IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA

Case number: CC14/2024

In the matter between: -

THE STATE

And

BONGANI MAKASI Accused 1

THUKELA MAYATHULA Accused 3

JUDGMENT - SENTENCE
Noncembu J

[1] Accused 1 has been convicted of one count of robbery with aggravating
circumstances, whist accused 3 has been convicted of 4 counts of robbery with
aggravating circumstances, unlawful possession of a firearm and unlawful possession
of ammunition, kidnapping, attempted murder and murder. The prescribed minimum
sentence of 15 years is applicable in respect of t he robbery and unlawful possession of
a firearm offences, in that a firearm was used, and grievous bodily harm was inflicted

during the commission of the robbery offences, and the firearm that was possessed by
accused 3 was a semi -automatic. In respect of the murder charge t he applicable
minimum sentences is life imprisonment as the deceased was killed during the
commission of a robbery.

[2] I now deal with the sentencing of the accused for these crimes.

[3] The salient facts of the matter, which are dealt with extensively in the main
judgment, can be summarized as follows. On the night of 29 May 2023, the accused,
more specifically, accused 3, with one Siya who turned state witness after his conviction
for his role, went on a rampage around Central i n Gqeberha where they were robbing
anyone who was in their way, and shooting people.

[4] The evidence tendered was that an Atlas security guard had stopped to intervene
as accused 1 and 3 together with Siya, were busy robbing an unknown coloured male of
his cellphone. The said coloured male ran to the security guard for assistance, when
accused 3 and Siya attacked the security guard, with Siya grabbing his firearm whist
accused 3 was busy hitting him with a firearm on the heard until he lost consciousness.
Accused 1 in the process was busy helping himself to the security guard’s belongings in
his vehicle, whilst also encouraging accused 3 to hit the security guard on the head. The
gruesome scene with horrid screams from the security guard as he was crying for help,
was captured on video with a cellphone by a witness who saw the incident from a
building nearby, which video later became viral.

[5] After robbing the security guard the three separ ated as accused 1 went his own
way whilst accused 3 and Siya continued with their night of terror. They proceeded
towards a student accommodation in Belmont Terrace where they accosted a group of
female students who were coming out of the building at gunpo int. They took the
students back inside where they confined them , together with other students who were
inside the residence, under the staircase against their wishes, and robbed them of their
cellphones, laptops and money. One of the students was severely assaulted with a
firearm by accused 3 and had to be taken to hospital where she received some stitches.

[6] From the student residence they proceeded to an old, abandoned building known
as the ANC building where accused 3 shot one Abongile Makwethu on the leg because
he viewed him as being disrespectful , and also robbed him of his cellphone. They then
proceeded to a tavern (Madeira Tavern) where accused 3 randomly shot one African
male who was talking on the phone, after which the two robbed him of his cellphone and
cigarettes. The said male died as a result of complications following the gunshot wound
to the left thigh perforating the left femoral blood vessels, which led to him bleedi ng to
his death. As if nothing had happened, t he two then sold the items robbed from their
victims and shared the proceeds from their spoils.

[7] The imposition of sentence is not a mechanical process in which predetermined
sentences are imposed for spec ific crimes. It is a nuanced process in which the court is
required to weigh and balance a variety of factors to determine a measure of the moral,
as opposed to legal, blameworthiness of an accused. That measure is achieved by a
consideration, and an appro priate balancing, of what the well -known case of S v Zinn
1969 (2) SA 537 (A), at 540G -H described as a ‘triad consisting of the crime, the
offender and the interests of society’. Coupled with this balancing act, a court must also
take into account the pu rpose of sentencing which is four -fold, retribution, prevention,
deterrence and rehabilitation.

[8] A sentencing court does not always have an untrammelled discretion to
determine sentence – a clean slate on which to work. In certain cases – as indicated in
paragraph 1 above – a prescribed minimum sentence is provided for by the Criminal
Law Amendment Act 105 of 1997. I deal with this later in the judgment.

[9] First I deal with the Zinn triad where I start with the personal circumstances of the
accused. Accused 1 is 34 years old, single with two minor children who are 16 and 6
years old respectively. H is children currently reside with their aunt, and although he is
not their primary care giver, he did support them financially when he was employed.
Before his arrest he worked as a car wash earning approximately R2000 per month. His
highest level of educa tion is grade 8. He has three previous convictions, two of
housebreaking with intent to rob and one of robbery. He has been in custody awaiting
trial for 1 and a half years in this matter.

[10] Accused 3 is 28 years old, single with no children. He lost both his parents at the
age of 18 and was looked after by his maternal grandmother. His highest level of
education is grade 5. He left home at the age of 18 and has been living on the streets in
Central since then, where he used to work as a taxi fare coll ector. He has 1 previous
conviction of robbery and has been in custody on this matter since his arrest on 22 June
2023.

[11] The seriousness of the offences committed by the accused persons are beyond
question. The robberies involved the infliction of grievous bodily harm where the victims
were either severely assaulted with a firearm to the extent of requiring hospitalization o r
hospital treatment (including sutures), or they were shot with a firearm. It is clear that
accused 3 was on a rampage, going around terrorizing people and robbing whoever
came his way on the night in question. The video footage depicting the Atlas securi ty
screaming for help leaves one with chills down the spine. It can only be ascribed to a
miracle that he was able to survive the ordeal to be able to tell his tale.

[12] A similar misfortune befell the students who were minding their own business not
being aware of the danger that was lurking. One of the students was severely assaulted
for no apparent reason. The deceased in respect of count 12 was also killed for no
apparent reason. There is nothing to indicate that he would have offered any resistance
had the accused simply demanded his phone. Instead, he was never even given the
opportunity. Why he had to die for a cellphone and a mere packet of cigarettes is a
mystery to me. The right to life is one of the sacrosanct rights entrenched in our Bill of
Rights. Not only was his right to life violated by the accused, specifically accused 3 in
this instance, his right to privacy and dignity were also violated in a most gruesome way.

[13] No doubt society views these offences in a very serious light. For one to find
themselves in a situation where they are not able to walk freely in their own community,
or feel safe in the sanctity of their home, as was the case with Abongile who was shot
whilst lying on his own bed, says a lot about the community we live in. In these
circumstances courts have a duty to ensure that members of the community feel safe
and protected. This they can do by ensuring that offences of this nature are dealt with in
a manner that displays its serious displeasure and a clear message that such conduct
will not be tolerated in our communities. This is no doubt one case where the court has
to satisfy society’s need for retribution in sentencing the offenders for their crime s, for
anything less might lead to them resorting to self-help.

[14] I now turn to consider whether or not substantial and compelling circumstances
justifying a deviation from the prescribed sentences are applicable in the present matter.

[15] The approach of the courts to sentence when the Criminal Law Amendment Act
applies is now well developed. It has been emphasised in S v Malgas 2001 (1) SACR
469 (SCA), at paragraph 8, that when sentencing for crimes specified in the Act, a court
is required to ‘app roach 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 …’. Even though the Act has placed
emphasis on ‘the objective gravity of the type of crime and the public’s need for effective
sanctions against it’ discretion to deviate from the prescribed sentence was granted to
courts ‘in recognition of the easily foreseeable injustices which would result from
obliging them to pass the specified sentences come what may’.

[16] As indicated above, a court may deviate from the sentences prescribed by the
Act if ‘substantial and compelling circumstances’ are present. In Malgas, at paragraph 9,
it was held that it is impermissib le to deviate from the prescribed sentence ‘lightly and
for flimsy reasons which could not withstand scrutiny’ but, this apart, all factors relevant
to determining sentence remain relevant when the Act applies and a sentencing court
must look to the ‘ultimate cumulative impact’ of all of these factors in order to determine
whether a departure from the prescribed sentence is justified.

[17] In Malgas, at paragraph 22, the court held that when a court is convinced that the
imposition of the prescribed sent ence would be unjust or ‘disproportionate to the crime,
the criminal and the legitimate needs of society’ that in itself constitutes substantial and
compelling circumstances. (See also S v Fatyi 2001 (1) SACR 485 (SCA), at
paragraph 5).

[18] The effect of Malgas was examined by Nugent JA in S v Vilakazi 2009 (1) SACR
552 (SCA). At paragraph 14 he observed that it is ‘only by approaching sentencing
under the Act in the manner that was laid down by this court in S v Malgas … that
incongruous and disproportionate sentences are capable of being avoided’ and that by
‘avoiding sentences that are disproportionate a court necessarily safe -guards against
the risk … that sentences will be imposed in some cases that are so disproportionate as
to be unconstitutional’.

[19] Nugent JA set out how a court is to approach the imposition of sentence when
the Act applies, stating, at paragraph 15:

‘It is clear from the terms in which the test was framed in Malgas and endorsed in
Dodo that it is incumbent up on a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all the circumstances of
the particular case, whether the prescribed sentence is indeed proportionate to
the particular offence. The Constitutional Court made it clear that what is meant
by the “offence” in the context … “consists of all factors relevant to the nature
and seriousness of the criminal act itself, as well as all relevant personal and
other circumstances relating to the offender which could hav e a bearing on the
seriousness of the offence and the culpability of the offender”. If a court is indeed
satisfied that a lesser sentence is called for in the particular case, thus justifying
a departure from the prescribed sentence, then it hardly needs s aying that the
court is bound to impose that lesser sentence.’

[20] Although there can be no question that accused 1 was an active participant in the
robbery of the Atlas security guard, the evidence presented shows that the role he
played was quite limited compared to that of his co-perpetrators. His culpability or moral
blameworthiness, therefore, cannot be placed at the same level as that of Siya and
accused 3, although he was cheering them on in the assault of the Atlas security guard.
This is more so given the evidence before this court that not only was accused 3 the
main protagonist on the night in question, but also that anyone who dared disobey him
faced his wrath.

[21] Further fortifying this view is the fact that after the robbery of the Atlas security,
he went his own way and there is no evidence before this court that he actually shared
in the spoils of the robberies with accused 3 and Siya . I therefore find these factors to
constitute substantial and compelling circumstances justifying a deviation from the
prescribed minimum sentence. Nevertheless, as indicated earlier, I am mindful of the
fact that he was an active participant in the robbery, and therefore, even in deviation, a
lengthy term of imprisonment is still warranted.

[22] With r egards to the period that the accused spent in detention whilst awaiting
trial, the SCA made it clear in S v Radebe 1 that this cannot, on its own constitute
‘substantial and compelling circumstances’ justifying a departure from the minimum
sentence prescribed. Lewis JA, stated that ‘the period in detention pre-sentencing is but
one of the factors that should be taken into account in determining whether the effective
period of imprisonment to be imposed is justified: whether it is proportionate to the crime
committed’.


1 2013 (2) SACR 165 (SCA); see also DPP v Gwala [2014] ZASCA 44 (unreported, SCA case no 295/13,
31 March 2014).
[23] With regards to accused 3, regrettably, his position is on a totally different footing
to that of accused 1. The evidence presented in court demonstrates that not only was
he the master mind in the commission of the offences on the night in question ; but that
he was, like his name, the man of Action ; ordering everyone around and making sure
that anyone who did not follow his instructions to the ‘t’ faced his wrath. This was
evinced in the evidence of Abongile who was shot merely because he did not do what
he had instructed him to do. The same fate befell Siya who was assaulted when he
resisted following his instructions.

[24] Further support in this regard was found from the evidence of the students who
not only confi rmed that Siya, who clearly was not very keen on robbing them, was
taking instructions from accused 3, and that anyone who did not do as told by accused
3 was either threatened with a firearm, or severely assaulted. Two of the students were
assaulted by ac cused 3, one of them severely so, simply because they did not toe his
line.

[25] There is, in my view, nothing peculiar in the personal circumstances of accused 3
which can be said to constitute substantial and compelling circumstances justifying a
deviation from the prescribed minimum sentences . The brazen manner in which he
committed the offences on the day in question, starting from the assault on the security
guard, up to the deceased who was just shot for no apparent reason, all go to show the
brutality with which he carried himself on the night in question. He went about terrorizing
the entire Central area on the night in question, and anyone who came his way became
his victim. Given the brazen manner in which he committed these offences, his wanton
disregard for human life, and just his lack of humanity (ubuntu), are all aggravating
circumstances which lead me to the ineluctable conclusion that the prescribed minimum
sentences are not disproportionate to the offences he committed.

[26] The community of Central, which comprises of a student community who reside
in the area, need to feel protected and to be able to move around without being
terrorized by the likes of him. Whilst I take into account that he had difficulties earlier on
in his life, having lost both his parents at the age of 18, it is noteworthy that even then,
he had already attained the age of majority when his parents demised, and therefore
was no longer a child. Furthermore, on his own version, he was not left destitute as he
had his grandmother, like many South Africans who are raised by their grandparents, to
look after, but he chose to go and live on the streets of Central.

[27] I find it quite worrisome that he seems to have no sense of remorse or even an
acknowledgment of the seriousness of the offences he committed. In fact, he was very
bold and daring in even telling the court about his life of crime selling drugs, etc, as if
with no care of the implications whatsoever. The impact that the crimes he committed in
this matter was clearly demonstrated in the evidence of the witnesses who testified in
this court, one of whom was so traumatized that she could not even attend to an
identification parade, and had to leave his room because of the trauma of the
experience.

[28] The victim impact statements presented also paint a very bleak picture of
children who have been left without a father and who have to grow up without the love
and support of their father. Their mother now has to fend by herself in raising her
children wit hout their father’s support, both financial and otherwise. The father of the
deceased has to leave with the trauma of watching the lifeless body of his son lying in a
pool of blood , and the experience of having to bury his only son. An aspect which has
also affected the deceased’s grandmother. These are all factors which clearly have no
bearing on accused 3 as he goes on with his life. It is therefore difficult for me to find
that the accused is a suitable candidate for rehabilitation, given that he cannot even
take responsibility for his action, a step usually considered as a basis in determining
one’s suitability for rehabilitation.

[29] With these factors considered cumulatively , I find that the pr escribed minimum
sentences are just sentences on the circ umstances of this matter , proportionate to the
offender, the offences committed by the accused and the legitimate interests of society.

[30] Consequently, the accused are sentenced as follows:

a) Count 1: Accused 1 is sentenced to undergo 10 years imprisonment.
Accused 3 is sentenced to undergo 15 years imprisonment
b) Count 2: Accused 3 is sentenced to undergo 15 years imprisonment.
c) Count 3: Accused 3 is sentenced to undergo 5 years imprisonment.
d) Count 5: Accused 3 is sentenced to undergo 15 years imprisonment.
e) Count 6: Accused 3 is sentenced to undergo 8 years imprisonment.
f) Counts 7: Accused 3 is sentenced to undergo 10 years imprisonment.
g) Count 8: Accused 3 is sentenced to undergo 15 years imprisonment.
h) Count 11: Accused 3 is sentenced to undergo 15 years imprisonment
i) Count 12: Accused 3 is sentenced to undergo life imprisonment.

By operation of the law, any sentence imposed together with life
imprisonment shall run c oncurrently with such sentence of life
imprisonment.

[31] No otherwise order is made in terms of section 103(1) of the Firearms
Control Act (Act 60 of 2000 ), (both accused persons remain unfit to possess a
firearm).


______________
V NONCEMBU
JUDGE OF THE HIGH COURT


APPEARANCES

For the State: Adv Makasana

For Accused 1: Adv Slabbert

For Accused 3: Adv S Cubungu

Date: 19 December 2024