IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
Case No. CC10/2017
In the matter between:
THE STATE
and
PHIWOKUHLE MSUTHU Accused No. 1
THANDISIZWE NTUMBUKANA Accused No. 2
WANELE NDLEBE Accused No. 3
MCEBISI POYO Accused No. 4
LUNDI GUMENGE Accused No. 5
WONKE NDLEBE Accused No. 6
___________________________________________________________________
SENTENCE
___________________________________________________________________
JOLWANA J
[1] Various combinations of an armed group of robbers committed three cash in
transit robberies of cash conveyance armoured vehicles from Fidelity Security
Services (Fidelity) in a period of less than two months between 14 September 2015
and 4 November 20 15. These robberies were committed in the O.R. Tambo District
Municipality area on 14 September 2015 in Lusikisiki (the Lusikisiki robbery) on the
R61 main road between Lusikisiki and Port St Johns; on 2 November 2015 in
Ngqeleni at St Barnabas Hospital (t he St Barnabas Hospital robbery) on the R61
main road between Port St Johns and Mthatha; and on 4 November 2015 in Tsolo
(the Tsolo robbery) on the N2 National Road between Tsolo and Mthatha.
[2] Only six accused were charged, presumably the other members of the armed
groups were never found. Of the six accused who were charged, two accused died
before the trial was concluded being accused no.2, Thandisizwe Ntumbukana and
accused no.4, Mcebisi Poyo, the latter having never appeared in this Court. Two
brothers being accused no.3 and 6, Wanele Ndlebe and Wonke Ndlebe respectively,
were acquitted subsequent to an application in terms of section 174 of the Criminal
Procedure Act 51 of 1977 (the CPA). Accused no.1 was also acquitted in terms of
section 174 of th e CPA on two murder charges in which Kuzo Andrea Mapipa and
Mr Yamkela Zoya were killed in a hail of bullets at So What Lounge in Mthatha on1
November 2015 due to insufficient evidence.
[3] At the conclusion of the trial, the two remaining accused being accused no.1 and
5, Phiwokuhle Msuthu and Lundi Gumenge were convicted as follows:
1. Accused no.1
(a) Count 1, aggravated robbery in respect of the Lusikisiki robbery;
(b) Count 2, unlawful possession of a firearm during the Lusikisiki robbery;
(c) Count 7, aggravated robbery in respect of the St Barnabas Hospital robbery;
(d) Count 8, attempted murder of Kwanele Vapi during the St Barnabas
Hospital robbery;
(e) Count 9, attempted murder of Mphumezi Mlenga during the St Barnabas
Hospital robbery;
(f) Count 10, unlawful possession of firearms during the St Barnabas Hospital
robbery;
(g) Count 11, unlawful possession of ammunition during the St Barnabas
Hospital robbery;
(h) Count 12, aggravated robbery in respect of the Tsolo robbery;
(i) Count 13, the murder of Mnikelo Nqeto during the Tsolo robbery;
(j) Count 15, aggravated robbery of the Mercedes Benz ML63 of Mr & Mrs
Jama during the Tsolo robbery;
(k) Count 16, unlawful possession of firearms during the Tsolo robbery and the
high jacking of Mrs Jama’s vehicle;
(l) Count 17, unlawful possession of ammunition during the Tsolo robbery and
the high jacking of Mr and Mrs Jama’s vehicle;
2. Accused no.5
(a) Count 7, aggravated robbery in respect of St Barnabas Hospital robbery;
(b) Count 8, the at tempted murder of Wanele Vapi during the St Barnabas
Hospital robbery;
(c) Count 9, the attempted murder of Mphumezi Mlenga during the St Barnabas
Hospital robbery;
(d) Count 10, the unlawful possession of firearms during the St Barnabas
Hospital robbery;
(e) Count 11, unlawful possession of ammunition during the St Barnabas
Hospital robbery;
(f) Count 12, aggravated robbery in respect of the Tsolo robbery;
(g) Count 13, the murder of Mnikelo Nqeto during the Tsolo robbery;
(h) Count 15, aggravated robbery of Mr and Mrs Jama during the Tsolo
robbery;
(i) Count 16, unlawful possession of firearms in respect of the high jacking of Mr
and Mrs Jama’s vehicle;
(j) Count 17, unlawful possession of ammunition in respect of the high jacking
of Mr & Mrs Jama’s vehicle during the Tsolo robbery.
This Court is now faced with the onerous task of considering and imposing
appropriate sentences on each accused for each offence for which they have been
convicted being guided by all the trite sentencing principles and in particular, the Zinn
triad which is similarly trite and needs no explanation.
[4] These types of offences are some of the most serious and heinous crimes that
can be committed by an accused person. Not only are they very serious offences,
the legislat ure, in recognition of their seriousness, has also prescribed minimum
sentences in respect of some of them. For that reason, in the accused’s indictment,
the State invoked the provisions of section 51 of the Criminal Law Amendment Act
105 of 1997 (the Mini mum Sentences Act). The parts of section 51 of the Minimum
Sentences Act which are relevant for the purposes of these offences reads:
“(1) Notwithstanding, any other law, but subject to subsections (3) and (6), 9 regional
court or a High Court shall senten ce a person it has convicted of an offence referred
to in Part 1 of Schedule 2 to imprisonment for life.
(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court
or a High Court shall sentence a person who has been convicted of an offence referred
to in-
(a) Part II of Schedule 2, in the case of –
(i) a first offender, to imprisonment for a period not less than 15 years;
…
(3) (a) If any court referred to in subsections (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser sentence
than the sentence prescribed in those subsections, it shall enter those
circumstances on the record of the proceedings… .”
[5] Part I of Schedule 2 of the Minimum Sentences Act reads:
“Murder, when
(a) it was planned or premeditated,
…
(b) the death of the victim was caused by the accused in committing or attempting to
commit or after having committed one of the following offences:
(i) … ;
(ii) robbery with aggravating cir cumstances as defined in section 1 of the
Criminal Procedure Act (Act 51 of 1977);
Attempted murder, in circumstances referred to in paragraphs (a) to (g) of the offence of
‘murder’. ”
[6] The relevant part of Part II of Schedule 2 reads as follows:
“Robbery –
(a) where there are aggravating circumstances.
….”
[7] Both accused elected not to testify and instead of testifying, Mr Potgieter, their
counsel, made submissions on their behalf. In doing so, he started by the personal
circumstances of accused no.1 which he listed as follows:
1. Accused no.1 is now 39 years old and was 30 years old when he was
arrested;
2. He is married in terms of customary law;
3. He is a father of four children from different mothers. The oldest of them is
19 years old and the youngest is 10 years old;
4. At the time of his arrest he had a construction company and a security
company;
5. Because of his incarceration since 31 January 2016 when he was arrested,
to date, which is now 3 months short of 10 years awaiting trial in prison,
those companies are no longer in operational;
6. Due to his incarceration, he did not contribute to the maintenance of his
children. He also lost contact with them altogether and in the almost 10
years he has been in incarceration, he did not have any contact with his
children.
7. He has no previous convictions.
[8] The personal circumstances of accused no.5 are as follows:
1. He is 41 years old and he was 31 years old or so and when he was
arrested on 31 January 2016;
2. He is in a civil marriage with his wife Christina Gumenge;
3. He has five children from different mothers. The oldest child is 16 years of
age and the youngest is 9 years old;
4. He was gainfully employed at the time of his arrest. He has not been
supporting any of his children since his incarceration;
5. He had limited contact with two of his children by making telephone calls to
them when he was able to do so using a phone of the prison but completely
lost contact his three other children;
6. He has a previous conviction of assault for which he received a suspended
sentence. That sentence fell away in 2022 because of automatic
expungement;
7. He is therefore a first offender.
[9] Mr Potgieter did not make separate and individualised submissions on beha lf of
the two accused persons. He made a joint submission for both accused save for the
issue relating to accused no.5 having been shot in the leg by the police during his
arrest in Cape Town. His submissions started with the acknowledgement that the
minimum sentences provided for in the Minimum Sentences Act are applicable for
some of the offences. His submissions in the main were about the fact that the
accused were and have been in pre-sentence incarceration for almost 10 years since
their arrest on 31 January 2016 awaiting trial and are first offenders. In those
circumstances, it was submitted that life imprisonment would be disproportionate and
that the court should exercise his discretion and depart from the imposition of the
prescribed minimum sente nces. Furthermore, he submitted that both accused are
first offenders including accused no.5 who, for all intents and purposes, is also a first
offender as the conviction for assault is no longer relevant for the purposes of the
sentence in this matter due to automatic expungement.
[10] It was submitted that they had confessed to the crimes for which they were later
convicted and therefore, they were remorseful. It was also submitted that the
Lusikisiki robbery was an inside job. I am not sure what the po int being made was
about the Lusikisiki robbery being an inside job. In any event, what makes matters
worse as far as that robbery being an inside job is concerned is that Anele Gqweta, a
section 204 witness, testified that it was accused no.1 who initiat ed the whole idea
and planned its execution after asking for his cooperation in planning and executing
it. This, accused no.1 did by starting a conversation with Anele Gqweta asking him
to assist him in robbing a Fidelity armoured vehicle which would be d riven by Anele
Gqweta who was employed as a driver at Fidelity on 14 September 2015. Accused
no.1 planned that robbery using the inside information he, Anele Gqweta, provided at
his request. Accused no.1’s planning included organising other criminals from Cape
Town and other places. The whole group was well prepared with different assortment
of firearms and ammunition. It can surely not be to accused no.1’s advantage for
purposes of sentence that he convinced Anele Gqweta to join a brainchild of his
which happened to be a criminal enterprise.
[11] It would not be unreasonable to conclude that accused no.1 was the so called
ringleader in all three robberies which appear to have been meticulously planned
with a clear decision that the fire power the groups had with them was not for mere
scare mongering or even self -defence during their criminal enterprises, but for the
groups to shoot their way into the safes of the Fidelity armoured vehicles even if that
meant killing any or all the Fidelity employees ma nning those vehicles. I say this
because between the two remaining accused, of all the other members of the
groups he was always the common denominator. This is so because he was present
in all three robberies. In his confession, nowhere does he indicate that he was invited
into joining the criminal enterprises by anyone else including the others who were not
arrested.
[12] Furthermore, he happens to be one of those familiar with both the Eastern Cape
and the Western Cape where other gang members were o rganised from by him. He
is also the only known for having a working knowledge of cash conveyance vehicle
operations as he has been an employee in that industry in the past. He, together with
some of the members of the group, were arrested in Cape Town whe re they went
into hiding after realising that that police were hot on their heels. He was the one
who knew Anele Gqweta and it was him who came with the late accused no.2 when
they met in Fortgale and on Norwood shortly before the execution of the Lusikis iki
robbery. I cannot accept the proposition that a person who decides to form part of a
criminal enterprise whether or not he or she is invited into it or initiates it should
benefit from the fact that it was an inside job. This is besides the fact that in this
case he is the one who lured Anele Gqweta into what was his initial idea.
Furthermore, accused no.1 was also part of both the St Barnabas Hospital and the
Tsolo robberies in which there was no inside man. My sense is that with or without
Anele Gqweta in the Lusikisiki robbery, he would still have been part of it as he was
in respect of the other two robberies in which there was no inside assistance.
[13] I have enormous difficulties in understanding an argument made on behalf of the
accused the effect of which was that because they spent almost ten years in pre -
sentence incarceration as awaiting trial prisoners, that should suffice as a substantial
and compelling circumstance. I am not aware of an accused person who is convicted
being automatically entitled to receive a lesser sentence on account of any period
spent in prison while awaiting trial. Differently put, I am not aware of any legal
position that the time spent in prison as an awaiting trial prisoner should
automatically resu lt in a departure from prescribed minimum sentences. What I do
understand to be the position is that the time spent in prison awaiting trial is but one
of the many factors that, together with other considerations, could be part of the
whole combination of circumstances in a particular matter which should also be
considered and which could all sway a sentencing court into departing from imposing
a prescribed minimum sentence.
[14] The correct legal position on what amounts to substantial and compelling
circumstances was captured with eloquence and precision in Pillay1 in which the
court said:
“When sentencing an accused person, a court has to evaluate all the evidence,
including the mitigating and aggravating factors, to decide whether substantial and
compelling circumstances exist. A court must be conscious of the fact that the
legislature has ordained a particular sentence for such an offence and there must be
truly convincing reasons to depart therefrom which reasons must be stipulated on the
record.
It is for this reason that the courts have not attempted to define what is meant by
substantial and compelling circumstances. This is in keeping with the principle that
the imposition of sentence is pre-eminently the domain of a sentencing court. A court
must consider all the circumstances of the case, including the many factors
traditionally taken into account by courts when sentencing offenders. For
circumstances to qualify as substantial and compelling, they need not be ‘exceptional’
in the sense that the y are seldom encountered or rare, nor are they limited to those
which diminish the moral guilt of the offender.
Where a court is convinced, that after consideration of all the factors, an injustice
would be done if the minimum sentence is imposed, then it can characterise such
would be done if the minimum sentence is imposed, then it can characterise such
factors as constituting substantial and compelling circumstances and deviate from
imposing the prescribed minimum sentences.
1 S v Pillay 2018 (2) SACR 192 (KZD) at paragraphs 9-12.
In S v Vilakazi the court explained that particular factors, whether aggravating or
mitigating, should not be taken individually and in isolation as substantial or
compelling circumstances. Ultimately, in deciding whether substantial and compelling
circumstances exist, one must look at traditional mitigating and aggravating factor
and consider the cumulative effe ct thereof. When sentencing, a court takes into
account the personal circumstances of an accused. However, only some of these
carry sufficient weight to tip the scales in favour of the accused to impact on the
sentence to be imposed. Often the fact that t he accused is young and is a first
offender has the effect of reducing a sentence, as there is potential for the offender
not to repeat the crime and to be rehabilitated.”
[15] No submission at all was made as part of the initial submissions made on behalf
of the two accused persons regarding remorse. That could only be because the
accused were simply not remorseful. In any event I never even got even a whiff of
remorse on their part about what they did throughout. This is in addition to their
rather surpr ising failure to testify in mitigation of sentence and explain the
circumstances which could have led to them acting so brazenly and what has
happened since their arrest and detention. One would have thought that after
spending almost 10 years in prison as awaiting trial prisoners, they would have a lot
to say about anything they would have learnt in prison or even the value of freedom
away from prison cells which they had enjoyed up to the age of about 30 years or so
before they were arrested. Their four and five children that they have with different
mothers were mentioned in passing as was the fact that there was very limited to no
contact with those children for almost 10 years with no indication of what this has
meant to them as fathers. While it cann ot be said with any degree of certainty, the
meant to them as fathers. While it cann ot be said with any degree of certainty, the
accused appeared to be indifferent about their experiences in prison and the time
they have spent there; their loss of freedom and their yearning for it; their inability to
contribute to the upbringing of their children etcetera. Nothing much was said about
the role, if any, they played in the lives of their children before their arrest. Nothing
was said about their families and what has been happening in their family lives since
their arrest.
[16] Even the issue of remorse was raised belatedly in reply by their counsel after
counsel for the State submitted that the accused have not showed any remorse
whatsoever. As a belated attempt was made to submit, inarticulately, in light of the
accused having made confessio n statements which this Court ruled admissible was
a weighty remorse consideration. I must point out that even an accused pleading
guilty to a crime in respect of which minimum sentences are applicable, does not,
without more, meet the standard of substan tial and compelling circumstances. In my
view, an accused person who confesses to crimes as the two accused did, but who
later disavows the voluntariness with which the said confessions were obtained,
cannot opportunistically rely on those confession for p urposes of a lesser sentence
being imposed. The accused’s’ disavowal of the voluntariness of their confessions
led to a very lengthy trial within a trial. That contributed quite significant to the delays
in the running and conclusion of the trial and ther efore the almost ten year period
they have been in incarceration awaiting trial.
[17] Still on the issue of the almost ten year period the accused have been in prison
awaiting trial, as the State correctly pointed out, the accused changed their legal
representatives a number of times. That also contributed quite significantly to the
delays in the speedy conclusion of their trial. It also did not help that the accused
pleaded with this Court to allow them to be represented by a legal representative of
their choice who happened to be from Gauteng, who at that late stage, was Mr
Potgieter. Incidentally, Mr Potgieter has a very busy practice and was not available
for quite some time and the court accommodated the accused desire to be
represented by him by makin g one of many long postponements at their instance. It
should be borne in mind that each time a new legal representative is instructed, he
has to be provided with the docket, the exhibits, and all the transcribed of the
voluminous record from inception w hich he needed time to familiarise himself to the
point of understanding the full picture. All of this was done and had to happen to
avoid prejudice to the accused and also to protect their fair trial rights.
[18] There is another difficult issue with the submission made on behalf of the
accused about the almost 10 year period spent in pre -sentence incarceration. As I
understood it, the submission was that in order to compensate and as the
submission went, also in order to create proportionality, the court should make an
order that the period spent in pre -sentence incarceration should be accounted for by
an order being made indicating that the accused should qualify to be considered for
parole at an earlier time commensurate with the almost ten year period they spent in
prison while awaiting the conclusion of their trial. For this rather unusual proposition,
reliance was placed on the Constitutional Court judgment of Phaahla2. The court’s
attention was drawn specifically to the last portion of paragraph 70 which reads:
“…[I]f parole is part of the punishment, as we have held that it is, then the relevant
date must be the date of the offence. This accords with s 35(3)(n), which provides
that if the punishment has changed between date of offence and date of sentence,
the accused has the right to the benefit of the least severe of the two punishments.
The relevant dates are those of the commission of the offence and those of
sentencing, the date of conviction does not enter the equation. For these reasons, the
applicant’s proposition should win the day: punishment, and parole eligibility, should
be determined by the date of commission of the offence.”
[19] On any reading of this excerpt from Phaahla, it has nothing to do with the
[19] On any reading of this excerpt from Phaahla, it has nothing to do with the
consideration of substantial and compelling circumstances or the consideration of the
sentence to be imposed by a sentencing court. That submission is clearly misplaced.
2 Phaahla v Minister of justice and Correctional Services and Another 2019 (2) SACR 88 (CC) para 70.
In my view, what the Constitutional Court said in Phaahla is not part of the equation
for purposes of considering an appropriate sentence. It is also no authority for the
sentencing court making a pre -determination of the commencement date of parole
eligibility consideration. If the proposition made on behalf o f the accused were to be
followed, its unwieldiness and the incongruities in its implementation resulting in
unequal treatment of offenders is glaring.
[20] When submissions were made during the sentencing proceedings, the accused
indicated to the court t hat they wanted to give a specific instruction to counsel which
they were allowed to do. It turned out that in order to deal with the State’s
submission that they were largely responsible for trial delays due to the number of
times they changed legal repr esentation, they wanted counsel to draw the attention
of the court to the fact that it also often happened that there were also a number of
delays in the police transporting them from Wellington Correctional Centre about 120
kilometres away where they were detained to Butterworth where this Court was
sitting on circuit. To count all the hours of each delay and translate them into days,
and other causes of postponements, or court adjournments would not only be an
unwieldly process if it were to be implemente d but also it would require a clear
legislative regulation to ensure consistency.
[21] My understanding is that the period an accused person spent in prison while
awaiting trial is one of the factors that, together with all other personal circumstances
of the accused, and the entirety of the circumstances of the case should be
considered in arriving at an appropriate sentence. It does not, on its own, entitle an
accused person to either an automatic departure from a prescribed minimum
sentence or an automa tic reduction of the sentence that the court would have
imposed if there were no delays in the conclusion of the trial. In Dlamini3 the court
made it clear that the period an accused person spent in custody while awaiting
completion of his trial should b e taken into account in deciding on an appropriate
sentence. There were a number of postponements that occurred in this matter at the
instance of the accused themselves including the more or less two year delay when
submissions on the merits were delayed b ecause their counsel felt he needed more
time to prepare and conduct research on the constitutionality of section 217 of the
CPA. Therefore, any suggestion, directly or indirectly that the State was largely
responsible for the inordinately long period the accused spent in prison while
awaiting trial is not borne out by the facts.
[22] This brings me to the seriousness of the offences that the accused have been
convicted on. As counsel for the State submitted, cash in transit robberies are
unfortunately not only very serious crimes but are regrettably very prevalent, not just
in the jurisdiction of this Court but throughout the country. In this case the accused
armed themselves with high calibre automatic rifles and other assortment of firearms
which were used in attacking the Fidelity cash conveyance vehicles especially during
the St Barnabas Hospital and Tsolo robberies. During the St Barnabas Hospital
robbery, a group of armed robbers started shooting at the Fidelity vehicle on the
public road outside the hospital. The security officers in that vehicle drove into the
hospital premises in an attempt to run away from the assailants. Undeterred, the
accused and their co -assailants continued pummelling the Fidelity armoured vehicle
with heavy gunfire repeate dly. In doing so, they had no regard at all if those inside
the Fidelity vehicle or the medical personnel and patients in that hospital were killed
in the process. As a result, Mr Kwanele Vapi who was the driver of that vehicle was
3 Dlamini v S 2012(2) SACR 1 (SCA) para 41
struck by one bullet an d decided to drive into the hospital which was about 500
metres away at the time. His evidence was that heavy gunfire continued right into
the hospital premises while being chased by a one or more vehicles of the assailants
until the end of the road insid e the hospital where heavy gunfire by the robbers
continued.
[23] The assailants alighted from their vehicle and continued shooting the Fidelity
vehicle which had stopped by that time. During that heavy gunfire inside the
hospital, Mr Mlenga was struck by one bullet while inside the vehicle. When the
assailants left, he and his colleague alighted and found that a cash box had been
stolen. During the Tsolo robbery, not only was Mr Mnikelo Nqeto shot and killed
while running away and therefore posing no da nger to the accused and their co -
robbers, but also Mr Zola Mphako was shot and fell on the road. Mphako was
fetched from where he had fallen on the road and brought to the Fidelity vehicle and
was forced to call their office to get a code to open the safe of the cash van. The third
Fidelity employee, Mr Vuyisile Mandoyi spent three months in hospital being treated
for a gunshot wound. The point is that the accused demonstrated that they would
stop at nothing and would kill the Fidelity employees in order to steal the money from
the cash vans if they stood in their way. The only incident in which no shooting
occurred was the Lusikisiki robbery because it also involved a Fidelity employee,
Anele Gqweta. During that robbery the assailants stole R2.5million a nd also stole
firearms belonging to Fidelity which were in possession of Fidelity security personnel.
These incidents took place on public roads and during the Tsolo robbery, the N2
national road was completely blocked during until the accused and other me mbers of
the group highjacked Mr and Mrs Jama’s vehicle which they used as a getaway
vehicle. All three robberies took place in a period of less than two months. The fear
that must have been instilled in members of the public during the brazen robberies i s
unimaginable as is the manner in which public order and the rule of law were
spectacularly undermined.
[24] In the final analysis, it being common cause that the prescribed minimum
sentences are applicable for some of the offences, the question is whet her or not the
accused have come up with truly convincing reasons for this Court to depart
therefrom. Nothing in the personal circumstances of the accused was said that
would justify a departure from the prescribed minimum sentences. Their personal
circumstances, even considered cumulatively, are not the kind of circumstances that
would justify a departure because they are neither substantial nor compelling.
Departure from the prescribed minimum sentences is not to be done for the reasons
of the ilk submit ted on behalf of the accused and I have carefully considered each
one of them.
[25] I am emboldened in my conclusion that there are no substantial and compelling
circumstances that have been raised by the two accused by the legal position on this
issue as articulated about 15 years ago by the Supreme Court of Appeal in Matyityi4
where the court said:
“Despite certain limited successes there has been no real let -up in the crime
pandemic that engulfs our country. The situation continues to be alarming. It follows
that, to borrow from Malgas, it still is ‘no longer business as usual’. And yet one
notices all too frequently a willingness on the part of sentencing courts to deviate
from the minimum sentences prescribed by the legislature for the flimsiest rea sons,
as here, that do not survive scrutiny. As Malgas makes plain courts have a duty,
despite any personal doubts about the efficacy of the policy or personal aversion to it,
to implement those sentences. Our courts derive their power from the Constitut ion
and like other arms of state owe their fealty to it. Our constitutional order can hardly
4 S v Matyityi 2011(1) SACR 40 (SCA) para 25.
survive if courts fail to properly patrol the boundaries of their own power by showing
due deference to the legitimate domain of power of the other arms of state. Here
parliament has spoken. It has ordained minimum sentences for certain specified
offences. Courts are obliged to impose those sentences unless there are truly
convincing reasons for departing from them. Courts are not free to subvert the will of
the legislature by resort to vague, ill -defined concepts such as ‘relative youthfulness’
or other equally vague and ill -founded hypotheses that appear to fit the particular
sentencing officer’s personal notion of fairness. Predictable outcomes, not outcomes
based on the whim of an individual judicial officer, is foundational to the rule of law
which lies at the heart of our constitutional order.”
[21] In all the circumstances the accused are sentenced as follows:
1. Count 2, unlawful possession of a firearm during the Lusikisiki robbery,
accused no.1 is sentenced to 5 years imprisonment.
2. Count 1, aggravated robbery in respect of the Lusikisiki robbery accused
no.1 is sentenced to 15 years imprisonment.
3. Counts 10 and 11, unlawful possession of f irearms and ammunition during
the St Barnabas Hospital robbery, both accused are sentenced to 5 years
imprisonment.
4. Count 7, the aggravated robbery in respect of the St Barnabas Hospital
robbery, both accused are each sentenced to 15 years imprisonment.
5. Counts 8 and 9, the attempted murders of Kwanele Vapi and Mphumzi
Mlenga during the St Barnabas Hospital robbery, both accused are each
sentenced to 20 years imprisonment.
6. Counts 16 and 17, the unlawful possession of firearms and ammunition
during t he Tsolo robbery, both accused are sentenced to 5 years
imprisonment each.
7. Count 12, the aggravated robbery of the Mercedes Benz ML 63 of Mr and
Mrs Jama, both accused are each sentenced to 15 years imprisonment.
8. Count 13, the murder of Mr Mnikelo Nq eto during the Tsolo robbery, both
accused are each sentenced to life imprisonment.
9. In terms of section 39(2) of the Correctional Services Act, all the sentences
shall run concurrently with the sentence of life imprisonment.
10. In terms of section 103 of the Firearms Control Act 60 of 2000 both accused
are declared unfit to possess firearms.
_________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearance
Counsel for the State : M.L Makubalo
Instructed by : NPA
MTHATHA
Counsel for the accused no.’s 1 and 5: H.J Potgieter
Instructed by : Groenewald Attorneys
GAUTENG
Date of hearing : 27 October 2025
Date delivered : 31 October 2025