IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case No.: CC 64A/2024
Reportable YES/NO
In the matter of:
THE STATE
versus
DYABANA ODWA ACCUSED 1
NGANGELIZWE LUTHANDO ACCUSED 2
QHAYISO SISEKO ACCUSED 4
________________________________________________________________
SENTENCE
________________________________________________________________
Cengani-Mbakaza AJ
[1] On 30 May 2025, this court convicted accused 1,2 and 4 on the following
charges:
Counts 2, 6,7,8 and 9- Kidnapping
Count 3 - Robbery with aggravating circumstances as defined in section
1(1)(b) of the Criminal Procedure Act 51 of 1977.
Count 4 -Pointing of a firearm in contravention of section 120(6) read with
section 1,121 and Schedule 4 of the Firearms Control Act 60 of 2000.
Count 5- Attempted murder
Counts 25,27,28,29 and 30-Unlawful possession of a firearm in contravention
of section 3(1)(a), read with sections 1, 120 (1),121 and Schedule 4, of the
Firearms Control Act 60 of 2000.
Count 34- Unlawful possession of ammunition in contravention of sect ion 90,
read with sections 120 (1), 121 and Schedule 4 of the Firearms Control Act,
60 of 2000.
[2] In addition, accused 1 was convicted of the following charges:
Count 23- Culpable homicide
Count 24 - Reckless driving in contravention of section 63 (1), read with
section 89 (1) and 89 (5) (a) of the National Road Traffic Act No. 93 of 1996.
[3] It is important to mention that accused 3 was found not guilty and discharged
in respect of all charges. Pursuant to the application by the parties, I granted an
adjournment to allow them an opportunity to prepare for sentencing proceedings.
The following outlines the parties’ respective submissions on mitigation and
aggravation.
[4] All accused persons have no previou s convictions. They share similar
circumstances being 27, 30 and 32 years respectively. Their legal representatives
submitted that their youthfulness may have contributed to their poor judgment
leading to the commission of the crimes. Although no submissio ns were made
regarding remorse, it was emphasized that all accused are parents of the minor
children.
[5] Accused 1 has one son, accused 2 has one son and accused 4 has three
children. Despite the children being supported through social grants, so they argued,
the accused’ contribution to their children’s well being should be considered in
mitigation. Another significant point that was highlighted is that accused 1 and 2
have been in custody since F ebruary 2024. A disparity is noted in pretrial detention
of accused 1, 2 and 4 because accused 4 was arrested more recently in 2025 before
the start of this trial.
[6] The parties submitted that considering the accused’ youthfulness and lack of
previous convictions, they have a genuine opportunity for rehabilitation. Additionally,
it was argued that the charges committed demonstrate a single course of conduct
allowing the court, in its discretion to ameliorate the sentences by ordering that some
counts run concurrently or be taken together for sentencing purposes.
[7] Counsel for the state acceded to the application, but emphasized the gravity
of the offences particularly the brazen nature of the daylight robbery, which
demonstrates a blatant disregard of the victims’ human rights. Furthermore, the state
highlighted the severe impact of accused 1’s conduct on the victims. Ms Matross,
one of the passengers, lost her limb, while Mrs Fokeni tragically lost her life. The
state submitted that Mrs Fokeni’s deat h had a profound effect on her family
specifically her adult children, resulting in a significant change to their well -being and
home life.
[8] It is worth noting that sentencing is not governed by rigid rules. Notably,
many sentencing authorities agree that expertise in sentencing is largely acquired
through experience and some guidelines .1 The court’s approach regarding
sentencing was well ar ticulated by DuToit AJ in S v Thonga 2(Thonga). This
approach is paraphrased thus, the primary function of a criminal court is to promote
peaceful coexistence among the members of the society by dispensing justice that
protects life, limb and property. When imposing punishment the trial court must
carefully balance its discretion, avoiding raw revenge or emotional responses in
favour of a reasonable, objective and balanced exercise of its penal powers. Judicial
favour of a reasonable, objective and balanced exercise of its penal powers. Judicial
impartiality is essential to prevent vigilantism and ensure that courts do not succumb
to emotional retribution on behalf of outraged society, instead upholding the rule of
law.
1 “Sentencing General Principles” by BJ King, Justice College, January 2008.
2 1993 (1) SACR 365 (V) at 370( c)-(f).
[9] Du Toit AJ further emphasised that sentencing is not done in isolation but
within the context of society’s values, laws and moral standards.3 A court serves as a
vital component of society, balancing both the community and the offender. In a
civilised society, punishment should reflect not only the need for justice and
accountability but also the offender’s own interests and rehabilitation. In summary,
according to Thonga4 a suitable sentence should meet the four criteria:
reasonableness, balance, consistency and the judicial officer’s discretion.
[10] Apart from the guidelines set out in Thonga5, the principles governing
sentencing have long been settled. In S v Zinn 6 the court expounded what is
commonly known as a triad approach consisting of the nature and seriousness of the
offence, the personal circumstances of the offender as well as the interest of the
society. The Supreme Court of Appeal (SCA) in S v Matyityi7 took a significant step
by emphasising the importance of considering the interests of the victims in
sentencing. The SCA reinforced the principle that we are all equal before the law and
equal protection of the law. Although all these factors are equally i mportant, it is
worth mentioning that a balanced approach is required where each factor is
accorded its due weight without overemphasis or underemphasis.
[11] With these principles in mind I now deal with an appropriate sentence. There
is no doubt that the accused committed violent crimes. Violence is intolerable in our
courts, and to deter would -be offenders, the court must impose sentences that are
sufficiently severe, while also restoring the dignity of those affected. It is well
established that in cases of violent crimes, while sentencing considers various
circumstances, the retributive aspect of punishment often takes precedence,
reflecting the society’s demand for accountability and justice.
[12] This case serves as a learning opportunity on how the South African Police
[12] This case serves as a learning opportunity on how the South African Police
Service ( SAPS) and other law enforcement agencies can effectively collaborate to
3 Ibid
4 Ibid.
5 Supra.fn 2.
6 1969 (2) SA 537.
7 2001 (1) SACR 269 (SCA).
combat the scourge of crime. The community members’ involvement in the pursuit
and investigations of these offences exemplified the ir commitment to uphold the law,
as they refrained from vigilantism despite the brutal circumstances, instead deferring
the SAPS to handle the matter.
[13] Several aggravating circumstances are evident in this case. The offence s
were planned, as demonst rated by the accused ‘calculated actions, which begun
with a deceitful trick about purchasing dogs. The victims were shown no mercy,
subjected to torture, and had their freedom of movement violated. The severity of the
injuries including emotional trauma a s exhibited during the proceedings can hardly
be over -emphasised. Despite the fact that accused 1 was convicted of culpable
homicide, the loss of life is a profound and irreversible consequence that has far -
reaching consequences impacting on the family, c ommunity and the society as it did
in this case.
[14] The role of farming in South African economy cannot be diminished by
criminal actions. Farming has made significant contributions to South Africa’s food
security, job creation and yielding positive o utcomes over the years. It is common
cause that the complainant had over 200 employees during the incident. One of the
complainant’s employees who witnessed these criminal activities advised the court
that he had been working in the farm before the complai nant was born. When he
presented his testimony before court one could see that he was still in distraught
and his loyalty to the proprietary was obvious.
[15] The question that arises is what would have happened to the employees if
the complainant was killed, considering the fact that the accused attempted to do
so? Would they be in a position to find another job? In light of the high
unemployment rate in the co untry, the chances are slim. Although, it is not easy to
list all the aggravating factors due to the brazenness of the crimes committed, it is
list all the aggravating factors due to the brazenness of the crimes committed, it is
crucial to mention that the items stolen at the farm cost over two million rand with
some having recovered.
[16] The complainant’s Landcruiser was written off as a result of accused1’s
reckless driving who indicated before court that he possessed no driver’s licence.
The substantial loss did not affect the complainant only but rather the insurance
company which had to re -imburse his property. The family had to pay an excess
amount of R100 000 signalling the long-term consequences of accused 1’s actions.
[17] The theft of firearms raises serious concerns especially given South Africa’s
high rate of gun violence . It suggests that the accused had malicious intentions,
potentially posing risk to public safety. Our country will not be labelled as a crime
scene due to criminal actions as long as our justice system and community work
effectively together as seen in t his case. Considering all the circumstances
cumulatively, it is fair to conclude that the accused showed no remorse for their
conduct. Despite the overwhelming evidence, namely being caught at the scene, the
fingerprints and Id parades they pleaded not guilty.
[18] In considering the mitigating factors, I have taken into account that the
accused have no previous convictions against them. This suggests lack of previous
engagement in serious criminal behaviour. Although they are not primary caregivers,
they all have minor children who may be affected by the outcome of the case.
Although some jewellery was not recovered, some items were recovered including
the Toyota bakkie which was still in good condition.
[19] Notably, the offences of robbery with aggravating circumstances and
attempted murder carry a minimum sentence of 15 years’ imprisonment each. This is
prescribed by the provisions of the Criminal Law Amendment Act 105 of 199 ,as
amended (the Act). The question is whether the accused have shown the existence
of substantial and compelling circumstances as prescribed by Secti on 51 (3) of the
Act. The SCA in S v Malgas8, held:
‘[9] …the specified sentences were not to be departed from lightly and for flimsy
reasons which could not withstand scrutiny. Speculative hypotheses favourable
to the offender, maudlin sympathy, aversion to imprisoning first offenders ,
to the offender, maudlin sympathy, aversion to imprisoning first offenders ,
personal doubt abou t the efficacy of the policy implicit in the amending
8 (117/2000)[2001]ZASCA30; [2001] 3 All SA 220.
legislation, and like considerations were equally obviously not intended to
qualify as substantial and compelling circumstances.’
[20] In this case, the nature and seriousness of the offences outweigh the
accused’ personal circumstances. Furthermore, no substantial and compelling
circumstances were presented to warrant a departure f rom the minimum sentence
for the charges of robbery with aggravating circumstances and attempted murder.
Instead, neutral factors were submitted, including the period spent by the accused in
pre-trial detention.
[21] Notwithstanding this analysis, it is necessary to invoke the provisions of
section 280 of the CPA which deals with cumulative or concurrent s entences. This
section provides:
‘280 Cumulative or concurrent sentences
(1) When a person is at any trial convicted of two or more offences or when a
person under sentence or undergoing sentence is convicted of another offence,
the court may sentence him to such several punishments for such offences or,
as the case may be, to the punishment for such other offence, as the court is
competent to impose.
(2) Such punishments, when consisting of imprisonment , shall commence the one
after the expiration, setting aside or remission of the other, in such order as the
court may direct, unless the court directs that such sentences of imprisonment
shall run concurrently.’
[22] Consequently the accused are sentenced as follows:
Sentences in respect of accused 1,2 and 4:
1. Counts 2, 6, 7,8 and 9- Kidnapping- Each accused is sentenced to undergo 7
years’ imprisonment (all counts are taken as one for purposes of punishment).
2. Count 3 - Robbery with aggravating circumstances as defined in section
1(1)(b) of the Criminal Procedure Act 51 of 1977 - Each accused is sentenced
to undergo 15 years’ imprisonment.
3. Count 4 -Pointing of a firearm in contravention of section 120(6) read with
section 1,121 and Schedule 4 of the Firearms Control Act 60 of 2000 - Each
accused is sentenced to undergo 12 months imprisonment. This sentence
shall run concurrently with the sentence in count 3 which is robbery with
aggravating circumstances.
4. Count 5 - Attempted murder – Each accused is sentenced to undergo 15
years’ imprisonment. This sentence shall run concurrently with the sentence
in count 3 which is robbery with aggravating circumstances.
5. Counts 25,27,28,29 and 30-Unlawful possession of a firearm in contravention
of section 3(1)(a), read with sections 1, 120 (1),121 and Schedule 4, of the
Firearms Control Act 60 of 2000 - Each accused is sentenced to undergo 2
years’ imprisonment (all counts are taken as one for purposes of punishment).
6. Count 34- Unlawful possession of ammunition in contravention of section 90,
read with sections 120 (1), 121 and Schedule 4 of the Firearms Control Act,
60 of 2000- Each accused is sentenced to undergo 12 months imprisonment.
Sentences in respect of accused 1 only:
7. Count 23- Culpable homicide- The accused is sentenced to undergo 5 years’
imprisonment.
8. Count 24 - Reckless driving in contravention of section 63 (1), read with
section 89 (1) and 89 (5) (a) of the National Road Traffic Act No. 93 of 1996 -
The accused is sentenced to undergo 2 years’ imprisonment. It is ordered that
the sentence in count 24 shall run concurrently with the sentence in count 23.
Effective term of imprisonment:
9. Accused 1 shall serve an effective term of 30 years’ imprisonment.
10. Accused 2 and 4 shall serve an effective term of 25 years’ imprisonment.
11. In terms of the section 103 (1) of the Firearms Control Act 60 of 2000, which
provides for the automatic unfitness to possess a firearm, I make no further
order as the accused are deemed unfi t to possess firearms by operation of
law.
_______________________
N CENGANI-MBAKAZA
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
Counsel for the state : Adv A. Nohiya
DPP, Makhanda
Counsel for accused 1 : Adv A. C. Erasmus
Instructed by : Legal Aid-SA
Counsel for accused 2,3 and 4 : Adv L. Mgudlwa
Instructed by : Legal Aid-SA
Dates Heard : 01 July 2025
Date Delivered : 02 July 2025