IN THE HIGH COURT OF SOUTH AFRICA ,
GAUTENG DIVISION, PRETORIA
CASE NO: CC41/2024
(1) REPORTABLE: YES~ ,✓,-:;-:::-)
(2) OF INTEREST TO OTHER JUDGES: YE~
1;,\ :r:<-c. ··~ ············ ··\;A TE ~ URE
In the matter between:
THE STATE
And
RASIE HLABIRWA NKUNE Accused 1
MOTHIBE JACOB CHEGO Accused 2
JUDGMENT ON SENTENCE
MAKAMU J
2
Introduction
The accused 1 has been convicted of several counts, amongst others including two
counts of contravening Section 18(2) of the Riotous Assemblies Act 17 of 1956
(Conspiracy to commit murder), two counts of murder, two counts of robbery with
aggravating circumstances , four counts of kidnapping, defeating the ends of justice
and fraud. Accused 2 has been convicted of two counts of contravening Section 18(2)
of the Riotous Assemblies Act 17 of 1956 (Conspiracy to commit murder), two counts
of murder, kidnapping and fraud.
Personal circumstances of the accused
(1] The accused 1 was approximately 38 years of age at the time of arrest; he is
currently 40 years of age. He has a previous conviction for possession of a firearm
without a license or permit or authorization and unlawful possession of ammunition.
He is not married and has three minor children, aged 13, 9, and 3. He is self-employed
in the construction business, and he is qualified as a boilermaker. He was incarcerated
on unspecified charges shortly before committing these crimes. After committing these
crimes, he was on the run for approximately 2 years.
[2] The accused, 2, is 44 years of age. At the time of arrest, he was employed as
a police officer in Mbombela , attached to the VICU , and served as an investigating
officer. He has since been discharged from active police service. He is married and
has three children, one from his relationship before he got married; she is 24 years of
age. He has two children, aged 14 and 9, respectively . His wife had a child before they
married, whom he raised as his own; she is 25 years of age, so technically he has four
children.
The deceased and victims of crime
[3] The deceased , Mr. Mogashoa and his deceased wife Mrs. Mogashoa were 35
years and 34 years respectively at the time of their deaths . They were married and
had two children and were expecting a third.
3
[4] The deceased were self-employed at the time of their deaths, leaving two minor
children.
Factors to be considered
[5] The court should take into account the triad as set out in S v Zinn 19691,
consisting of the seriousness of the crime, the personal circumstances of the accused,
and the interests of society, and also add the interests of the victims.
[6] This is one of the heinous crimes committed by the accused for no acceptable
explanation except greed and because he felt he could do it. There was no reason
whatsoever why a young couple's lives could be cut short in such a brutal manner.
[7] The accused planned the crimes and executed the murder in a very brutal
manner. The charge of conspiracy to murder carries the same sentence as actual
murder. In S v Mokoena and Others2 , Moleleki AJ stated:
"Conspiracy to commit robbery is an extremely serious offense, which carries
the same penalty as the substantive crime of robbery itself."
[8] The accused 1 stated emphatically that he is not remorseful, as he maintains
that he is not guilty of any offense; accordingly, I am not going to deal with the question
of remorse. Accused 2 also did not express remorse in his mitigation of sentence.
[9] Expression of remorse does not translate to the admission of guilt but is
described in S v Matyityi 20113 Ponan JA stated:
"There is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not, without more,
translate into genuine remorse. Remorse is gnawing pain of conscience for the
plight of another. Thus, genuine contrition can only come from appreciation and
1 S v Zinn 1969 (2) SA 537 (A)
2 S v Mokoena and others (CC25 /24) [2026) ZANPMBH C 36
3 S v Matyityi 2011 (1) SACR 40 (SCA)
4
acknowledgment of the extent of one's error. Whether the offender is sincerely
remorseful and not simply feeling sorry for himself or herself at having been
caught is a factual question. It is to the surrounding actions of the accused,
rather than what he/she says in court, that one should look."
Application of the minimum prescribed sentence
[1 O] The charges of conspiracy to commit murder, murder and robbery with
aggravating circumstances attract the prescribed minimum sentence, in terms of
section 51 (1 )4 and 51 (2)5 of the Criminal Law Amendment Act, unless the accused
are able to demonstrate substantial and compelling circumstances that would
persuade the court to deviate from such a sentence.
[11] In S v Ma/gas 20016, it is stated that:
"Section 51 has limited but not eliminated the court's discretion in imposing
sentence in respect of offences referred to in Part 1 Schedule 2 for
imprisonment for other specified periods for offences listed in other parts of
Schedule 2. Courts are required to approach the imposition of sentence
conscious that the Legislature has ordained life imprisonment (or the particular
prescribed period of imprisonment) as the sentence that should ordinarily and
in the absence of weighty justification be imposed for the listed crimes in
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, standardized and consistent response from
the courts. The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypothesis favourable to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation, and marginal differences in
4 Criminal Law Amendment Act, 105 of 1997, s51 (1 )
5 Criminal Law Amendment Act, 105 of 1997, s51 (2)
6 S v Malgas 2001 (1) SACR 469, para g-h
5
personal circumstances or degrees of participation between co-offenders are
to be excluded."
[12] Both accused adduced personal circumstances that are not sufficiently
substantial or compelling to warrant a deviation from the prescribed minimum
sentence; however, the court has a duty to check whether any factors may be
considered substantial and compelling to warrant such a deviation.
[13] In S v Obisi 20057, the court stated that:
"The nature of the crime, the brazenness, the callousness, and the brutality of
the appellant's conduct show that he attaches no value to other people's lives,
or physical integrity, or to their dignity."
[14] The fact that accused 2 was not proved to have been at the scene is insufficient,
as the doctrine of common purpose suggests that he aligned himself with the overall
plan. The plan was to eliminate any challenge to the vehicle's ownership by the actual
owner, Mr. Mogashoa. In R v Blom 193gs, the court stated:
"In reasoning by inference, there are two cardinal rules of logic which cannot
be ignored:
1. The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
2. The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the inference
sought to be drawn is correct".
This is the only inference that one can draw as to the reason why the accused decided
to kill the deceased.
7 S v Obisi 2005 (2) SACR 350 (WLD), para 15
8 R v Blom 1939 AD, p 202-203
6
[15) The plan was carefully orchestrated and executed so that no one could later
come and claim the vehicle, as it was already in the possession of the accused 1 's
girlfriend, Pretty Mazibuko.
[16) I considered the reports from two clinical psychologists regarding accused 1
and the probation officer's report regarding accused 2. Accused 1 told Ms. Thabiso
Mercy Ntshangase and Ms. Favourite Selepe that he would not cooperate with them
in compiling his reports. Whereas accused 2 cooperated with the probation officer.
[17) Both clinical psychologists classified accused 1 as extremely dangerous and
needing to be removed from society, and even the probation officer recommended
that accused 2 be sentenced in terms of the minimum sentence.
[18) The victims and family members of the victims murdered in this matter wrote
statements expressing the loss and the tragedy of losing the loved ones under terrible
circumstances. The deceased were still young, trying to build their nuclear family
without forgetting where they came from.
[19) Both the deceased had ambitions to grow in business and professionally. They
intended to grow in their careers; unfortunately, their lives had to be terminated in the
most gruesome and brutal manner, having done nothing to deserve such death.
[20) The accused were not directly charged for the death of the baby who was still
in her mother's womb. The medical assessment indicated that she was already a
recognizable person who could have survived if she had been born at that stage. The
State ought to have charged the accused with murder of the unborn child too. The
Court's hands are tied and cannot impose a sentence on the charge that was not
preferred against the accused persons.
[21) The death caused a division between Mogashoa and Zwane families, where
there was a conflict regarding the burial of Ms. Mogashoa. The families of Mogashoa
and Zwane will almost certainly not survive the trauma of losing their loved ones in
and Zwane will almost certainly not survive the trauma of losing their loved ones in
such a violent manner. There was no psychological assessment of the parents of
family members, except that they expressed themselves in their statements, which
statements are devoid of professional articulation of their pain, loss and sorrow.
7
[22] The little TM who witnessed the killing suffered extreme trauma as he watched
the parents' lives taken away violently. Only God knows how he will guide him away
from violence due to his experience. He stated that the loss affected him at school;
his grades started to drop, and he had to attend extra lessons.
[23] The little sister was too young to acknowledge the trauma, but she will grow up
not knowing her parents, although I do not doubt that the grandparents are doing their
best to minimize the pain of the loss.
[24] Dumisane Zwane, the father of Ms. Mogashoa, expressed his loss in his victim
impact statement. He felt the loss and described how his grandchildren would be
raised without knowing their parents. He started to use supplements to survive the
trauma. He explained how he had a legal battle with the Mogashoa family to be
allowed to bury his daughter. He also suffered serious financial loss in that battle.
[25] He raised his murdered daughter in church, where she developed as a singer
in a praise and worship band and keyboard player, and he also bought Mr. Mogashoa
digital drums to encourage them as worshippers in church.
[26] Rachel Zwane, the mother of the deceased Ms. Mogashoa, was a practicing
midwife at the time of the incident. She was running her own practice, which suffered
tremendously. She, like her husband, survived on supplements to cope with the loss.
She developed health issues as a result of the loss. She suffered financially as her
turnover was radically reduced. She also reported that TM started to wet his blankets
a tendency which he did not have prior to the death of his parents. This can be
attributed to the trauma he suffered.
[27] The death of the couple caused massive disruption in the two families. The
mother of Mr. Lucky Mogashoa also had a business which could not proceed after
Lucky's death. She fell into depression, and now she is on chronic medication. The
siblings of Mr Lucky Mogashoa and Mrs Sabelisiwe Mogashoa were assisted by them
siblings of Mr Lucky Mogashoa and Mrs Sabelisiwe Mogashoa were assisted by them
to go through their education respectively, but they had to drop out due to a lack of
funds, as the couple's death left the well dry.
8
[28] The deceased Mr Lucky Mogashoa was busy building a house for his parents,
but that came to a standstill due to his passing, so his death had a ripple effect in the
entire family of Mogashoa and Zwane.
[29] Lydia Puseletso Mokoena, the sister of the deceased Lucky Mogashoa,
expressed her loss in the victim impact statement. She stated that Lucky Mogashoa
was a caring brother who was shouldering the responsibility of raising his siblings and
helping them experience a better life, and that all those dreams had just been
extinguished.
[30] The court has a duty to impose an appropriate sentence fearlessly, and that
should not be influenced by the opinions of society. In S v Mhlakaza 9 1997, Harms JA
stated:
"Although these views, as formulated, cannot be criticized, it is necessary to
express a general note of caution. The object of sentencing is not to satisfy
public opinion but to serve the public interest ... A sentencing policy that caters
predominantly or exclusively for public opinion is inherently flawed. It remains
the court's duty to impose fearlessly an appropriate and fair sentence even if
the sentence does not satisfy the public. In this context the approach expressed
in S v Makwanyane and Another 1995 (2) SACR 1 (CC) at 38-39, paras 87-89
(per Chaska/son P) applies mutatis mutandis: public opinion may have some
relevance to the enquiry, but, in itself, it is no substitute for the duty vested in
the court; the court cannot allow itself to be diverted from its duty to act as an
independent arbiter by making choices on the basis that they will find favour
with the public .
11
[31] The public may hold its views on the sentence to be imposed, but based on the
reasoning of the SCA and the Constitutional Court, it would be a flawed policy to follow.
[32] The court should impose as follows, as cited in S v Kumalo 197310:
"Punishment must fit the criminal as well as the crime, be fair to society and be
blended with a measure of mercy according to the circumstances .
11
blended with a measure of mercy according to the circumstances .
11
9 S v Mhlakaza 1997 (1) SACR 515 (SCA), p 158 at para e-f
1 o S v Kumalo 1973 (3) SA 697 (A)
9
[33) The accused 2 provided a correctional supervision report that suggests that
indeed accused 2 has a support structure for him to be sentenced to correctional
supervision; however, the correctional officer does not dwell on the gravity of the
offence committed to suggest any other form of punishment or sentence, but that is
provided for by the probation officer.
[34) In a very serious and heinous crime like the present, correctional supervision is
way off the mark of an appropriate sentence. As stated in Mhlakaza 11:
"Given the current levels of violence and serious crimes in this country, it seems
proper that, in sentencing especially such crimes, the emphasis should be on
retribution and deterrence . Retribution may even be decisive ."
[35) The accused 1 has been in custody since 12 April 2024, and that was solely
because of this case; as such, that period cannot be counted in the accused's favor.
[36) As stated, the court must find substantial and compelling circumstances to
deviate from the prescribed minimum sentence; so far, nothing has been found from
both accused, even when the court embarked on a search for the same. There are no
substantial and compelling circumstances to deviate from the prescribed minimum
sentence.
[37) I think it is worth mentioning the dedication of the young investigating officer,
Sergeant Mathenjwa, who did a sterling job in tying the knots together to link the
perpetrators to the crimes. He has outdone himself, and it is the breed that is scarce
in our current police service. He can be compared to the late Piet Beyleveld, a
respected, dedicated police officer who became known nationwide for his excellent
service. He must be encouraged to keep up his good work to save this country from
the rot.
[38) I therefore have concluded that the following sentence will be appropriate ...
11 S v Mhlakaza 1997 (1) SACR 515 (SCA), p 519 at para a-e
10
Order
I hereby make the following order:
Accused 1
1. Count 1 - 2: (Conspiracy to commit murder), contravening section 18(2)(a) of
the Riotous Assemblies Act 17 of 1956, sentenced to life imprisonment on each
count.
2. Count 3 - 4: Murder read with the provisions of section 51 (1) and read with Part
1 of Schedule 2 (sub-par (a), (b)) of the Criminal Law Amendment Act, 105 of
1997 as amended, sentenced to life imprisonment on each count.
3. Count 5 - 8: Kidnapping, five (5) years imprisonment on each count.
4. Count 9 - 10: Robbery with aggravating circumstances, sentenced to fifteen
(15) years imprisonment on each count.
5. Count 11: Fraud, five (5) years imprisonment.
6. Count 12: Defeating and/or obstructing the course of justice and/or the
administration of justice, sentenced to five (5) years imprisonment.
In terms of section 280(2) of the Criminal Procedure Act, 51 of 1977, the court orders
that sentences on counts 5 to 12 run concurrently with the sentence on count 4.
In terms of section 103 of the Firearms Control Act 60 of 2000, the court makes no
order; as such, the accused remains unfit to possess a firearm.
Accused 2
1. Count 1 - 2: (Conspiracy to commit murder), contravening section 18(2)(a) of
the Riotous Assemblies Act 17 of 1956, sentenced to life imprisonment on each
count.
2. Count 3 - 4: Murder read with the provisions of section 51 (1) and read with Part
1 of Schedule 2 (sub-par (a), (b)) of the Criminal Law Amendment Act, 105 of
1997 as amended, sentenced to life imprisonment on each count.
3. Count 5 - 8: Kidnapping, sentenced to five (5) years' imprisonment on each
count.
4. Count 11: Fraud, sentenced to five (5) years' imprisonment.
11
5. Count 12: Defeating and/or obstructing the course of justice and/or the
administration of justice, sentenced to five (5) years' imprisonment.
In terms of section 280(2) of the Criminal Procedure Act 51 of 1977, the court orders
that the sentences in counts 5-8 and 11-12 run concurrently with the sentences in
counts 1- 4.
In terms of section 103 of the Firearms Control Act 60 of 2000, the court makes no
order; as such, the accused remains unfit to possess a firearm.
MS MAKAMU
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
12
Appearance on behalf of the State
Adv T. Sekhonyana
Appearance on behalf of Accused 1
Ms. A Simpson (Legal Aid)
Appearance on behalf of Accused 2
Adv De Necker