IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 81/2020

In the matter between

THE STATE

AND

NDUMISO LUTSHETU

ASHWIN KENNEDY

BONGANI MVAMVEKI

MALIBONGWE WITBOOI

Date of Hearing: 02 October 2023
Date of Judgment on the merits : 13 March 2025
Date of Judgment on sentence : 21 May 2025
_______________________________________________________________
JUDGMENT
________________________________________________________________

THULARE J

SENTENCE

Each of the accused is sentenced as follows:

1. On count 1, the murder of Jan Nieuwenhuys, life imprisonment.
2. On count 2, the murder of Simthembile Nyangiwe, life imprisonment.
3. On count 3, robbery with aggravating circumstances involving Nieuwenhuys
pistol, 15 years imprisonment.
4. On count 4, robbery with aggravating circumstances in volving Nyangiwe’s
pistol, 15 years imprisonment.
5. On count 5, unlawful possession of firearms, 15 years imprisonment
6. On count 6, unlawful possession of ammunition, 15 years imprisonment.
7. All four accused are declared unfit to possess a firearm.
8. The sentenc es in counts 3, 4, 5 and 6 shall run concurrently with the sentence
in count 1 and 2 .

[1] The accused were convicted of two counts of murder of two law enforcement
officers, Jan Nieuwenhuys and Simthembile Nyangiwe; two counts of robbery with
aggravating circumstances where the two law enforcement officers had their service
pistols taken by force, one count of unlawful possession of firearms and one count of
unlawful possession of ammunition . The two counts of murder (count 1 and 2) and
the two counts of robbery with aggravating circumstances (count 3 and 4) are
serious offences where the discretionary minimum sentences are applicable as
envisaged in section 51 of the Criminal Law Amendment A ct 105 of 1997 (the
CLAA). For each of the murder charges, the discretionary prescribed minimum
sentence is life imprisonment as envisaged in section 51(1) of the CLAA . For the
robbery with aggravating circumstances for a first offender, the discretionary
prescribed minimum sentence is 15 years imprisonment for each count as envisaged
in section 51(2) of the CLAA . For the unlawful possession of a firearm (count 5) , the
discretionary sentence is 15 years imprisonment and for the unlawful possession of
ammun ition (count 6) the discretionary sentence is also 15 years imprisonment as
envisaged in schedule 4 to the Firearms Control Act 60 of 2000 (the FCA).

[2] The sentences in counts 1, 2, 3 and 4 are peremptory [section 51(1) and 51(2)(a)
of the CLAA respectively] unless the court is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence than the
sentenc e prescribed in those subsections, and it shall enter those circumstances on
the record of the proceedings and must thereupon impose such lesser sentence
[section 51(3) of the CLAA]. The seriousness of the offense, the accused's individual
circumstances, a nd the interests of society must all be considered when determining
the appropriate sentence. These considerations must be weighed up as, with and
against any potential significant and compelling circumstances that call for a
departure from the prescribed sentence. The considerations have become well -
established as the Zinn triad [S v Zinn 1969(2) SA 537 (A) at 540G]. The personal
circumstance of the offender includ es their status, character, failures and
achievements, conduct in life , competencies and personality, and everything that
may have had an influence on the commission of the offence including all other
factors in their favour that may mitigate the sentence or against them that may
aggravate the sentence . The nature and seriousn ess of the offence committed
includes a consideration of the proportionality between the offence and the sentence
[S v Vilakazi 2009 (1) SACR 552 (SCA) at para18 . The punishment must fit the
severity of the crime committed and care should be taken that exc essive sentences
are not imposed for minor offences and that serious crimes receive appropriate
sentences , which may be severe and harsh as required by our constitutional values
and ethos [ S v Dyantyi 2011 (1) SACR 540 (ECG) at para 21] . The discretionary
minimum sentence regime as well as the appropriate weight to the offence
committed also ensures a level of uniformity in sentencing [ S v Bodibe (CC 14/2021)
[2021] ZAGPPHC 715 ].

[3] The approach to the interests of the community as a factor in sentencing was set
out in R v. Karg 1961 (1) SA 231 (A) at 236 A -B] where it was said:

"It is not wrong that the natural indignation of interested persons and of the
community at large should receive some recognition in the sentences that
Courts impose, and it is not irrelevant to bear in mind that if sentences for
serious crimes are too lenient, the administration of justice may fall into
disrepute and injured persons may incline to take the law into their own
hands. Naturally, righteous a nger should not becloud judgment."

In 1961 the Appellate Division saw persons injured by the crime as part of the
community and considered victims as a constituent part of the interests of the
community. T he emerging thinking in the Supreme Court of Appeal since 2023 is
that the interests of the victim of the offence is the fourth element distinct from the
Zinn triad [Maila v S (429/2022) ZASCA 3 (23 January 2023) para 52 footnote 26]. In
this Division, the view was expressed as follows in CW v S (Appeal) (A301/2024)
[2025] ZAWCHC 198 (13 May 2025) :

“Is it not time to replace the triad with a quartet of factors: the crime, the
criminal, the community and the consequences for the victim, both directly
and ind irectly? As an aide -memoire, the four c’s are those that a court must
consider and apply in unison without emphasising one over the other.”

[4] All four accused were drop -outs of basic education. Having observed the accused
throughout the trial, including listening to them, it is not wrong to conclude that all
four were children who struggled with and in traditional educational settings. It seems
to me that a ll four accused were children who faced various learning barriers that
hindered their educational progress. Counsel for the accused argued for the court to
consider the absence of a proper account from the State, not in the sense of the
prosecuting authori ty, but in the sense of the Republic of South Africa, on how it
treated school foundation phase learners who faced learning barriers. Counsel for
the accused cannot be faulted for urging the court to call out the failure of the state to
provide an explanat ion of its response to barriers that hinder educational progress
especially of young people who end up as perpetrators of serious violent and often
fatal crimes. There is merit in the observations of counsel that most accused persons
found guilty of seriou s violent crimes, especially gang -related violent crimes in the
Cape Flats, are foundation phase school drop -outs. Most, if not all, including the
accused before me, have not passed grade seven. Courts are left in the dark as to
the educational profile, in terventions if any and the response thereto by the
education system. The time is tik -toking towards the need for educators, principals
and if needs be accounting officers within the Department of Basic Education to
come and account for their mitigating interventions, if any, including on cognitive,
emotional, social and environmental factors that hindered the educational progress
of their learners who ended up as easy targets for recruitment by street gangs. What
happened to all four of the accused in this matter, where they were simply kept in
foundation phase and some until the age of 17 , that was accused 1, 2 and 4, and in
respect of accused 3 until he was 23 years old and then off -loaded to the streets,
without any educational or vocational support, cannot be allowed to continue
unabated .

[5] The Minister of Basic Education may be too young to know, but even apartheid
basic education issued its learners with the “Certificate of Perseverance” and off -
loaded them to schools of trade and did vocational t raining , and not to aimlessly
wander the streets with no vocational training explored as an alternative and in
extreme cases attention given to children’s processing disorders . In the context of
children with learn ing barriers at foundation phase t he accused were victim s of a
cold and non -responsive foundation phase education system , which simply tolerated
their difficulties with learning until they dropped out of the system . Courts cannot and
should not condone a “good riddance by omission’ when it comes to human beings.
No one belongs in the ‘human waste disposal bin’ in a progress ive society. As it
turns out, that ‘ human waste disposal bin’ bred anti -social behaviour and has made
the Cape Flats the most dangerous place to raise children, especiall y boy -children,
in the Republic. As the accused have shown in this matter, boy -children thrown into
a ‘human waste disposal bin’ by being off -loaded from a non -responsive basic
education , without any intervention, to the street gangs, have now become not o nly a
danger to society, but actually are bold enough to challenge the authority of the state
to such an extent that in broad daylight, they were brazen to disarm the state’s
armed forces by killing law enforcement officers to secure firearms to use in the ir
criminal activities. The Republic’s armed forces were no match to children with
learning barriers who were left unattended into adulthood.

[6] Being a victim of educational failure is not taken lightly by this court, nonetheless,
it does not justify t he inability to differentiate right from wrong or good from bad .
Those are basic teachings from good parents, educators, blood relations and the
community and its structures . People frequently do their hardest to blend in and feel
like the people around th em rather than thinking for themselves. However, this is
more typically about spreading pre -existing beliefs than it is about thinking. One
alone is aware of one’s desires and what is best for one. People will take advantage
of one and force one to work toward their objectives rather than one’s objectives if
one does not think for one’s self. Additionally, one must be able to think
independently to separate the good from the bad because there is a lot of false
information out there.

[7] Accused 1, Lutshetu, was 30 years old. He maintained that he was not guilty . He
was a first -time offender . He asked to be released to be able to provide for his child
whose primary caregiver was the mother of the accused . The accused was
unmarried, not employed and he was not providing for the child financially before
arrest , except for now and then giving what he could from odd -jobs. Accused 2,
Kennedy, was 32 years old. He maintained that he was not guilty . He claimed in
court that he was a victim of the nation's inadequate educational system, arguing
that his educational failure was primarily due to his preference for and proficiency
with manual labour rather than a lack of interest in learning. As a result, he
terminated his education be cause he struggled with the normal school and preferred
to work with his hands which he was good at. He was not a candidate to complete
matriculati on. He was a first offender. Kennedy stated that he wanted to provide for
and see his children through high school. He had never been the primary care giver
of the children and used his meagre earnings from part time odd jobs to help his
child.

[8] Accused 3, Mvamveki, has a n unrelated previous conviction which he admitted.
His counsel submitted that he too fell victim to the education system which led to him
terminating his education beforetime and falling prone to the world of crime. He only
went u p to grade 7 and dropped out of school when he was about 23 years old as he
struggled in academic classes . He was the father of one child. He did odd jobs as a
plumber , which he was good at . He was unmarried. Accused 4, Witbooi, was 42
years of age. He was approximately 36 years old at the time of the commission of
the offences. He has been in custody ever since his arrest, 4 September 2019, which
is a period of a little over five years. He is not married but is a father to two minor
children by different m others. The children are in the care and custody of their
respective mothers. Before his arrest, he was self -employed and provided
maintenance for his children . He dropped out of school in grade 6 when he was 17
years old . He was unmarried but had a steady girlfriend prior to his arrest.

[9] For their part counsel for accused, also urged this court to find substantial and
compelling reasons justifying a departure from the mandatory minimum sentences.
Being of the view that the time that they had already spent in prison, while awaiting
trial, should be counted towards their sentence. If for instance they are sentenced to
20 years, then the 5 years that they were awaiting sentence should be subtracted
from their sentence making it 15 years. This approach of the court reducing a
sentence as seen in S v Brophy and Another 2007 (2) SACR 56 (W) paras 16 -19
where the court reduced the minimum sentences on the basis that the time spent in
custody while awaiting trial was a substantial and compelling c ircumstance, was
rejected in Radebe and Another v S [2013] ZASCA 31; 2013 (2) SACR 165 (SCA)
paras 13 -14 which criticized the application of any formula. Rather, the time spent in
custody awaiting trial is one of the factors to consider when determining wh ether
there is justification for a sentence that is less than the prescribed minimum
sentence. Each case should be evaluated according to its own merits. There is no
set rule regarding the weight that should be given to pre -sentencing incarceration
when it comes to finite sentences. It is but one of the factors to take into
consideration when determining the existence of substantial and compelling
circumsta nces [Radebe para 13 to 14] . Similarly, th e Court in Director of Public
Prosecutions North Gauteng: Pretoria v Gcwala and Others [2014] ZASCA 44; 2014
(2) SACR 337 (SCA) paras 26 -30 determined that the trial court misunderstood in
using the formulas and ra ised the sentences. The Court in Ncgobo v S [2018]
ZASCA 6; 2018 (1) SACR 479 (SCA) para 7 confirmed that the time spent in prison
prior to conviction and sentencing is not, by itself, a major and compelling reason
when it came to a life imprisonment. It only serves as a determining factor in whether
the sentence is unfair and disproportionate. It was decided that a life sentence would
not be wildly unfair because the two years in custody would have little effect on
them.

[10] This court v iews the offenses committed with extreme seriousness. Without
exception, none of them qualify as small offenses. Shane and accused 1were the
masterminds behind the crimes. They went to accused 4 to borrow unlicenced
firearms which it appears they knew accu sed 4 kept. They explained to accused 4
that they wanted to rob the two law enforcement officers . Shane and accused 1
knew the area well, as well as the law enforcement officers who did duty at the
construction site. This is the logical explanation of thei r knowledge that Nieuwenhuys
and Nyangiwe were new to the area and new as law enforcement officers. Accused
2 was at the ti me in accused 4’s shack. Shane, accused 1 and 4 went into accused
4’s shack ostensibly to collect the firearms. Shane, accused 1, 2, and 4 planned the
robbery. Accused 2 left with Shane and accused 1 at the same time from accused
4’s shack. This offence was planned and it matters not that the evidence could not
precisely establish when accused 3 joined the plan, suffice to say that he w as part of
the execution of the plan . The accused decided to shoot to kill the two law
enforcement officers. If the plan was to simply get the firearms , the loss of two lives
was unnecessary. One must contextualise the developments to understand the
message from the street gang. In is public knowledge that the City of Cape Town
(the City), a local government, struggled with attacks of those who worked on the
construction sites where the City was active with projects . The scene of the shooting
of the l aw enforcement officers was such a construction site.

[11] The law enforcement officers were dispatched there specifically to guard the
construction site and to protect the workers on site. In situations like that, a lapse of
judgment and alertness can h ave fatal consequences. Sitting in a stationary marked
vehicle, under the circumstances, became a fatal choice for the new officers . Careful
consideration must have been taken by the accused , so much so that they knew the
officials were ‘new’ and susceptib le to such dangerous choices. The time chosen for
the attack was also an educated consideration. It was as the two law enforcement
officers just returned from lunch. The message from the street gang to the City was
simply that even with your deployment of law enforcement officers, you can’t stop us
for we will kill and rob your guards in broad daylight. It seems to me that t he crime
was intended to intimidate the City into submission to the gangs’ dictates.

[12] In S v Vilakazi Nugent JA stated the following at para 58 :

“In cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background. Once it becomes
clear that the crime is deserving of a substantial period of imprisonment the
questions whether the accused is married or single, whether he has two
children or three, whether or not he is in employment, are in themselves
largely immaterial to what that period should be, and those seem to me to be
the kind of 'flimsy' grounds that Malg as said should be avoided .”

The accused committed heinous offences and they showed no remorse for their
actions. No person should have the ability or power to extra -judicially take another’s
life. The law enforcement officers are there to protect the commu nity including the
property of the State.

[13] The nature of the work of the armed forces in the Republic carries with it high
levels of exposure to potentially traumatic experiences. Recently , especially in
policing, it carried with it the risk of being mercilessly killed by armed criminal gangs.
The experience of colleagues being intentionally killed or seriously injured must have
traumatic consequences among police officers, especially those who must attend to
the scene of such crimes or personally kne w the deceased officer or those who
should bury their friends . The frequency and severity of these life traumatic exposure
in the life of a member of the forces and the impact o f the duty -related death and
serious injury require concomitant responses, including by the courts in sentencing .
This is moreso where the courts must deal with individuals who show no moral
conflict, shame or guilt associated with the taking of someone’s l ife and lives are lost
primarily at the hands of persons who elected to be social maladjustments. In the
case before me, the victims of crime go beyond the blood and affinity relations of the
deceased. The City of Cape Town as a local government, the commu nities served
by the City and its law enforcement officers, the colleagues of the deceased, and all
members of the armed forces especially those involved in policing, are also victims.
It is crucial that the courts continue to be firm in their message that crimes like this
will not be accepted and will instead result in harsh penalties under appropriate
circumstances. That's the case here. It is justified to remove the accused from
society for a significant amount of time. The failures of the foundation pha se
education system to respond to children with learning barriers as well as the time
already spent awaiting trial, over and above the quartet of factors notwithstanding , I
find no substantial and compelling reasons to deviate from the discretionary
prescr ibed minimum sentences. I exercise d my discretion in favour of imposing the
minimum sentences prescribed. For these reasons the sentences were imposed.

Appearances

Counsels for the State: Adv. C Gerster
Counsel for Accused 1 Mr T Mgengwana
Counsel for Accused 2 Adv. J Camphor
Counsel for Accused 3 A Lange
Counsel for Accused 4 C.M Verster


__________________________
DM THULARE
JUDGE OF THE HIGH COURT