the
rifles and other items for them until
the morning, that was Accused
No 1. Accused No 2 and 3 were also present. After the four had left,
Qoai called the owner of the
nearby shop, and later the police
arrived and found the rifles and other items,
inter alia
jewellery. The rifles were identified as those that had been robbed
at Ms Vermaak’s farm. In cross-examination it appeared
that Mr
Qoai’s left eye was totally disfunctional. In cross-examination
on behalf of Accused No 3 Qoai said his eyesight
only became weak
after he had already seen the four men on 10 April 2007. Mr Qoai
confirmed that only Accused No 1 spoke to him.
All four entered
Qoai’s house, one by one, and put the rifles down in the house.
When it was put to Mr Qoai that Accused
No 3 was not present, Mr Qoai
said he was.
[16] Mrs Qoai testified
that on the day in question four men arrived at their house. They
entered the house, and asked permission
to leave firearms there. They
put the rifles on the floor next to the wardrobe. In
cross-examination she said she was lying down
on the floor when she
identified Accused No 3. He was about one metre from her. They said
they were going to come and collect the
items the following day in
the morning. In court she pointed out Accused No 1, 2 and 3. The four
left and they returned the next
day at 8h00, as they had promised.
They rushed to her house to get their weapons and goods they had left
the previous night. In
cross-examination she reiterated that Accused
No 3 was present the next morning when the four came to fetch the
rifles.
[17] The court referred
to the evidence of Mr and Mrs Qoai, but found it not sufficiently
reliable as to the identity of Accused
No 3, by itself, but the court
found the evidence of Mr Tau important for the identification of the
accused.
[18] The witness Mr Tau,
to whom Accused No 3 sold the firearm on 21 April 2007 made a good
impression on the court
a quo
. Mr Tau testified that he is 25
years old. On 27 April 2007 Mr Tau and Mr Paul Blouw were at
Frankie’s place in Odendaalsrus.
Accused No 1 and three men
arrived there. Accused No 2 and 3 were with Accused No 1. Accused No
1 offered to sell a firearm to
Mr Tau for R700. Accused No 3 went to
fetch the firearm. Accused No 3 had the firearm in his possession
when they returned. In
cross-examination it was put to Mr Tau that he
was arrested for the illegal possession of a firearm, which he
admitted. It was
further put to him that he identified Accused No 3
because Accused No 3 was in police custody at the same time. Mr Tau
denied that
he knew that Accused No 3 had been arrested on the same
case. The court
a quo
found that the evidence of Mr Paul Blouw
provided support for Mr Tau. On 21 April 2007 he was with Mr Tau. He
was present when
Mr Tau bought the firearm. He identified Accused No
1 and 2 in court as the persons who were present when the firearm was
sold.
He said he did not see Accused No 3. On that day Mr Tau came to
see him, and Mr Tau asked Mr Blouw to keep a firearm for him in

Blouw’s house, and Mr Blouw agreed to store the firearm.
[19] The court
a quo
found in the judgment that Accused No 3 was there when the firearm
(Exhibit 7) was sold to Mr Tau and that Mr Blouw said accused
3 was
one of the men who arrived on that day and he overheard the
discussion about the sale of the firearm which did not involve

accused 3. Mr Blouw’s evidence was: “Ek het die mannetjie
met die rooi top gesien en die een in die middel. Die derde
persoon
het ek nie gesien nie. ... Nommer 1 en 2”. The court
a quo
appears to have confused Accused No 1 with Accused No 3. In
cross-examination Mr Blouw conceded that he was not present on 21
April
2007 at the time of the sale of the firearm. Later in
cross-examination it is again put to him:
Q: “But therefore you were not
there on the 21
st
when the gun was purchased?
A: “Ja ek was nie teenwoordig op
die transaksie self nie.”
Q: “I am talking now about the
21st?”
A: “Ja die 21ste.”
(Vol 5 p. 409 lines 15 –
18).
Later Mr Blouw again says
he was present at Frankie’s on the 21
st
. Apart from
the confusion about the date, possibly a language problem as to the
distinction between the date of the 21
st
and the
witnessing of the transaction, Mr Blouw never says he saw Accused No
3, but Mr Blouw does confirm the sale of the firearm
on that day.
[20] The identity of
Accused No 3 as having taken part in the housebreaking, robbery and
attempted murder, is established by the
fact that Accused No 3 was
one of the persons who left the firearms and other goods robbed from
Ms Vermaak at the house of Mr and
Mrs Qoai, and he was one of the
persons who collected those items from the house of Mr and Mrs Qoai
the following morning. The
evidence of Mr Tau, read with the
supporting evidence of Mr Blouw and Mr and Mrs Qoai, establishes that
Accused No 3 was the person
who sold the Heckler and Koch pistol to
Mr Tau on 21 April 2007. The four assailants, among whom were the
three accused, took the
items robbed from Ms Vermaak to Mr Qoai’s
house within about an hour after the robbery. That evidence in itself
is sufficient
to establish the guilt of Accused No 3 on counts 5 and
6, because the rifles and pistols listed in counts 5 and 6 were part
of
the items taken from Ms Vermaak. The evidence on counts 5 and 6 is
further bolstered by the evidence of Mr Tau regarding the sale
of the
Heckler and Koch pistol by the three accused. The guilt of Accused No
3 on counts 3, 4, 5 and 6 has been established beyond
reasonable
doubt.
III
SENTENCE
[21] The personal
circumstances of the accused are set out as follows by Ms Ferreira,
for the State:
(1)
Accused no 1
He was 22 years old at
the time of the offence. He passed standard 7 at school. He is single
with no dependent minor children. He
was employed as a casual worker
at a brick factory at the time of his arrest earning R75 per week.
The bulk of the property was
recovered and in a way he helped the
police with the recovery of some of the items. He is a first
offender. At the time of sentence
he had been incarcerated for two
years, two months and one week since his arrest on 21 April 2007.
Accused no 2
He was 20 years old at
the time of the commission of the offences. He passed matric. He was
not gainfully employed at the time of
his arrest. The bulk of the
property stolen from the victim, Ms Vermaak, was recovered and in a
way he assisted the police to recover
some of it. He is a first
offender. Since his arrest on the 21
st
of April 2007 he
had been in custody for two years, two months and one week on the
date of sentencing (1 July 2009). He facilitated
further arrests.
Accused no 3
He was 25 years old at
the time when he committed the offences. He passed standard 6. He is
unmarried and the father of two dependent
minor children. He was
jobless at the time of his arrest. The bulk of the stolen property
was recovered and he assisted the police
in the recovery of some of
the items. Since his arrest on the 22
nd
of April 2007 he
had been in custody for two years, two months and six days at the
date of sentence. He unleashed no actual violence
on the victim.
[22] The offences were
serious. Counts 1 and 2, of which only accused no 2 was convicted,
were housebreaking, aggravated robbery
and murder. Counts 3 and 4, of
which accused no 1, 2 and 3 were all convicted, were housebreaking,
aggravated robbery and a very
serious attempted murder. In both cases
access to the homes was gained through a window that was broken. Both
victims were females
who were living alone. In both events the
victims were tied by their wrists and feet. In both cases the doors
of the homes were
broken from the inside in order to “break
out”. All means of communication were taken away from the
scenes or disabled.
[23] As to counts 1 and
2, the murder of Ms Claassens, her house was broken into; she was
tied up; she was assaulted; there were
patches of blood in the house.
She sustained a ruptured liver, a ruptured spleen and she suffered
internal bleeding. The doctor
who conducted the post mortem
examination gave the main cause of her death as smothering and
internal bleeding. The attack on her
was severe and she must have
suffered. The court
a quo
found the form of intent to have
been
dolus eventualis
. Serious injuries were inflicted on her,
and she was left for dead, if she was not dead by the time the
assailant or assailants
left. This leads to the irresistible
inference that Accused No 2 (and his co-perpetrators, if any)
intended to kill her with direct
intent. Only accused no 2 was
convicted of the robbery and murder of Ms Claassens. According to the
post mortem report, exhibit
“B”, she was 76 years of age.
She was 1,76 metres tall and weighed 76 kg. The State only produced
evidence to have
accused no 2 convicted on counts 1 and 2. However,
even if accused no 2 committed the housebreaking and robbery by
himself, there
was no need to seriously assault and kill the victim,
a frail old lady. The murder was callous and there was no need to
kill her
in order to facilitate the robbery.
[24] On the charges
relating to the housebreaking at Eva farm, (counts 3 and 4) where Ms
Vermaak was the victim, all three accused
were convicted. Ms Vermaak
testified that she was 53 years old. At the time of the incident she
was living alone on the farm. She
was unmarried. At 2 am on the
Tuesday morning after the Easter Weekend, that was 10 April 2007, the
barking of one of her small
dogs woke her up. She had left all the
lights on in the passage from her bedroom to the kitchen. She got up
with her pistol in
her hand and walked to the kitchen. She looked
through the safety gate to see why the dog was barking. When she saw
nothing, she
walked to the kitchen to go and fetch her diamond ring
she had taken off when she washed the dishes. In the kitchen she saw
a hole
had been cut into the window. She realised there was trouble.
When she turned, two men approached her from the one side of the
table and one from the other side. She had her pistol in her right
hand. She aimed at the attacker on her right. He grabbed her
hand
with both hands. The two on the left stormed her and hit and smacked
her. She tried to shield the blows with her left hand.
The one on the
left had a type of panga. The one on the right took the pistol from
her and hit her on the head with it, very hard,
many times. She tried
to fight while the blood was flowing. There were open wounds on her
head. They asked her where the man was
who looked after the cattle
and she said he was off-duty for the long weekend and would only
return at 7 am. The men assaulted
her and carried her to the bedroom,
asking where the money is. She gave them her handbag, which had R200
in it. They threw everything
out of the handbag on the bed. They
again hit her and fought with her and she thought it was her last
day. They tried to press
her onto the ground, but she kicked and
fought back. Then one of them stood on her head to hold her down.
They took the blankets
off the bed and threw them over her. They tied
her hands and feet with wire. It was very sore when they stood on her
head.
[25] Then they started to
throw everything out of the cupboards, saying they were looking for
money. At a stage when she was sitting
against the wall, one of the
men threw a little antique table at her and the table’s leg
broke off. She does not know what
hit her. The wounds on her head
were bleeding; her whole body was full of blood. That was at the
beginning. The attack on her lasted
about two hours. She was at some
stage hit with a panga, but had no sensation. They instructed her to
get up, but she slipped in
the blood.
[26] Ms Vermaak
identified one of the assailants as the leader. He gave instructions.
He was running the robbery. He was Accused
No 1.
[27] The three men were
all armed. One had a pistol; one a knife and the other a panga. The
person with the panga hit her in the
face with the flat side of the
panga on both sides of her head. She shielded the blows with her arms
and when she brought her hands
down, she saw two places where blood
spurt out of her wrist on the left wrist. She walked with difficulty,
because her ankles were
tied. The one with the panga hit her on the
back all the way to the cupboard where her jewellery was. At the
cupboard they took
everything. The man who had the panga told her
they were going to burn down the house. It is a thatched-roofed
house.
[28] One of the men
searched the house and found the safe. She told them where the key to
the safe was. At that stage she thought
they were going to shoot her
and she was very scared. She feigned fainting and fell down in the
passage. All three started kicking
her. She held her hands in front
of her face to shield the blows. They took the rifles and ammunition.
They also took her deceased
father’s three golden watches and
her golden watch.
[29] While she was lying
in the passage the man with the pistol came to her, cocked the
pistol, pointed it at her and asked her
if she tried to get away. He
spoke good Afrikaans. She heard that they went to fetch the small
truck and brought it to the front
door. She recognised the sound,
because the exhaust was defective. She then heard the truck depart,
stop at the bottom gate and
carry on. She was still lying in the
passage. Her hands were swollen, because of the wire. She managed to
get the wire off her
wrists by using her knee. She loosened her
ankles. She wanted to faint. She crawled to her bedroom. She got onto
the bed and knew
she had to wait until 7 am for help. The police
arrived just before 7 am. She did not contact anyone, because the
assailants had
taken her cell phone and cut the land line. When the
police arrived at the security gate, she was so confused that she
told them
to go away, they had already almost killed her. The police
had to break open the security door. She was clearly greatly
traumatised.
[30] The injuries of Ms
Vermaak are set out as follows in the judgment of the court
a quo
:
“
[64] She was
rushed to the Medi-Clinic in Welkom by an ambulance. She sustained
the following bodily injuries: laceration left wrist;
laceration
right little finger; two blunt wounds on the head; lacerations on
both ankles; fractured ribs on the left-hand side
of the chest;
contusions on the face and body. These are described in paragraph 5
section (c) of Exhibit L by Dr De Wet.
[65] She was hospitalised initially
for ten days. She underwent a surgical operation during that period
to repair the tendon of
her wrist. She was discharged but later
readmitted for approximately a week. Her treating doctor was Dr J J
De Wet, an orthopaedic
surgeon of Welkom. Her wrist, especially the
right wrist, continues to trouble her; the injuries have not yet
healed; her little
finger is obviously partially disabled; she
apparently requires another operation to repair the deformity. Her
injuries were inflicted
by the accused, in particularly the panga
man, accused 1 and the gunman who is not before the court in these
proceedings.”
And
“
[70] The
injuries of the victim were not fatal, but the head wounds / wounds
inflicted by means of a panga were severe judging by
the way she
bled. Luckily she did not sustain brain injury. I have no idea as to
how much blood she lost before the ambulance crew
arrived and gave
her treatment, however judging by the photographs it seems to me that
she had profuse bleeding. Since her limbs
were fastened with wire,
her landline telephone snapped and her cellular phone stolen and her
van also stolen, she could have bled
to death.
[71] In the light of the aforegoing, I
am satisfied that the victim was unlawfully attacked on Eva farm,
district Odendaalsrus on
Tuesday, 10 April 2007; that she was
violently assaulted; that she was, among others, struck with a panga
and a gun and that, objectively
speaking, one can say she almost bled
to death.”
[31] The power of a court
of appeal to increase sentence has a long history, set out in
S
v SONDAG AND ANOTHER
1994 (2) SACR 810
(C), where it is
pointed out that the court on appeal has a duty to society to ensure
that proper and adequate sentences are imposed
(820 b – e). The
sentences imposed by the court
a quo
do not reflect the
seriousness of the offences. As to count 2, the murder, the court
misdirected itself in stating that the minimum
sentence was 15 years
imprisonment, where it was in fact life imprisonment due to the fact
that the murder was coupled to armed
robbery. It is necessary to
interfere with the sentences.
Accused No 1
(Respondent in the Cross- Appeal)
[32] Accused No 1 was
only convicted in respect of the attack on Ms Vermaak and the
possession of firearms taken there. It did however
appear from the
evidence of Ms Vermaak that he was the ringleader. He was also the
person who did the dealings in hiding and selling
the firearms. Ms
Ferreira suggests the sentences in column 2 below. In my view the
sentences in column 3 are appropriate:
Accused
No 1
Sentences
Counts
Charge
Court
a quo
State
Appeal
Court
3
Housebreaking
and Robbery
10
years
13
years
13
years
4
Attempted
Murder
6
years
8
years
8
years
5
Possession
of Rifles
2
years
2
years
2
years
6
Possession
of Pistols
4
years
8
years
3
years
Effective
13
years
23
years
20
years
Accused No 2 (First
Appellant)
[33] Accused No 2 was
convicted in respect of two incidents, both involving housebreaking
at night and serious assaults on women
(one 76, the other 53 years
old), the one leading to death, the other to serious trauma. He was
sentenced to 12 years for the murder
and 4 years imprisonment for the
attempted murder. Taken together with the other convictions his
effective sentence is 16 years.
Further, as Ms Ferreira correctly
points out, the minimum sentence for the murder in count 2, coupled
to the armed robbery, was
life imprisonment, not 15 years as the
trial court held. There are no substantial and compelling
circumstances to impose a lesser
sentence. Ms Ferreira suggests the
sentences in column 2 below. In my view the sentences in column 3 are
appropriate:
Accused
No 2
Sentences
Counts
Charge
Court
a quo
State
Appeal
Court
1
Housebreaking
and Robbery
10
years
15
years
12 years
2
Murder
12
years
Life
Life
3
Housebreaking
and Robbery
10
years
13
years
13
years
4
Attempted
Murder
4
years
8
years
8
years
5
Possession
of Rifles
2
years
2
years
2
years
6
Possession
of Pistols
4
years
8
years
3
years
Effective
16
years
Life
Life
Accused No 3 (Second
Appellant - Ganyaza)
[34] Accused No 3 was
convicted on counts 3, 4, 5 and 6. Ms Ferreira suggests the sentences
in column 2 below. In my view the sentences
in column 3 are
appropriate:
Accused
No 3
Sentences
Counts
Charge
Court
a quo
State
Appeal
Court
3
Housebreaking
and Robbery
10
years
13
years
13
years
4
Attempted
Murder
4
years
8
years
8
years
5
Possession
of Rifles
2
years
2
years
2
years
6
Possession
of Pistols
4
years
8
years
3
years
Effective
12
years
23
years
20
years
ORDER
1. The appeal is
dismissed.
2. The cross-appeal
succeeds.
3. The sentences imposed
by the Court
a quo
are amended to read as follows:
3.1
Accused No 1
(Respondent in the Cross-Appeal, Xhego):
Count 3 - Housebreaking
and Robbery - 13 years’ imprisonment;
Count 4 - Attempted
Murder - 8 years’ imprisonment;
Count 5 - Possession of
Rifles - 2 years’ imprisonment;
Count 6 - Possession of
Pistols - 3 years’ imprisonment.
These sentences are to be
served in such a manner that the effective sentence is 20 years’
imprisonment.
3.2
Accused No 2
(First Appellant, Ntuli):
Count 1 - Housebreaking
and Robbery - 12 years’ imprisonment;
Count 2 - Murder –
Life imprisonment;
Count 3 - Housebreaking
and Robbery - 13 years’ imprisonment;
Count 4 - Attempted
Murder - 8 years’ imprisonment;
Count 5 - Possession of
Rifles - 2 years’ imprisonment;
Count 6 - Possession of
Pistols - 3 years’ imprisonment.
These sentences are to be
served in such a manner that the effective sentence is life
imprisonment.
3.3
Accused No 3
(Second Appellant - Ganyaza)
Count 3 - Housebreaking
and Robbery - 13 years’ imprisonment;
Count 4 - Attempted
Murder - 8 years’ imprisonment;
Count 5 - Possession of
Rifles - 2 years’ imprisonment;
Count 6 - Possession of
Pistols - 3 years’ imprisonment.
These sentences are to be
served in such a manner that the effective sentence is 20 years’
imprisonment.
3.4 The above sentences
are in terms of section 282 of Act 51 of 1977 deemed to have been
imposed on 1 July 2009.
____________
A. KRUGER, J
I
concur.
___________________
S. P. B. HANCKE, AJP
I
concur.
_______________
B.C.MOCUMIE, J
On
behalf of appellants: Adv. P.W. Nel
Instructed
by:
Legal
Aid
BLOEMFONTEIN
On
behalf of respondent: Adv. A.M. Ferreira
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp/wm