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[2012] ZAKZPHC 70
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S v Shange and Others (CC169/07) [2012] ZAKZPHC 70 (29 June 2012)
CC169/07-LJP/CD
35
SENTENCE
ON RESUMPTION ON 29 JUNE 2012
APPEARANCES AS BEFORE
SENTENCE
ON 29.06.2012
COMBRINK J
The twenty four accused have been convicted on one
count of murder; nine counts of attempted murder; three counts of
armed robbery
involving aggravating circumstances, within the meaning
of that phrase as contained in section 1 of the Criminal Procedure
Act;
one count of attempted armed robbery; four counts of motor
vehicle theft; and, in respect of 13 of the accused, who shall be
mentioned
later, a further four counts framed under the Firearms
Control Act relating to the prohibited possession of three automatic
assault
rifles and ammunition thereto. A relatively minor charge
relates to accused 14, who was convicted of negligently handling his
licensed
firearm.
I pause to mention that we have three languages that require at times
interpretation. I should appreciate it if you were to take
a seat, as
happened in the past, next or in the vicinity of accused 11, for
whose benefit you are interpreting into Portuguese.
The other two
languages, I should appreciate also if the interpreters were just
available in proximity of those accused. It appears
that all of them
understand Zulu to a large extent. Where they have any problems they
shall indicate to the relevant official interpreter
the need for
further explanation. Would you do that? Otherwise this sentence is
going to take until next week to deliver.
The facts and circumstances within the relevant offences were
committed have been fully canvassed in the judgment of the Full Court
and should be read in conjunction herewith. However, to provide
contextual perspective to the reasons for sentence currently being
dealt with, an epigrammatical summary of the salient facts only will
be furnished.
The accused were part of a larger group of criminals who, acting
in concert, collaboratively planned to rob two cash in transit
motor vehicles belonging to Fidelity Cash Management Services
(referred to hereafter as “Fidelity”), the purpose being
to rob those vehicles of the cash collected from Fidelity clients in
Northern Zululand and were being conveyed back for banking
purposes.
That occurred along the N2 national road in Northern Natal.
Pursuant thereto, and in execution of the common objective, the
accused, and a number of their accomplices, attacked the two cash
vehicles during the early evening of 2 October 2006. The attacks
occurred at two carefully selected locations along the N2 and
took
place simultaneously some 30 kilometres apart.
In the first instance the attack occurred at the vicinity of the
Charters Creek turn-off and involved a HiAce panel van with a
substantial amount of cash being conveyed in it. That became the
subject matter of count 9 in these proceedings. 30 kilometres
further
south along the N2 and at Penicuik an armoured Dyna truck carrying
cash was capsized and an attempt was made to rob it.
However, the
robbers could not gain access to the cash and departed thereafter.
That became the subject matter of count 6 in this
case.
In both these instances the attacks on the Fidelity vehicles were
meticulously planned and executed with military-like precision.
Each
attack lasted no longer than 20 minutes or so. The same
modus
operandi
were used at both scenes.
A 7 series BMW was used to forcibly collide into the Fidelity vehicle
at high speed causing such to lose control and to capsize
on the side
of the road. Thereafter the robbers, armed with automatic assault
rifles, descended upon the stricken vehicles firing
shots into the
air, it appears. That was not a direct attack upon the occupants of
the vehicle, but clearly designed
in terrorem
to subdue
the already disoriented crew.
However, at the Penicuik scene, where the attempted robbery occurred,
a high-powered rifle was used to fire into the bin of the
Dyna truck
in order to persuade the guard, who was inside it, to open the door
to the robbers. On the evidence that shot penetrated
the bin and
fragments of the bullet were recovered from within.
Contemporaneously other members of the gangs formed what has
colloquially been referred to as stopper groups. Those consisted of
armed groups who literally closed down for traffic the N2 immediately
north and immediately south of each scene of attack. Those
groups
literally stopped the public travelling on the N2 at gunpoint.
It appears, and I presume that is human nature, that the first group
of vehicles entering upon the scene were stopped at gunpoint.
The
remainder, however, stopped behind those that had come to a stop on
the N2 presuming that an accident had occurred further
on causing a
blockage in the road.
It appears from the evidence that the robbers were possessed of
detailed intelligence as to the movements and times and the nature
of
the vehicle carrying the cash in each instance. The knowledge of the
vehicles to be attacked is also manifest in the fact that
at each
scene the robbers carried with them implements suited to force open
the vehicles in order to gain access to the cash being
conveyed in
it. At Charter’s, where the panel van was the victim, the roof
was smashed open with the use of a heavy axe and
a hammer. Those
implements were left on the scene. In the case of the armoured Dyna
truck the hammer and axe were plainly unsuited
for the job and a
heavy motorised angle grinder, equipped with a specialised tungsten
disc, was used in order to try to open the
bin of the vehicle. It is
clear that those implements were available suited to each vehicle
encountered on the two different scenes.
The angle grinder was, later
that night, upon arrest, recovered from a taxi at the time being
driven by accused 24.
It appears from the evidence as a whole that these two intended
robberies were planned very carefully and long in advance, at least
a
month before the event. The robbery at Charter’s and the
attempted robbery at Penicuik served as the focal point for other
offences which occurred relating to it and in its vicinities. The
other charges which centred around those two locations were counts
1
and 4. Those counts deal with the theft of motor vehicles which were
stolen for the purpose used during the robbery by the robbers
and
subsequently discarded on and in the vicinity of the scenes of crime.
Counts 7 and 8 relate to the murder of the driver and
crew of the
Dyna truck. In the case of counts 10 and 11, these related to the
attempted murder of the crew of the HiAce, being
the driver and his
co-member.
In both the attempted murders directed at the crew of the respective
vehicles the offence of attempted murder is founded upon the
risk of
life to which the crew were put when the vehicle was forcibly
capsized. The requisite intent to murder manifests in the
form of
dolus eventualis
. In respect of Ncwane, the crew member in the
Dyna truck, who was ensconced in the bin thereof, a further act of
attempted murder
occurred when the shot was fired with the
high-powered rifle which penetrated the skin of the bin and entered
into the area where
Ncwane found himself. Whilst, strictly analysed,
it might be said that those actions would have given rise to two
attempts on the
life of Ncwane, however, in the circumstances, and
properly, we believe only a single charge of attempted murder was
lodged against
the accused.
Counts 12, 13 and 14 relate to the attempted murder of three
policemen who chanced upon the scene at Charter’s in a marked
police vehicle engaged in ordinary patrol. The driver, one Biyela, of
the police vehicle believed that they had joined a queue
of vehicles
awaiting the clearing up of an accident that must have occurred
further along the N2. However, the moment they arrived
at the scene a
vehicle pulled up immediately behind it blocking it in behind a
Clover dairy truck. The occupants of the vehicle
blocking the police
vehicle in erupted from the vehicle and came up to the police vehicle
and, at point-blank range, opened fire
upon them with automatic
firearms. That vehicle was literally shot to pieces. The groupings of
the bullet holes in the vehicle
were at a level and in positions
which indicate, without any doubt, that the intention was to attack
the policemen in it directly
with intent to kill.
Count 21 relates to the murder of a security guard in the employ
Maxim Security, one Gumede, at Penicuik. It appears that immediately
after the abortive robbery of the Dyna truck was over, and whilst the
vehicles used in the robbery were being dumped in a nearby
plantation, Gumede and two of his security guard companions in a
bakkie chanced upon the robbers as they left the vehicles. In
that
instance too the robbers, without hesitation or warning, immediately
opened fire with automatic rifles upon the occupants
of the security
vehicle. Again that vehicle was shot to ribbons.
The deceased died and his two companions escaped. As in the case of
the three policemen at Charter’s, the two remaining security
guards at Penicuik were very fortunate to escape with their lives.
Their survival was not due to any grace extended by the robbers
firing at them. The attempts on the lives of the two security guards
who accompanied the deceased became the subject matter of
counts 22
and 23.
Count 15 relates to the armed robbery of a certain Msweli of his
motor vehicle ignition keys. He was another member of the travelling
public who was stopped by members of a stopper group, a firearm was
put into his face and his keys forcibly removed from the vehicle.
Count 18 relates to the armed robbery of one Masangu of his motor
vehicle in circumstances colloquially described as hi-jacking.
This
took place at gunpoint.
Counts 17 to 29 inclusive relate to the prohibited and unlawful
possession of three automatic assault rifles.
INTERPRETER
Count 17 inclusive, M'Lord?
COMBRINK
No, count 27 to 29 both inclusive, in other words,
27, 28 and 29. Count 30 relates to the unlawful possession of the
ammunition
to the assault rifles. Count 31, this charge is preferred
against accused 14 only and relates to his negligent handling of his
licensed pistol.
The imposition of sentence is usually the domain of the trial Judge.
After all, he presided over the trial and during the course
thereof
became acquainted with every conceivable fact and nuance relevant to
the commission of the offences and the nature thereof.
Accordingly
the trial Judge is best placed to decide what an appropriate sentence
would be in respect of each offence. However,
in the instance the
murder and three armed robberies mentioned fall within the purview of
section 51(1) of the Criminal Law Amendment
Act, Act 195 of 1997.
This measure prescribes that the Courts shall, in the case of murder,
answering to certain requisites, and
the robberies in question here,
shall be visited with certain prescribed minimum sentences.
Relevant to these proceedings section 51(1) provides that,
notwithstanding any other law, the Court shall, if it has convicted
a
person of the offence of murder, sentence such person to prison for
life where the murder was planned or premeditated or where
the death
of the victim was caused in committing or attempting to commit or
after having committed or attempting to commit robbery
with
aggravating circumstances as defined in section 1 of the Criminal
Procedure Act or where the murder was committed by a person,
a group
of persons or syndicate acting in execution of a common purpose or a
conspiracy. Similarly, and in terms of section 51(2)
of the Criminal
Law Amendment Act, where a Court convicts a person robbery involving
aggravating circumstances or involving the
taking of a motor vehicle,
hijacking, in other words, it shall impose a sentence of no less than
15 years in the case of a first
offender, 20 years in respect of a
second offender and 25 in respect of a third or further offender.
The convictions under count 21 in respect of the murder of security
guard Gumede and counts 9, 15 and 18 in respect of the robbery
with
aggravating circumstances, the facts fall squarely within the
provisions of section 51(1) and (2) of the Criminal Law Amendment
Act. As a consequence those convictions are visited, in the case of
the murder, with imprisonment for life, and, in the case of
the
robberies in question, a minimum of 15 years’ imprisonment.
At this point I should indicate that for the purposes of sentencing I
have decided to treat all the accused as first offenders.
The only way in which this stark result can be avoided is if I were
to find present, in the circumstances of each case, substantial
and
compelling circumstances which would justify the imposition of a
lesser sentence than that prescribed in each instance. That
relaxation is provided for in sub section (3) of section 51.
That provides that if a Court is satisfied that substantial and
compelling circumstances exist which would justify the imposition of
a lesser sentence than the prescribed sentence whereupon the
Court
shall enter those circumstances on the record and proceed to impose a
discretionary sentence.
When this legislation first entered upon our statute books serious
doubt existed as to its constitutionality. That doubt was premised
upon the concept that the measures place a serious fetter upon the
discretion of the Court, which is normally untrammelled, as
to the
exercise of its power to impose a sentence which it decides is
suitable, bearing in mind that when it comes to sentencing
the power
to punish is peculiar to the trial Court, more so, considering that
an independent judiciary is one of the weight-bearing
pillars of our
Constitution.
However, in a number of cases, including
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) the Constitutional Court, per ACKERMANN J,
held that section 51(1) of the relevant Act was not
ultra
vires
the Constitution. The rationale of that conclusion is
persuasive and is founded upon the following. The separation of
functions
between the judicial, legislative and executory powers was
not absolute and that the legislature had as much an interest in a
proper
sentence being imposed by the Courts in certain cases as the
Courts itself will have. The result is that this legislation settled
the benchmarks, as far as sentencing goes, in the case relevant to
the instance of the murder of Gumede and the three robberies
in
question. Those counts fall squarely within the province of section
51(1) and 51(2).
Applied to the instance I am obliged by law to impose life
imprisonment upon the accused in respect of the murder of the
security
guard Gumede and in the case of the three robberies
involving aggravating circumstances a minimum of 15 years’
imprisonment
for each. The only way in which that result can be
averted is if I were to find present, in the circumstances relating
to each
of the offences in question, substantial and compelling
circumstances are apparent would justify a lesser sentence by the
Court.
That is the question I shall next turn to.
The Act in question is silent as to what circumstances would
constitute substantial and compelling reasons not to impose the
prescribed
sentences. At the beginning that led to some uncertainty
as to the approach a Court should take to the question of substantial
and compelling circumstances and a number of tests were mooted by
various Courts to find a way in which such circumstances could
readily be isolated and noted. That uncertainty was laid to rest by
the decision of the Supreme Court of Appeal in a seminal judgment
reported in
S v Malgas
2001 (1) SACR 469
(SCA). In that
decision it was pointed out that section 51 of the Criminal Law
Amendment Act emphasised the public’s need
for effective penal
sanctions against the escalation and prevalence of serious crimes
singled out in that measure, including murder
and robbery involving
aggravating circumstances.
In considering whether substantial and compelling circumstances exist
in the facts before it the Court must keep in mind that the
sentence
prescribed by section 51 must be regarded as ordinarily and
objectively appropriate. Differently expressed, the Court
must regard
the prescribed sentences as the norm for punishment applicable in
respect of the relevant crimes. It was stressed that
the Court should
guard against allowing its personal distaste for such legislative
generalisation to justify an indulgent approach
to the
characterisation of circumstances as substantial and compelling. It
was as if the Judge who delivered that judgment had
me in mind as I
have, before now, expressed my distaste for the what I consider
invasive legislation when it comes to the trial
Court’s
prerogative to impose sentence. However, that is the law and I am
bound by it.
Turning to the question of the existence of substantial and
compelling circumstances in the instance. More often than not
substantial
and compelling circumstances are immediately evident in
the facts surrounding the commission of an offence.
A striking example thereof is to be found in this case. I refer in
particular to the conviction of robbery involving aggravating
circumstances of Msweli of his motor vehicle transmission keys at
gunpoint. That is the subject matter of count 15. As mentioned,
Msweli was travelling along the N2 when he was stopped by members of
a stopper group at the scene of crime at Penicuik where the
Dyna was
in the process of being robbed. A gun was put to his head and his
motor keys were forcibly removed from his possession
and taken.
When one asks oneself what an appropriate punishment would be for
that robbery it is immediately apparent that the prescribed norm
of
15 years would be glaringly inappropriate, due regard being had
for the moral blameworthiness of his assailant or the
reprehensibility of that conduct. It differs, for example, so
dramatically in fact from the facts and circumstances surrounding
the
cash in transit robbery of the HiAce at Charters Creek. Whilst the
conduct of his assailant was reprehensible, it certainly
does not
deserve punishment of 15 years’ imprisonment.
By comparison to Msweli’s robbery, the cash in transit robbery
at Charter’s and the hijacking of Masangu’s vehicle
at
Penicuik, and also the murder of the security guard at Penicuik, do
not, on the face of it, admit of substantial and compelling
circumstances. Yet I have also found, in my experience over the
years, that substantial and compelling reasons may exist in the
facts
of such cases also, you just have to find them, but you cannot find
what there is not. Accordingly a careful and detailed
analysis of the
facts in question, relevant to the question of substantial and
compelling circumstances, is required.
The approach to be taken by the Courts in such cases, in considering
whether such circumstances are present, although not immediately
evident, is meticulously outlined by the Honourable Mr Justice Marais
in
Malgas
in paragraph 25 of that report. There MARAIS JA
suggested the following:
Section 51 has limited but not eliminated the Court’s
discretion in imposing sentence in respect of the sentences to Part
1 in Schedule 2 or the imprisonment of other specified offences
listed in other parts of Schedule 2.
Courts are to approach the imposition of sentence conscious that the
legislature has ordained life imprisonment or particular
period of
imprisonment as the sentence that should ordinarily and in the
absence of weighty justification be imposed for the
listed crimes in
the specified circumstances.
Unless there are and can be seen to be truly convincing reasons for
a different response the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
Courts.
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the
offender,
undue sympathy, aversion to imprisonment for first offenders,
personal doubts as to the efficacy of the policy underlying
the
legislation and marginal differences in personal circumstances or
degrees of participation between the co-offenders are to
be
excluded.
The legislature has deliberately left it to the Courts to decide
whether the circumstances of any particular case call for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and the
need
for effective sanctions against it, this does not mean that all
considerations are to be ignored.
All factors, other than those set out in D above, traditionally
taken into account in sentencing, whether or not they diminish
moral
guilt, thus continue to play a role; none is excluded at the outset
from consideration in the sentencing process.
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (substantial
and
compelling) and must be such as cumulatively justify a departure
from the standardised response to that the legislature has
ordained.
In applying the statutory provisions it is inappropriately
constricting to use the concepts developed in dealing with the
appeals
against sentence as the sole criterion.
If the sentencing Court is, on considering of the circumstances of a
particular case, satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society so that an injustice
would be done
by imposing the sentence it is entitled to impose a lesser sentence.
In so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment
and that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the benchmark
which the legislature
has provided.”
So much for the quotation involved.
Without doing injustice to the care and meticulous detail outlined in
the approach to be taken by MARAIS JA, the following exercise
I
believe best accommodates the essence of that approach. Recognising
the benchmarks for the sentences prescribed by section 51
of the
Criminal Law Amendment Act have been set in respect of the offences
relevant here, I should determine what an appropriate
punishment
would be if I were to apply the settled legal principles usually
applied by the Courts to determine sentence unfettered
by statutory
prescripts. I should then compare that notional sentence with the
sentence prescribed by section 51. If the comparison
reveals that a
discrepancy between the two sentences exists indicating that it would
be unjust to impose the prescribed punishment
then substantial and
compelling circumstances will reside in that fact. That would free my
hands to impose a sentence which I consider
just.
The Court will take the short adjournment.
COURT ADJOURNED
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - -
ON RESUMPTION
SENTENCE
(continued)
COMBRINK J
I have dealt with the legal precepts that apply in
respect of the compulsory sentences. I now have to indicate why the
provisions
of section 51(1) of the Criminal Law Amendment Act apply
to the conviction of murder and why section 51(2) of that Act applies
to the three counts of robbery involving aggravating circumstances.
The schedule to section 51(1) in the case of murder specify four
grounds upon which the sentence of life imprisonment is attracted
by
that offence. Those facts are referred to as the jurisdictional facts
which bring the provision into play. In the instance the
death of the
victim Gumede was caused by the accused having attempted to commit
robbery involving aggravating circumstances of
the cash in transit
vehicle, the Dyna truck, at Penicuik. The second fact is that the
offence was committed by a group of persons
or syndicate in the
exercise or furtherance of a common purpose. And finally that the
murder was pre-planned in the sense that
the trial Court held that it
was foreseen that a situation might arise during the robberies which
would necessitate, in the view
of the attackers, that the firearms
might be used to deadly effect. Whilst recognising that as a
possibility the accused and their
accomplices continued, in reckless
disregard of the eventuation of that possibility, with their plans to
rob. Given the circumstances
in which Gumede was murdered such
possibility did in fact eventuate. The requisite intent for the
murder is identified as
dolus eventualis
.
Accordingly, three of the four factors mentioned in the schedule to
section 51(1) of the Act results in the prescribed sentence
of
imprisonment for life. As a consequence I am enjoined by law to send
the accused to prison for life, unless, of course, I am
able to find
that substantial and compelling reasons exist not to do so in terms
of the relief clause contained in section 51(3)
of the Act.
Turning to the three armed robberies in question involving the cash
in transit robbery at Charter’s, the robbery of the car
keys in
respect of Msweli and the robbery or hijacking of the vehicle in
respect of Masangu at Penicuik. In that case the jurisdictional
facts
are to be found in the aggravating circumstances in which the robbery
at Charter’s occurred as well as the robbery
of Msweli’s
keys at Penicuik and finally the robbery of Masangu’s vehicle
at gunpoint. Both those matters have been
specified as resulting in
the attraction of the minimum of 15 years in respect of first
offenders, as I have found the accused
are.
Returning to the approach that I outlined above relating to the
possible existence of substantial and compelling circumstances
in
respect of the murder and the robberies in question, I proceed as a
first step to determine what the appropriate sentence would
have
been, but for the provisions of section 51 of the Act, that I would
have imposed as adequate in the circumstances for the
murder and the
robberies in question.
In order that a sentence be a just one the Court usually takes into
account three principles which it has to balance the one against
the
other and weighed jointly. What is required is that the
reprehensibility of the crime, the personal circumstances of the
accused
and the interest of the people of this country which they
have in an effective penal system. These three considerations are
also
referred to as the triad of considerations usually applicable in
the determination of sentence.
I proceed with the first of those considerations. The nature of the
offences and the moral blameworthiness of the accused in committing
them cannot be determined in isolation. Accordingly one cannot look
at the circumstances in which Gumede died or the circumstances
in
which each robbery in question occurred. The offences in question
should be viewed in context with all the offences of which
the
accused have been convicted in these proceedings and the conduct of
the accused constituting such offences.
Relevant to the nature of the offences in question the following
needs to be stressed again. As already mentioned, the attacks
on the
two cash in transit vehicles on the N2 were planned well in advance
and were carried out with chilling efficiency by a small
army of
criminals armed to the teeth with a variety of armaments. The use of
the firearms were clearly designed to overcome any
resistance which
stood between them and the cash which was their common aim. The
attacks were brazen and took place on the N2,
one of the busiest
national roads in this province, with full appreciation of the risk
to property and life. Any traveller who
came upon the scenes of crime
at the time was held up at gunpoint and where risk of capture was
perceived summarily fired upon
with deadly intent.
An example of the latter intent is to be found in the death of the
deceased and the attempts made upon the lives of the two security
guard companions of the deceased. So too the three policemen on
patrol who chanced upon the scene of the robbery at Charter’s.
The automatic rifle fire directed at those two vehicles was not aimed
at scaring, but to kill the occupants. Gumede was not killed
by
accident, but deliberately shot to death because the security guards
were perceived to pose a threat to the robbers at the time.
In the
evidence placed before us it was disclosed that in reality there was
no threat to the attackers, but the deceased still
died in a hail of
bullets. The bakkie in which the deceased and his companions were
travelling were literally riddled with bullet
holes.
The same happened to the police vehicle at Charter’s. There too
it appears that the robbers perceived the police vehicle’s
presence and the police in it as a threat to them. That the policemen
were directly fired upon is evidenced by the bullet holes
in the
vehicle itself. They were all centred at a height and in the area
where the policemen were seated. In fact, Biyela, the
constable who
was the driver of the vehicle at the time, found two bullet holes in
the seat which he had sat against moments before.
The attack on the police vehicle and the security vehicle stands in
sharp contrast to the stopping by the robbers of Msweli. He
manifestly posed no threat and was not fired upon at all. So too in
the case of Masangu when his motor vehicle was taken at gunpoint.
He
posed no threat and no violence was offered to him, at least by a
firearm. He was simply taken out of the vehicle and shots
were fired
to scare him off, which occurred. As he fled the scene he believed
that he was being fired upon, but the evidence made
it plain that he
was not, those shots were there simply
in terrorem
.
It seems to me that the reprehensibility of these offences and the
moral blameworthiness of the accused who perpetrated them stands
unabated. As mentioned, in weighing up a proper sentence those facts
have to be taken into account.
I turn to the personal circumstances of the accused. This
consideration is no less important than the other elements which
determine
an appropriate punishment. In weighing up the personal
circumstances of the accused one should be on the lookout for
indications
of possible causes which could have moved the individuals
to turn to such calculated and violent crimes as those under
consideration
here. Also, in examination of the personal
circumstances of the accused, one looks for indications of contrition
or remorse which
might impact upon the rehabilitability of the person
to be sentenced. Reform is one of the aims of a proper sentence.
Some of the accused testified and placed their personal circumstances
before the Court whilst others remained silent. In the case
of
accused 13 his personal circumstances were placed before the Court by
agreement. Those who testified revealed nothing of particular
note,
but to a man showed that they had been gainfully employed or
conducted successful private business enterprises before the
offences
were committed. They all testified to the fact that their income was
devoted to maintaining their families and extended
families and that
a long term of imprisonment would compromise those obligations.
Notwithstanding the silence of the accused who
did not testify, I
accept in their favour that they too were self-reliant and
economically active with support obligations.
The evidence did not reveal that their circumstances forced the
accused into committing these offences. What became manifest in
the
evidence of the accused who testified and the conduct of those who
remained silent is that nowhere is a modicum of remorse
shown. In
fact, each of the accused who testified specifically stated that they
do not have remorse because each one maintained
that he is and
remains innocent.
In any event, remorse is usually visible by conduct rather than
words. Nothing in the conduct of the accused after their arrest
to
today manifests by conduct any remorse. In fact, some of the
testimony that the State placed before me during the sentence
proceedings reveals the opposite. Notwithstanding that the accused
were all furnished with sufficient means and time during the
court
proceedings at court to make use of cell phones provided for
that purpose to communicate with family, friends or associates,
yet
on their persons, and, despite warnings not to bring in cell-phones
into the cells, on the persons of some of the accused cell-phones
were found. They were informed right from the outset that cell-phones
were not permitted into the cells. Over the period of their
incarceration 53 cell-phones were recovered which had been unlawfully
obtained and used in the cells. The smuggling in of cell-phones
into
the cells of necessity required that some corrupt policeman or warder
assist in obtaining the cell-phones in the cells. That
conduct, it
seems to me, is conduct which manifests a continued disregard for
legal principles.
The evidence showed that in the case of some of the accused
communications through unlawfully held cell-phones were made with a
State witness, who, shortly after the cell-phonic contact had been
made, refused to testify. In another instance some of the accused,
through the use of unlawfully possessed cell-phones, made contact
with one of the official court interpreters on a number of occasions
which resulted in that interpreter being taken off the trial.
I do not single out those accused aforementioned as I am of the view
that the moral blameworthiness of the accused in the commission
of
the offences of which they had been convicted in this case is uniform
and no differentiation in sentences to follow should be
made between
them. Counsel for the State and the accused are in agreement with
this, namely that no distinction ought to be drawn
between any of the
accused as individuals.
A fair assessment of the accused as individuals appears to indicate
that they were not indigent and that they took part in the
crimes out
of need. In fact, it was out of greed. Greed is the basest of
motives. What is particularly disquieting is that the
accused had
ganged together in a meticulously planned and ruthlessly executed
criminal enterprise resulting in a multiplicity of
offences of which
they have been convicted during the course of this trial. In the
final analysis very little weight, it seems
to me, can be attached to
the individual personal circumstances of the accused. Those are
outweighed by the nature of the offence
and the interest which
society have in a proper penal system.
That brings me to interests which the community have in the proper
and effective administration of our penal justice system. Judges
are
not employed by the Government, but by the people of this country,
and, as such, are the custodians of the civilised norms
and values
which apply in an ordered and peaceful society. In a country beset by
a scourge of violent and organised crimes, which
appears to be
increasing exponentially, the people look to the Courts to suitably
punish criminals whose crimes corrupt, disrupt
and sunder the
community in which we live. If the Courts were to fail in that regard
the people will increasingly take the law
into their hands, which in
turn would bring us to the brink of anarchy.
Statistics placed before me show that the murder of Gumede on
2 October 2006 was one of 5 000 murders that occurred during
2006 in the province of KwaZulu-Natal. The three robberies involving
aggravating circumstances relevant to these sentence proceedings
were
among the 26 206 such offences which occurred in this province
during the same time. The nine attempted murders, which
are under
sentence in these proceedings, are a fraction of 5 245 such offences
during the same period in this province. With regard
to the four
counts of motor vehicle theft, it should be borne in mind that during
that period, 2006, 37 motor vehicles were stolen
every day in this
province. During the year 2006 14 079 motor vehicles were stolen in
this province. We are far removed from a
peaceful and crime free
community.
When the heinousness and the reprehensibility of the offences of
which the accused have been convicted in this case is considered
in
conjunction with the personal circumstances of the accused and the
interests of the community I am driven to the conclusion
that the
sentence I would have imposed, but for the provisions of section 51,
in respect of the murder and the robberies in question
would have not
been so disparate from the prescribed sentence that to impose the
latter would constitute an injustice to the accused.
In the result I am unable to find that substantial and compelling
circumstances exist which would entitle me to impose a sentence
other
than that prescribed in section 51(1) of the Criminal Law Amendment
Act. As a consequence I hold that the compulsory sentence
for the
murder of Gumede, count 1, as prescribed by section 51(1) applies.
In the case of the robberies involving aggravating circumstances
relating to Msweli at Penicuik, Masangu at Penicuik and the cash
in
transit robbery at Charter’s I wish to deal in the first place
with the robbery involving the ignition keys of Msweli.
As mentioned earlier, the presence of substantial and compelling
circumstances as contemplated by sub-section (3) of section 51
of the
Criminal Law Amendment Act are immediately apparent. The actions of
the accused, whoever they might be that were involved,
was to put a
gun to his head, Msweli’s head, and force him to submit whilst
his motor vehicle keys were removed. Technically
that is robbery
involving aggravating circumstances. However, the moral
reprehensibility of that conduct is not even remotely comparable
to
the moral reprehensibility that is associated with the other two
robberies. The only aggravating factor in that robbery is the
fact
that Msweli was a member of the public exercising his right to free
travel on the N2 when he was stopped at gunpoint and his
keys
removed. However, that conduct falls far short from what I believe
the legislature had in mind in enacting section 51(2) of
that Act.
Accordingly my hands are free to impose a sentence which is just in
law.
In deciding whether substantial and compelling circumstances exist
not to impose the minimum sentences in respect of the cash in
transit
robbery at Charter’s, count 9, and the robbery of Masangu’s
motor vehicle at Penicuik, count 18, both involving
aggravating
circumstances, the same considerations apply as applied in the case
of the murder of Gumede. When a balance is struck
between the
reprehensibility of the conduct in those robberies, the personal
circumstances of the accused and the interests of
society I am of the
view that I would not be able to impose a sentence which is so
markedly different from the one prescribed by
law that it would
entitle me to find substantial and compelling reasons not to allow
the law to take its course.
What remains is to determine the punishment to be imposed in respect
of the convictions for the offences of attempted murder, the
attempted robbery involving aggravating circumstances of the Dyna
truck at Penicuik, the robbery of Msweli’s ignition keys,
the
theft of the motor vehicles and the unlawful and prohibited
possession of the automatic rifles and ammunition thereto, and
finally also the sentence to be imposed upon accused 14 with regard
to the negligent way in which he had handled his licensed firearm.
That will take some time individually and I understand that the
accused might need some time to talk to their families and I require
an opportunity to take a break also, so I shall take another short
adjournment, the period can be discussed with counsel in chambers.
The Court will rise.
COURT ADJOURNED
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - -
ON RESUMPTION
SENTENCE
(continued)
COMBRINK J
I have thus far referred briefly to the
optus
reus
that constituted some of the offences. What remains is to
refer to the actions which constituted the offences in respect of the
remaining counts.
I have referred to count 6, that is the attempted robbery with
aggravating circumstances of the Dyna truck at Penicuik. As mentioned
earlier, that was one of the scenes around which certain of the other
related offences centred. As far as that is concerned it
will be
recalled that that attack was one of the two that occurred on the N2.
What needs to be highlighted is the way in which
it developed.
The Dyna truck was a comparatively massive vehicle. The 7 Series BMW
that was used to disenable it had to do so at great speed
and the
impact resulting, which caused the Dyna to spin across the road and
capsize, was a tremendous one. The BMW was damaged
to such an extent
that it was undriveable thereafter and was jettisoned by the robbers
where it came to rest after the collision.
I described the risk which the collision entailed to the occupants of
the Dyna. In addition, when the Dyna came to rest attempts
were made
by the armed men at the vehicle to get the driver and the crew at the
back to open the vehicle for them. They refused
believing that they
were safe behind the ...[indistinct]... and the reinforced front
window. According to Thring, the driver, a
shot was fired which
struck the door of the cab in which he was. The photographic evidence
revealed a blemish on the door which
indicates that the bullet could
not and did not penetrate the skin. The rifle used on the bin, as
mentioned earlier, was of such
a high calibre that it did penetrate
the armed wall of the bin.
When the crew refused to open the vehicle the attackers set about
trying to cut it open, grind it open, by using the self-generated
angle grinder. The photographic evidence in that regard also revealed
the scars on the vehicle and gouges resulting from the use
of the
grinder. That forced the attackers to abandon their efforts and flee
the scene. As there were apparently not enough getaway
vehicles
available the hijacking of Masangu’s vehicle was necessitated.
The attack upon that vehicle failed not through any
fault of the
accused, but simply because the reinforced bodywork of the Dyna did
not allow access.
At this point I should mention the four counts of motor vehicle theft
of which the accused have been convicted. Those vehicles
were
manifestly stolen with a view to using and abandoning them during and
after the robbery. The BMW that had been used to disenable
the HiAce
at Charters Creek was abandoned there and forms the subject matter of
count 2. The Avis car referred to in count 1 was
used to block in the
police vehicle which arrived on the scene. That is where the
occupants were fired upon gratuitously. In that
exchange of gunfire
between Constable Biyela and the assailants accused 25 was shot and
injured. That vehicle was abandoned right
there and when the police
arrived on the scene it was still idling. At Penicuik the two
vehicles which form the subject matter
of counts 3 and 4 were
abandoned after they had been used during the robbery.
I have referred to the prevalence of motor vehicle theft earlier in
these reasons. The theft of a motor vehicle causes grave
inconvenience,
prejudice and financial loss to the owner thereof. In
the case where the purchase of the motor vehicle was financed, and
that is
often the case, the monthly payments due by the purchaser
still have to continue notwithstanding that the vehicle was no longer
in his possession due to the theft. The sheer volume of such thefts
have caused the Courts to impose stringent sentences which
were
designed to keep this type of offence at bay. The statistics that I
mentioned earlier relating to motor vehicle thefts make
for poor
reading. In the result I shall impose the sentence that I find is
usually imposed in such offences by the Courts in recent
years.
That brings me to the crimes charged to the accused under counts 27,
28, 29 and 30. In respect of those counts accused 2,
3, 4, 6, 9, 11,
13, 15, 17, 18, 21, 23 and 24 were convicted. These accused were all
in the vehicle driven by accused 24 on arrest.
In it were recovered
the three automatic assault rifles which, at the time, was in a black
bag, together with ammunition thereto
in it, it was fully loaded and
ready for use and spare magazines for the automatic rifles were also
found in the bag. The circumstances
in which they were possessed at
the time of its recovery suggests, and so it was found, that they
were there ready for use should
such an eventuality arise. The
premise upon which the trial Court convicted all the accused of
possession of those firearms was
by virtue of the doctrine of common
purpose.
That brings me to the final count, 31, relating to the negligent
handling by accused 14 of his licensed pistol. Although that offence
is frowned upon by the Courts, it is considered, from a moral
reprehensive aspect, relatively negligible, and the sentence will
reflect that.
Against that background I impose the following sentences. Will the
accused rise?
In respect of the theft of motor vehicles charged in counts 1, 2, 3
and 4 the accused are all sentenced to
SEVEN (7) YEARS’
IMPRISONMENT
in respect of each count.
In respect of count 6, the attempted robbery involving aggravating
circumstances at Penicuik, I indicated I would have sentenced
the
accused to 15 years, but with due regard being had of the time spent
awaiting finality in this trial I shall impose a sentence
of
TEN
(10) YEARS’ IMPRISONMENT
upon all the accused in respect of
that count.
In respect of count 7, the attempted murder of crewman Ncwane at
Penicuik, I sentence all the accused to
SEVEN (7) YEARS’
IMPRISONMENT
. Compared to the attempts on the lives of the other
crewmen there is an element of aggravation in respect of Ncwane in
the sense
that he was placed at serious risk by firing a shot into
the bin of the vehicle.
Count 8, relating to the attempted murder of Thring, the driver of
the Dyna truck at Penicuik, all the accused are sentenced to
FIVE
(5) YEARS’ IMPRISONMENT
.
In respect of count 9, the robbery involving aggravating
circumstances of the HiAce at Charter’s, I sentence all the
accused
in terms of section 51 of the Criminal Law Amendment Act to
FIFTEEN (15) YEARS’ IMPRISONMENT
.
In respect of counts 10 and 11, the attempted murder of respectively
...[indistinct]... and Mnguni, all of the accused are sentenced
to
FIVE (5) YEARS’ IMPRISONMENT
on each count.
In respect of counts 12, 13 and 14 relating to the attempted murder
of Biyela, Khoza and Mthethwa, the policemen on duty at Charters
Creek, the sentence in respect of all the accused is
TEN (10)
YEARS
on each count. In respect of these three mentioned offences
I consider it an aggravating feature that these were policemen on
duty
upon whose lives the attempt had been made.
On count 15, in respect of the robbery involving aggravating
circumstances of Msweli at Penicuik, all the accused are sentenced
to
TWO (2) YEARS’ IMPRISONMENT
.
In respect of count 18, the robbery involving aggravating
circumstances, in other words, the hijacking of Masangu’s
vehicle
at Penicuik, all the accused are sentenced to
FIFTEEN (15)
YEARS’ IMPRISONMENT
, being the minimum sentence permissible
in law.
In respect of count 21, the murder of Gumede, all the accused are
sentenced to
IMPRISONMENT FOR LIFE
, being the only sentence
option available under the Act.
In respect of counts 22 and 23, the attempted murder of respectively
Nkabinde and Ntombela, the security guards, all the accused
are
sentenced to
EIGHT (8) YEARS’ IMPRISONMENT ON EACH COUNT
.
In respect of counts 27, 28, 29 and 30 relating to the prohibited
possession of the automatic assault rifles and ammunition thereto,
those counts are taken as one for purposes of sentence. In that case
accused 2, 3, 4, 6, 9, 11, 13, 15, 17, 18, 21, 22 and 23 are
sentenced to
FIFTEEN (15) YEARS’ IMPRISONMENT
.
In respect of count 31 relating to accused 14 only, he is sentenced
to
THREE (3) MONTHS’ IMPRISONMENT
.
Because the accused had been in prison for approximately six years, a
substantial portion thereof in difficult circumstances at
Kokstad
awaiting the conclusion of this trial, I have factored that into the
sentences I have imposed and, because of it, in addition,
I do not
make any order stopping the accused from applying for, in due course
and in accordance with the requisite provisions,
for parole.
In conclusion, I do not deal with concurrency because that is dealt
with
ex lege
, that is concurrency of the running of
sentences.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - -
COMBRINK J
Will the accused be seated? Counsel had mentioned,
I think it was the day before yesterday, that you have instructions
to apply
for leave to appeal.
MR MAREE
Yes, that is correct, M'Lord.
COMBRINK J
I am aware that the Legal Aid Board has placed
certain impediments in your way. I undertook to get in touch with
the appropriate
person at the head office of that establishment and
left messages, but my calls were not returned. Where do you wish to
proceed
from there bearing that in mind?
MR MAREE
M’Lord, may it please you, I appear on behalf
of accused 2, 3, 8, 14 and 25.
COMBRINK J
Will you just give me a moment?
MR MAREE
Yes, M'Lord.
COMBRINK J
Yes, repeat the accused again.
MR MAREE
Nos 2, 3, 8, 14 and 25. M’Lord, I crave leave
to enrol two applications, the first is an application for leave to
appeal
against both convictions and sentences on behalf of these
accused, such application to be adjourned for the filing of grounds
of appeal to a date to be arranged. And secondly, M'Lord,
applications on behalf of these accused to be admitted to bail
pending
the outcome of the application for leave to appeal. It is
indeed correct, as Your Lordship pointed out, M'Lord, that there is
an impasse with the Legal Aid Board and I am afraid that if that
cannot be solved then this would be the end of my function in
this
matter, unless the accused who I represent see fit to instruct me
properly through an attorney. As Your Lordship pleases.
COMBRINK J
Mr Fraser.
MR FRASER
M’Lord, I appear on behalf of accused 9, 18,
21 and 23. M’Lord, as far as No 9 is concerned, I am unable to
bring
an application because I cannot get proper instructions from
accused 9.
COMBRINK J
So, what are you going to do?
MR FRASER
I want to ask M’Lord to appoint me as
amicus
curiae
to apply for the same applications Mr ...[intervention]
COMBRINK J
It’s been held on three occasions that he is
deliberately malingering. I am satisfied, having watched him over a
long period
of time ...[intervention]
MR FRASER
Yes.
COMBRINK J
... that he follows what is being said, but
persists in his attitude that led you to believe that he was
incapable of following
the proceedings by properly instructing you
as to a defence for him, and that resulted in three referrals in
terms of the Criminal
Procedure Act for mental observation. Normally
matters would rest where they are. I take it, however, that you
believe that there
are prospects of success should he have applied
properly instructing you thereto.
MR FRASER
That is so, M’Lord.
COMBRINK J
Yes, well, then in that case I appoint you
amicus
curiae
, that’s on behalf of accused 9. Whilst you are
dishing out appointments to yourself, do you not wish to act
pro
bono
for accused 13 in this regard?
MR FRASER
M’Lord, I was about to address M’Lord
on that because accused 13 at this stage still does not have a legal
representative,
so I will do that on a
pro bono
basis and
apply on his behalf for the same applications as my learned friend
Mr Maree.
COMBRINK J
Yes. Are you prepared to accept that offer that it
appears to me you cannot refuse? Sorry, before you – let me
just finish,
if you accept that – allow that appointment on
your behalf then the immediate can be done on your behalf, you are
free
at any stage to properly instruct Mr Fraser through your family
or you yourself can instruct another legal representative to do
what
is necessary after today. I mention that because the necessary steps
are set in motion today.
ACCUSED 13
I accept the offer, M'Lord.
COMBRINK J
Yes. You are appointed, Mr Fraser. Now, what
...[intervention]
MR FRASER
Then I bring an application on behalf of accused 13
as well, M'Lord.
COMBRINK J
Yes, I grant that. Are you lodging the same
applications ...[intervention]
MR FRASER
The same one, M'Lord.
COMBRINK J
... for the mentioned accused, including accused
13, for leave to appeal and to be admitted to bail?
MR FRASER
Yes, yes, M'Lord.
COMBRINK J
Yes. You wish to note it and then postpone it in
the same way?
MR FRASER
Yes, correct, M'Lord.
COMBRINK J
Yes, that is done.
MR FRASER
Thank you, M'Lord, then that’s my
application.
MR BOTHA
M’Lord, I appear for accused 4, accused 5, 15,
16, 17 and 26. M’Lord, similarly I wish to bring the same
applications
as explained ...[intervention]
COMBRINK J
In all respects?
MR BOTHA
In all respects, yes, thank you, M'Lord. Thank you,
M'Lord.
COMBRINK J
Yes.
MR PARMANAND
M’Lord, with the greatest respect, and I
am subject to correction, apropos counts 27, 28, 29 and 30, that
would refer to
the occupants of the white kombi.
COMBRINK J
Yes.
MR PARMANAND
M’Lord mentioned accused 22.
COMBRINK J
That was a mistake.
MR PARMANAND
As the Court pleases.
COMBRINK J
I mentioned accused 21, 22 – 23 and 24.
MR PARMANAND
Yes, M’Lord mentioned 22, so we will
strike ...[intervention]
COMBRINK J
I am sorry, then it’s ...[intervention]
MR PARMANAND
As the Court pleases.
COMBRINK J
... 23 and not 22 and 24.
MR PARMANAND
Yes. M’Lord, without repeating what Mr
Fraser has said, save for his diversion in respect of accused 13, I
bring the same
applications, the application noting the application
for leave to appeal in respect of conviction and sentence and
admission
to bail.
COMBRINK J
And that it be postponed to a date to be arranged.
MR PARMANAND
As the Court pleases. M’Lord, there is one
other aspect that I have been instructed to bring to M’Lord’s
attention,
whether it’s within the jurisdiction of M’Lord
is another issue. The question of those I represent, accused 6, 19,
22 and 24, not being kept ...[intervention]
COMBRINK J
Let me just note them because ...[indistinct] Just
give me the accused again.
MR PARMANAND
Accused 6, 19, 22 and 24 not being kept
indefinitely at Kokstad but to be, to use the word, deployed to
prisons that are nearer
their homes, for example Johannesburg,
etcetera. I believe my learned friend, Mr Fraser, has addressed
a letter to ...[intervention]
COMBRINK J
Can I just interrupt you? It is not within my
power, because the moment they are sentenced the control over their
freedom is
transferred to the Department of Correctional Services to
deal with under the prescripts of the legislation applicable to
them.
I understand that they have to go to Kokstad and there –
I don’t know whether it’s aptitude tests or whatever
performed, and then the prison will decide where they go. I presume
that it is only sensible that they would, in exercise of
their
powers, solely their powers, and not subject to any order of mine,
to do what they have to, but bear in mind the humanitarian
aspects
of family ties and the like.
MR PARMANAND
As the Court pleases.
COMBRINK J
But I cannot make any order.
MR PARMANAND
As the Court pleases, I have no further
submissions.
MR SEEDAT
M’Lord, I bring the application for leave to
appeal and the bail application. I note this application on behalf
of accused
1, 7, 11 and 20.
COMBRINK J
1, 7, 11, 20?
MR SEEDAT
Yes, M'Lord. Thank you, M'Lord.
COMBRINK J
The applications are noted in respect of all the
applications and postponed to a date to be arranged with the
Registrar.
MR MAREE
As the Court pleases.
MR BOTHA
As the Court pleases, M'Lord.
COMBRINK J
Just a word of caution, an application for leave
to appeal noted immediately is only a complete application once
grounds upon
which the appeal is being prosecuted is read into the
record, that is the normal process. I appreciate that it’s
impossible
for counsel, given the magnitude of the judgment and your
hearing about the reasons for sentence only now, that you are not in
a position to read such grounds into the record, unless you surprise
me. Because the grounds are not read into the record now
the
applications will not be complete and pending properly until the
grounds are filed on notice of motion or whatever you are
advised to
do, so that the time period prescribed by the Criminal Procedure Act
for an application of this nature for leave to
appeal to be lodged
will continue to apply until the grounds are furnished, so bear that
in mind when you take instructions for
the necessary mandate to
prosecute these applications to their natural conclusion. I think
that the accused should be advised,
I suggest that you confer with
them in that regard, so that they are not late in bringing these
applications to finality lest
you be caught up with the time
periods. If I might make an observation from the bench. I have, for
so many years, seen the fruits
of negotiations with the Legal Aid
Board and I think that you will have to seriously press your case
with them otherwise they
will not react in time. I take it counsel
will make use of this opportunity to confer with the accused. Yes.
This has been an
extraordinarily lengthy trial and the fact that it
has come to a conclusion would, in varying degrees, be a sense of
relief to
all. I wish to express the Court’s indebtedness to a
number of persons without whose best efforts that I saw being
granted
and given in these proceedings this trial would not have
been one that ran as smoothly as it did. In the first place the
accused.
I know that a trial of this nature, given the extraordinary
number of charges and the duration of the testimony, that
frustration
must have built up in you. I have had experience in the
past occasions when that frustration led into recalcitrant conduct
and
disruptive conduct of the proceedings by the accused during the
trials. I am indebted to you as a group that you kept your spirits
high and did not become disruptive. Counsel for the State have done
an extraordinary job and unravelled the most jumbled facts
into an
ordered charge sheet, indictment, and the way in which the evidence
was placed before the Court. Counsel for the defence
have been
thorough and exemplary in what you did and the accused certainly
have no reason to complain about the quality of services
you
rendered to them. Without your co-operation with counsel for the
State and the requests of the Court this matter would not
have
proceeded as smoothly as it did to this point. The investigating
officer, Colonel van Rensburg, did an exceptional job.
This is one
of the most thorough and competent investigations in presenting to
the Court the requisite evidence through counsel
for the State. Mrs
Botha, arguably the best cell phone analyst in the country, was
available to the State, counsel for the
defence and the Court to
enable all of us to extract from the incredible volume of cell phone
evidence that which was pertinent
to these issues. Without that
assistance counsel for the State would never be able to place the
necessary cell-phone communications
before the Court, neither would
counsel for the defence be able to cross-examine on it. It would
take years for individuals to
extract that information. When I was
instructed to preside in this trial I was informed that the accused
were extremely high
risk – escape risk awaiting trial
prisoners. The conduct of the accused did not bear that out, but the
necessary arrangements
and management had to be put in place to
secure the wellbeing of the accused as well as their detention and
the wellbeing of the members of the court and the prosecution
and
defence teams. This venue was chosen as the most secure in the
province of KwaZulu-Natal. A large contingent of police officials
were appointed under the command of Colonel Slinger to make
certain that security and all the requisite arrangements are
in
place always. His duties expanded far beyond that of the immediate
safeguarding of the court’s precincts and the persona
involved. He attended to the accused’s medical needs and made
certain that they obtained professional services when needed.
His
services have been indispensible. He informs me that he experienced
from the accused only goodwill and assistance where necessary.
It
didn’t apply to the cell-phones. We have dealt with three
languages to be interpreted throughout these proceedings.
Fortunately, with the co-operation of the accused, we were able to
make available specific interpreters to specific accused should
it
be needed, but we were able to expedite proceedings incredibly by
using only interpretation into the Zulu language and to
have the
specific interpretation on standby for the cases when needed. Over a
period of 25 years I have worked with many interpreters,
some poor,
some mediocre and some exceptional. Over the last few years we have
had the best of services in that regard and I
wish to extend my
gratitude to our three interpreters. Finally, I wish to single out
Mrs Skead, my Registrar. She was throughout
charged with the
administration of the court, its sitting, the managing of the
witnesses and the smooth running of the physical
features of the
trial itself. In a sense she was and is the court. She was not
always present in the well of the court because
she had too much
work on the outside to perform to be in the well of the court every
day, though I ought in this regard thank
myself because I have been
training her for 25 years. Finally I confess to find it extremely
difficult to pass sentence as I
am required by law to do because
your faces have become familiar to me, even likeable. I wish you
success. The Court
will rise.
PROCEEDINGS ADJOURNED
IN THE HIGH COURT OF SOUTH
AFRICA
NORTH EASTERN CIRCUIT LOCAL
DIVISION
HELD AT PONGOLA
CASE NO : CC169/07
DATE : 29
th
June 2012
STATE
versus
M V SHANGE & OTHERS
BEFORE THE HONOURABLE MR JUSTICE COMBRINK
ASSESSOR : MR I REID
ON BEHALF OF STATE : MR SELEPE
MR XABA
ON BEHALF OF DEFENCE : MR MAREE
(Accused 2, 3, 8 14 & 25)
MR FRASER
(Accused 9, 18, 21 & 23)
MR BOTHA
(Accused 4, 5, 15, 16, 17 & 26)
MR PARMANAND
(Accused 6, 19, 22 & 24)
MR SEEDAT
(Accused 1, 7, 11 & 20)
INTERPRETERS : MR [?]
MS [?]
REPORT ON RECORDING
Clear recording.
TRANSCRIBER’S
CERTIFICATE
This is, to the best abilities of the transcriber, a true and
correct transcript of the proceedings,
where audible
,
recorded by means of a mechanical recorder in the matter:
STATE v M V SHANGE & OTHERS
CASE NO : CC169/07
COURT OF ORIGIN : PONGOLA
TRANSCRIBER : L J PICKLES
DATE COMPLETED : 09 AUGUST 2012
NO OF TAPES/CD : CD
NO OF PAGES : 41