S v Mncengi and Others (SS03/2013) [2014] ZAWCHC 214 (24 March 2014)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2014
>>
[2014] ZAWCHC 214
|

|

S v Mncengi and Others (SS03/2013) [2014] ZAWCHC 214 (24 March 2014)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER: SS03/2013
DATE: 24 MARCH 2015
In the matter between:
THE STATE
And
MZIWABANTU MADIBA
MNCWENGI
..............................................................................
Accused
1
MZIMASI MADIBA
MNCWENGI
........................................................................................
Accused
2
BUYELWA NOKWANDISA
MNCWENGI
...........................................................................
Accused
3
LUMKO
BAMBALAZA
..........................................................................................................
Accused
4
XOLANI
MAKAPELA
............................................................................................................
Accused
5
MAWANDE
SIBOMA
..............................................................................................................
Accused
6
S E N T E N C E
BOQWANA, J:
INTRODUCTION
The accused were all convicted of 3
counts of kidnapping and 3 counts of murder of Sivuyile Rola,
(hereinafter referred to as ‘Mshwele’),
Luxolo
Mpontshane, (hereinafter referred to as ‘Luxolo’) and
Mabhuti Matinise, (hereinafter referred to as ‘Mabhuti’).

In addition to that accused 1, 2, 3 and 4 were convicted of assault
with intent to cause grievous bodily harm of Mphuthumi Nobanda,

(hereinafter referred to as ‘Mphuthumi’), who is now
deceased in circumstances not related to this case.
This is one of those sad and
unfortunate cases that have become known as vengeance or vigilante
killings. This particular case involves
the kidnapping and killing of
3 young men, namely Mshwele, Luxolo and Mabhuti, who were allegedly
known to be troublemakers in
Harare, Khayelitsha and the assault of
Mphuthumi who managed to free himself and run away. This all began
because of a stolen
TV belonging to accused 1. The Court deals with
the offences more fully later.
The principles applicable in
determining a fair, balanced and appropriate sentence are trite.
‘What has to be considered
is the triad consisting of the
crime, the offender and the interest of society’. See S v Zinn
1969 (2) SA 537
(A) at 540G.
In determining an appropriate sentence
regard must be had, inter alia, to the main purposes of punishment.
These were described
in R v Swanepoel 1945 (AD) 444 at 455 as
deterrent, preventative, reformative and retributive. In S v Rabie
1975 (4) SA 855
(A) at 862A-B reference was made to Gordon, Criminal
Law of Scotland 1967 at 50 where it was stated that: ‘The
retributive
theory finds the justification for punishment in a past
act, a wrong which requires punishment or expiation... The other
theories,
reformative, preventative and deterrent all find their
justification in the future in the good that what produce as a result
of
the punishment’.
In S v Khumalo and Others
[1984] ZASCA 30
;
1984 (3) SA
327
(AD) at 330 E, referring to R v Swanepoel supra the Court held
that deterrence was the “essential”, “all
important”,
“paramount” and “universally
admitted” object of punishment. The Court in that matter
further held that
the other purposes of punishment are accessory to
deterrence. In this regard it made reference to R v Karg
1961 (1) SA
231
(A) at 236A-B where it was held that while the deterrent effect
of punishment has remained as important as ever, the retributive

effect, whilst by no means absent from the modern approach to
sentencing, has tended to yield ground to aspects of prevention and

correction. It was however pointed out in the Karg decision 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. When determining an appropriate

sentence there is as was pointed out in S v Rabie supra at 861D, a
duty on the presiding judicial officer to approach the determination

with a mindset of mercy or compassion or plain humanity.
The accused were convicted of serious
offences including, inter alia, murder in respect of which, in this
case, section 51(1), read
with Part I(d) of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
prescribes a minimum sentence
of life imprisonment, given that the offence was committed in the
execution or furtherance of a common
purpose.
In terms of
section 51(3)(a)
, if a
Court is satisfied that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence
than the
sentence prescribed, it shall enter those circumstances on the record
of the proceedings and must thereupon impose such
lesser sentence.
For a Court to come to that conclusion it must consider the totality
of the evidence together with other relevant
factors traditionally
taken into account when sentencing, together with the principles set
out above.
Witnesses were called in mitigation of
sentence on behalf of the accused, with the exception of accused 3
and 6. Accused 1 called
Nowayizeti Mqathane, his sister, as a
witness to testify on his behalf in mitigation of sentence. Accused
2 testified on his own
behalf. Accused 4 called his brother,
Tembelani Bambalaza as a witness to testify in mitigation of
sentence. Babalwa Makaphela
was called as a witness for accused 5.
Accused 3 and 6 did not testify or call witnesses but argument in
mitigation was given
by their legal representatives ex parte.
All defence counsel requested an
opportunity to arrange for pre-sentencing reports and proceedings
were adjourned for that purpose.
Ms Chantel Clarke, (hereinafter
referred to as ‘Ms Clarke’), who is a Probation Officer,
prepared and presented reports
in respect of accused 1 and 2.
Probation officer’s reports in respect of accused 3, 4, 5 and 6
were prepared and presented
by Ms Astrid Leandra Klaasse,
(hereinafter referred to as ‘Ms Klaasse’).
The Correctional Supervision reports in
respect of all the accused were prepared and presented by Ms Ncediswa
Sentile, (hereinafter
referred to as ‘Ms Sentile’). Ms
Clarke and Klaase as well as Ms Sentile testified on their reports.
THE OFFENCES
Dealing with the offences. Evidence
indicated that the deceased were brutally assaulted over a sustained
period of time in circumstances
which showed a deliberate and brazen
disregard, not only for the deceased’s individual rights of
liberty, dignity and bodily
security but also for the rule of law.
The victims were tied either with ropes and / or wires and brazenly
assaulted whilst in
a helpless state. One of the bodies was found
with burn wounds. The post-mortem examination by Dr Anthony revealed
that the victims
must have suffered a great deal. According to Dr
Anthony the head injuries and rib fractures were indicative of a
considerable
amount of force. The internal contusions of the lungs
and liver would have caused a lot of pain. The deceased were
bleeding profusely
from their heads at the time they were at accused
1’s place and seen leaving with a bakkie for the last time with
the accused.
The argument preferred by some of the
defence counsel that the deceased were merely being taught a lesson
because they were known
troublemakers in the community that is marred
with criminal elements, cannot be sustained in the face of evidence
showing the gruesome
nature of the assaults. This is clearly not a
case of the so-called thugs being chastised by members of the
community by being
given ‘a hiding’ or a few lashes or a
beating and being ‘let go’ thereafter, which behaviour is
of course
also not condoned.
The deceased were assaulted by the
accused repeatedly, and not by a mob of community members. Community
members in fact were by-standers
who, according to the State
witnesses, were concerned about the assaults and just wanted the
stolen TV to be found. At some point
they pleaded with the accused
concerned to stop beating the deceased, saying that their parents
should pay for the TV. As the
bakkie was leaving they were shouting
‘please do not kill them.’
There was evidence that a committee
structure existed in the community. According to the witnesses, when
allegations of theft are
reported to the members of the committee
they would hold a meeting, interrogate the suspects and ‘beat’
them if they
were not telling the truth. This apparently occurred at
a place called Ezinkukwini. However, there is no evidence of any
committee
meeting taking place in the present matter where the young
men were interrogated by the committee members about the missing TV
and a decision being taken to beat them. Accused 2 mentioned that he
reported the stolen TV to the committee but there is no evidence
that
the victims were taken to the committee. At all material times the
crimes were perpetrated by accused 1 and his family members,
accused
2 and 3, with the assistance of the other accused.The accused acted
on untested information and rumours that the deceased
were the
culprits who stole the TV. Even if the deceased were known thugs and
troublemakers within the community, they did not
deserve to be
mercilessly tortured and killed in such a manner. It is so that,
after all the ordeal, the TV was never found.
It is still not known
where the TV is and it was not conclusively established that the
three young men were the culprits, yet they
lost their lives in the
process.
The accused continued to assault them
even after they were bleeding profusely, and the TV not found and
drove off with them, leaving
them to die in a secluded area at
Macassar Sand Dunes, unattended. The medical evidence showed that
exposure and blood loss contributed
to their death, which was as a
result of multiple injuries in respect of Luxolo and Mabhuti and a
head injury and consequences
thereof in respect of Mshwele.
ROLES PLAYED BY EACH OF THE ACCUSED IN
THE COMMISSION OF THE CRIME
Mr Colenso for accused 5 implored the
Court to consider the role played by accused 5 in the commission of
the offences and the exculpatory
parts of his statements. Whilst
maintaining his presence throughout the events, in short, accused 5,
in his statements, exculpated
himself by saying that he and / or
another community member tried to stop the assaults and asked the
victims to tell the truth
so that the beatings could stop, at some
point he was confused and watching whilst the assaults were taking
place and he never
played any role in the assaults. According to Ms
Sentile, who compiled the correctional supervision report accused 5
told her
that:‘he admits guilt to this offence, he accepts the
responsibility for the offence and he takes responsibility for his

actions.’ The accused informed her that if his parents were
still alive he was going to ask them to visit the families of
the
victims and apologise for what happened on his behalf. In
cross-examination Ms Sentile further explained that when interviewing

accused 5 in prison he told her that:
‘He was involved in the crime and
that he was there all the way. He did everything, he assaulted, he
kidnapped and then he
also murdered the accused.’
Reference to ‘murder the accused’
is obviously an error, it should be deceased. See page 4763 of the
record.
According to Ms Klaasse, who prepared
the probation officers report, accused 5 however did not take any
responsibility for the commission
of the offences.
Mr Colenso in support of his
submissions that the alleged role played by accused 5 in the
commission of the offences should be taken
into account referred to
the judgment of S v Ningi and Another 127/99 2000 ZACSA 184, (29
September 2000) where the Court said
the following at paragraph 9:
“It follows that for the purpose
of sentence it must be accepted that the appellants participated in
the activities of the
mob only at a very late stage and indeed after
the real damage had been done. This limited degree of participation
must, furthermore,
be seen in the context of events which preceded
the attack on dormitory 25. The attack was in retaliation for the
earlier attack
on dormitory 11. To this extent there was clearly a
measure of provocation. In all the circumstances it seems to me that
this
is an appropriate case to refer back to the Regional Magistrate
to consider imposing a sentence under
section 276(1)(h)
of Act 51 of
1977.”
Firstly, the Ningi decision is
distinguishable in that the accused in that case participated only at
a late stage after the real
damage had been done. Secondly, the
exculpatory parts in the statements of accused 5 were not repeated
under oath and tested in
cross-examination. Same applies to accused
6. In this regard see Litako and Others v S
2014 (2) SACR 431
(SCA)
at paragraphs 65 and 66. Thirdly, what the accused told Ms Sentile
was also not repeated under oath and it furthermore contradicts
the
exculpatory parts of his statement as well as what he told the
probation officer.
Moreover, in this instance, events
continued from accused 1’s place and the bridge where witnesses
observed what each of the
accused were doing, to when all the accused
left with the three deceased on the bakkie, injured and bleeding,
which was the last
time they were seen alive until their bodies were
found in Macassar Sand Dunes. The Court made findings based on
direct evidence
and inferential reasoning that all the accused acted
together with common purpose and actively associated themselves in
the commission
of the offences.
Accused 1, 2, 3 and 4 that testified
denied any involvement in the commission of the offences. Throughout
the case the accused
distanced themselves from the commission of the
offences and denied any involvement in the killing of the deceased.
The Court
found their versions to be a fabrication and false.
Accused 5 and 6 elected not to testify. No testimony was placed on
record
by anyone, including the accused, showing any roles that any
of them played in the commission of the crimes after they left the

bridge to look for the TV and after the bakkie left for the last time
from accused 1’s place with all three deceased bleeding
until
the discovery of their bodies at Macassar Sand Dunes. This is
therefore not a matter to impute degrees of participation
or roles
played by the individual accused in committing the crimes.
THE CONTEXT IN WHICH THE CRIMES WERE
COMMITTED AND THE INTEREST OF THE COMMUNITY
It has been argued that Khayelitsha
residents take the law in their own hands because of police
inefficiency. However, as far as
this case is concerned none of the
accused testified that they assaulted the deceased because of police
not attending to their
calls or because police tended to ignore or
turn a blind eye to criminal conduct. In fact, accused 1, 2, 3 and 4
denied assaulting
the victims. Accused 5 and 6 did not testify. It
is clear from the evidence that from the outset the reason for the
assaults
was to get information and to trace the missing television.
It is also important to note that the assaults took place only four

days after the theft was reported to the police.
Be that as it may, Lindelwa Nobanda and
Lithule Mafethe testified that they called the police when the ordeal
was taking place at
accused 1’s place on the day in question
and police never came. Members of the South African Police Services
who testified
in Court could not confirm such reports. The Court
takes into account the fact that the crimes in question took place in
a context
of a Khayelitsha community that experiences crimes of theft
on a regular basis. In this regard, the Court takes note of the
findings
of the Khayelitsha commission report published in 2014,
which found that vengeance killings of vigilantism is high in that
community
due to slow or non-responsive action of the police to calls
or complaints made by community members and perceived police
inefficiency,
among other reasons.
Vigilante cases have featured many
times in our Courts. One of the more recent cases is that of S v
Dikqacwi SS49/2012
2013 ZAWCHC 67
, (15 April 2013) where Binns-Ward,
J referred to case law and literature that examined vigilante
behaviour, which literature suggests
that vigilante behaviour results
primarily from lack of confidence in the criminal justice system,
mainly in under-resourced communities.
Reference is made to the
decision of S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
at para
[168]
a judgment made in the beginnings of the constitutional democracy.
In that case the Court held as follows:
“Members of the public are
understandably concerned, often frightened for their life and safety
in a society where the incidents
of violent crime is high and the
rate of apprehension and conviction of perpetrators low. This is a
pressing public concern.
However important it undoubtedly is to
emphasise the constitutional importance of individual rights there is
a danger that the
other leg of the constitutional State compact may
not enjoy the recognition it deserves. I refer to the fact that in a
constitutional
State individuals agree(in principle at least) to
abandon their rights to self-help in the protection of their rights
only because
the state in the constitutional State compact assumes
the obligation to protect these rights. If the State fails to
discharge
this duty adequately, there is a danger that individuals
might feel justified in using self-help to protect their rights.
This
is not a fanciful possibility in South Africa.”
At paragraph 4 Binns-Ward, J observed
as follows:
“It is evident that the crimes
were committed in a peculiar social context. The commission of the
crimes is a manifestation
of a broad problem affecting a large
section of South African society, notably those living in the wildly
impoverished, densely
populated and under-resourced townships in our
cities like Khayelitsha and Philippi, that is of persons and
communities taking
over and carrying out themselves the functions
that in a properly functioning society would be discharged by the
criminal justice
system- the police and the Courts. One is made
aware of instances of mob justice and vigilantism almost daily
through the media.
Furthermore, although its establishment is a
matter of controversy and the subject of pending litigation it is
well-known locally
that the provincial government has seen fit to
appoint a commission of enquiry headed by a retired Constitutional
Court judge and
a former National Director of Public Prosecutions
into the causes and consequences of the alleged shortcomings of the
criminal
justice system - in particular policing in - the
Khayelitsha area of Cape Town. Council on both sides made passing
references
to the existence of the commission. This, if nothing
else, supports the profile of the problem as a salient current
issue.”
Whilst it is understood by the Court
that accused 1 lost his plasma TV which he must have valued, which
was allegedly stolen by
habitual offenders, vengeance of the kind
committed by the accused cannot be condoned by civil society.
Crime levels in our country are
unacceptably high. Khayelitsha, as can be gleaned from reports of
the Probation Officers has the
second highest murder rate in the
country with 286 murders reported over the period of 2011 / 2012. It
has been reported that
20 vigilante related deaths occurred in
Khayelitsha during 2012. In this regard see Civil Society Prison
Reform Initiative Community
Law Centre Submission for Phase 1 of
Commission of Enquiry into allegations of Police Inefficiency in
Khayelitsha at paragraph
4 annexed to the Probation Officers report
for accused 1.
The Court must take into account the
public’s interests in seeing that convicted criminals are
adequately punished and seen
to be adequately punished for the crimes
they committed. In this regard see S v X
1996 (2) SACR 288
(W) at
289c-d.
The accused had no regard for human
life. The Court needs to send a clear message that criminal conduct
of this nature will not
be tolerated. Sentences must boost the
confidence of the public in our Courts and the criminal justice
system. This however does
not mean that accused must be sacrificed
in the name of deterrence. Appropriate sentences must fit the
offence, the offender and
the interest of the society. See S v SMM
2013 (2) SACR 292
(SCA) at 303a.
In S v Mhlakaza and Another
1997 (1)
SACR 515
(SCA) at 518E-G the Court held that: “The object of
sentencing is not to satisfy public opinion but to serve the public
interests.” It further held that: “It remains the
Court’s duty to impose fearlessly an appropriate and fair

sentence even if the sentence does not satisfy the public.”
REMORSE
The issue of remorse was raised.
Remorse remains an important factor. Remorse or lack thereof must
however not be overemphasised
in relation to the other factors that
must be considered. There are many reasons why remorse may or may
not be shown. It is trite
that if the accused shows genuine remorse
punishment will be accommodating, especially when the accused has
taken steps to translate
his or her remorse into action. Remorse is
an indication that the accused has realised that a wrong was done and
has to that extent
been rehabilitated. See S v Brand
1998 (1) SACR
296
(C) at 304a-d. Remorse is only a valid consideration at sentence
if the contrition is sincere and the accused takes the Court fully

into his or her confidence. See S v Matyityi
2011 (1) SACR 40
(SCA)
at para [13]. In the Court’s view, lack of remorse, whilst it
is relevant, must however not be accorded undue weight.
Pre-sentencing reports confirm that all
the accused except accused 5, at the stage of the drafting of the
reports still persisted
to deny any involvement in the killing of the
deceased and showed no remorse. Accused 5 advised Ms Sentile that he
was remorseful
and admitted guilt. That however was not repeated
under oath by him in Court and tested, as it has already been stated.
It remains
the say-so of the correctional officer. Accused 5
reportedly did not accept any responsibility when interviewed by the
probation
officer. Accused 6 reportedly showed emotion and cried
when interviewed by the probation officer. It is however clear from
the
report and from Ms Klaasse’s evidence that accused 6 was
not remorseful about the plight of the victims but was feeling sorry

for himself. He maintained his denial in the involvement of the
kidnapping and the killing of the deceased.
IMPACT ON THE DECEASED’S
FAMILIES
Ms Klaasse reported that she consulted
with the family members of the deceased. The families are reportedly
very hurt and angry
about losing their loved ones. They struggle to
deal with the loss. The probation officer has promised to link the
families with
a counselling centre in Khayelitsha in order to work
through their bottled up emotions of over the past two years.
PERSONAL CIRCUMSTANCES OF THE
OFFENDERS
The personal circumstances of the
accused, as per the evidence led on behalf of the accused and
argument relating thereto as well
as information set out in the
presentencing reports were taken into account.
ACCUSED 1
Starting with accused 1, he is
currently 49 years old and was 47 years old at the time of the
commission of the offences. He was
born in Cofimvaba in the Eastern
Cape. He is the second of four children and is the older brother of
accused 2. He grew up in
a stable family. His father has passed
away and his mother, who is 80 years old, lives in the Eastern Cape.
The accused has 5
children with the ages of 21, 16, 11, 7 and 6 years
old. The accused was described as a loving, responsible, caring
father and
the pillar of the family. He is divorced. He was a
breadwinner who financially supported his mother who is ill, his
children
and his extended family. The accused attended school at
Nquqhu Primary School in the Eastern Cape until grade 8. He left
school
due to financial constraints to look after his father’s
cattle. He moved to Cape Town in 1980 to seek employment. He then

went to Gauteng and worked in a mine for three years. Thereafter he
moved back to Cape Town and worked for the Argus selling newspapers

and Golden Arrow as a driver for 9 years. At the time of his arrest
he owned two taxis, one of which was driven by his brother,
accused
2. One of the taxis has since been repossessed due to his
incarceration. He was financially stable and owned a Vodacom

container. He attended Zion church and was studying to be a
traditional healer. The accused lived in a one bedroom shack
situated
next to accused 2’s house. The accused has no
previous convictions. He was arrested on 15 March 2012 and has been
in custody
since then.
ACCUSED 2
Accused 2 is a 41 year old man, married
to accused 3. He was 38 at the time of the commission of the crime.
He has no children.
He was born in Cofimvaba in the Eastern Cape and
is the third of four children. He is accused 1’s brother. He
shares a
close bond with his brother. He attended school at Nquqhu
Primary School in the Eastern Cape. He left school in grade 7 due to

financial constraints as his mother was the breadwinner with his
brother contributing. He also took care of his parents cattle
when
he left school. When he moved to Cape Town he worked as a tiler in
Hout Bay. He commenced working as a taxi driver for his
brother
during 2003 / 2004. He was the only breadwinner as his wife was not
employed. He also supported his mother and extended
family. The
accused attended Zion church. He was described as a quiet man who is
always willing to help in the community. The
accused has no previous
convictions. He was out on bail until his conviction on 19 November
2014.
ACCUSED 3
Accused 3 is a 35 year old woman soon
to turn 36 on 26 March 2015. She was also born in Cofimvaba in the
Eastern Cape. She was
32 years old at the time of the commission of
the offence. She is married to accused 2 and they have no children.
She is the
last born of three children. She was raised by her
mother, who is now deceased, as her father passed away when she was 2
months
old. Her one sibling passed away and the whereabouts of the
surviving brother is unknown. The accused had a good upbringing.

She completed grade 10 at Nonkqubela High School in Lady Frere in the
Eastern Cape. She is unemployed and depended on her husband,
accused
2, for financial support. She depended on her husband’s family
for emotional support as she had no immediate family
members. The
accused, her husband and her brother-in-law were reportedly regarded
as very respectable people in the community.
The accused has no
previous convictions. She was arrested on 15 March 2012 and has been
in custody since then.
ACCUSED 4
Accused 4 is 41 years old and was 38 at
the time of the commission of the offence. He was born in Cofimvaba
in the Eastern Cape
and is the third of six children born of his
deceased parents. He was brought up in a stable family with strong
Christian values.
He completed grade 12 at Blawood Institution in
Nqamakwe in the Eastern Cape. He moved to Cape Town in 1996 and
completed two
Carpentry courses at Thornton and Northlink College.
He is married and has two children with his wife, aged 22 and 27 and
two
others with different women with ages 3 and 7. He owned a house
in Khayelitsha which is currently occupied by his sister and her

daughter who is mentally challenged. He became self-employed in 2008
and owned an entity called Bambalaza Construction Company,
after a
company he had been working for, for a period of three years
collapsed. His business was reportedly successful and he
maintained
himself and his family financially. He employed 20 people in his
company and subcontractors. He was reportedly very
active in the
community and involved in issues concerning community upliftment. He
was a member of a street committee and ward
development forum in 2010
/ 2011 and once helped the police locate a perpetrator of a crime in
2009 involving missing children
who were later found dead. The
accused was described as a pillar of strength by his family. He has
no previous convictions and
has been in custody since 15 March 2012.
ACCUSED 5
Accused 5 is a 39 year old man and was
36 at the time of the commission of the crimes. He was born in Alice
in the Eastern Cape.
He is the third child of the six children from
his deceased parents. He reportedly comes from a close-knit and
stable family.
He completed grade 12 in 1996 at Siyabonga Secondary
School. He did not continue with tertiary education as he had to
look after
his siblings financially. His family mainly resided in
Fish Hoek. He moved to Cape Town in 1997. He started working as a
ticket
controller for Metrorail and has been on and off employment at
various places. He became self-employed in 2010 buying and selling

clothing. He is unmarried and has two children ages 17 and 7. The
accused supported his children and family financially. He
had an
interest in sport and coached an under 20 women’s rugby team.
He loved reggae music but did not practice Rastafarian
religion
despite being called Rasta. The accused has no previous convictions
and has been in custody since 29 August 2012.
ACCUSED 6
Accused 6 is 27 years old and was 24
years old at the time of the commission of the offences. He was born
in Cape Town and is the
first of three children born of his parents
who are still both alive. His upbringing was reportedly good. He
passed grade 8 at
Ezangweni High School in Khayelitsha. He lived
with his parents in his own shack situated in their yard. He
temporarily assisted
his father with brick-laying and thereafter
opened his own shebeen in 2010. He supported his children
financially when he could
and his family also depended on him
financially. He is unmarried and has two children with the ages of 4
and 5 years old. The
accused has no previous convictions. He was on
bail in relation to this case until his conviction on 19 November
2014.
SUBSTANTIAL AND COMPELLING
CIRCUMSTANCES
In the seminal case of S v Malgas
2001
(1) SACR 469
(SCA) at page 481G-482F the Supreme Court of Appeal laid
down certain guidelines that the Court should consider when deciding
whether
substantial and compelling circumstances are present which
justify the imposition of a lesser sentence.
The Court, after having considered the
totality of the evidence, comes to the conclusion that there are
compelling and substantial
circumstances justifying deviation from
the prescribed minimum sentence of life imprisonment in respect of
the murder charges and
the imposition of lesser sentences than the
minimum sentences prescribed in the
Criminal Law Amendment Act. It
can be seen from the personal circumstances of all the accused that
all of them were productive and / or respected members of the

society. They contributed to the well-being of their families and the
society and after their conviction in this case had never
been on the
wrong side of the law. Furthermore, the social context in which
these crimes were committed, namely, that of a community
beset with
crime resulting in a high incidence of vigilantism is also relevant
as the Court has already found. The fact that accused
1’s
television was stolen by the so-called ‘troublemakers’ is
a relevant factor whilst not an excuse. The stolen
TV spurred
accused 1 and the other accused to take action against those
suspected to have been culprits. There is no evidence
that murder
was premeditated or planned as the State submitted. Premeditation to
murder was in any event not an allegation in
the charge sheet. The
accused sought to find a TV from the outset but then carried on
assaulting the young men for a prolonged
period to the point of their
death, and furthermore left them to die in a secluded area with no
help and where no one could easily
find them. The accused were all
found guilty of murder on the basis of dolus eventualis having acted
with common purpose.
PERIOD IN CUSTODY AWAITING
FINALISATION OF THE TRIAL
The Court also takes into account that
accused 1, 3 and 4 were in detention awaiting finalisation of the
trial for almost 3 years
and accused 5 for more than 2 years. In the
decision of Director of Public Prosecutions North Gauteng Pretoria v
Gewala and Others
2014 (2) SACR 337
(SCA) at para 16 the Court
approving of the findings made in S v Radebe and Another
2013 (2)
SACR 165
(SCA) at paras 13 and 14, held that there should be no rule
of thumb in respect of the calculation of the weight to be given to

the period spent in detention awaiting trial. The Court held that:
“A mechanical formula to
determine the extent to which the proposed sentence should be
reduced, by reason of the period of
detention prior to conviction, is
unhelpful. The circumstances of an individual accused must be
assessed in each case in determining
the extent to which the sentence
proposed should be reduced. It should be noted that this Court left
open the question of how
to approach the matter in S v Dlamini
2012
(2) SACR 1
(SCA) paragraph 41.”
It was held that a better approach is
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 should be imposed as justified, i.e.
whether it is proportionate
to the crime committed. The test is not
whether on its own that period of detention constitutes a substantial
or compelling circumstance
but whether the effective sentence
proposes proportionate to the crime or crimes committed and whether
the sentence in all the
circumstances, including the period spent in
detention prior to conviction and sentencing, is a just one.
Ultimately, the trial
Court should determine whether, in view of all
the factors, substantial and compelling circumstances existed,
justifying imposition
of a sentence lesser than that prescribed by
the Legislator. The number of years spent in custody prior to the
trial by accused
1, 3, 4 and 5 is taken into account as a factor
amongst others, warranting deviation from the prescribed sentence.
The Court is
also mindful of the few months that accused 2 and 6 have
spent in prison since their conviction.
APPROPRIATE SENTENCE
All defence counsel submitted that the
appropriate sentence in the circumstances would be correctional
supervision in terms of section
276(1)(i) of the Criminal Procedure
Act, which provides for imprisonment from which such a convicted
person may be placed under
correctional supervision in the discretion
of the Commissioner or the Parole Board.
Correctional supervision must be used
in appropriate cases. In S v Bergh
2006 (2) SACR 225
(N) at 235e,
the Court observed that the legislature has, by introducing
correctional supervision as a sentencing option, distinguished

between two types of offenders, namely, those who ought to be removed
from society by means of imprisonment, and those who, although

deserving of punishment, should not be removed from society.
Probation officers’ reports that
were requested by the defence in respect of all the accused did not
consider correctional
supervision and / or suspended sentences to be
appropriate in the circumstances, considering the seriousness of the
offences, the
fact that the accused did not accept responsibility for
the actions, the impact the death of the three deceased had on their
families
and the prominence of the crimes in Khayelitsha area. The
probations officers recommended direct imprisonment as an appropriate

sentence. Defence counsel contended that lack of remorse and
seriousness of the case were overemphasised by the probation
officers.
The Court deals with its view on this aspect later.
Correctional supervision reports
recommended that all the accused with the exception of accused 5 are
not suitable candidates for
placement on a sentence of correctional
supervision in terms of section 276(1)(h) of the Criminal Procedure
Act having regard to
the fact that the accused did not show any
remorse for their actions. When challenged on the question of
remorse under cross-examination,
Ms Sentile testified that remorse
was an important consideration because there would be no purpose of
implementing rehabilitation
programs if a person claims to have done
nothing wrong.
The Court has considered the
pre-sentencing reports and the evidence in relation thereto and is of
the view that there were no grounds
for questioning the quality and /
or value of the experts’ opinions. Their opinions have been
properly motivated and comprehensive.
Whilst the Court retains its
discretion on the appropriate sentence, the information and
recommendations contained in those reports
have been quite valuable.
Defence counsel also referred to the
decision of Dikqacwi and, most importantly, to the effect that
correctional supervision and
non-custodial sentences were imposed in
that decision. They however lose sight of the fact that in that case
minimum sentence
legislation was not applicable. It is apposite to
refer to a passage in Dikqacwi judgment confirming this fact. The
Court held
as follows in paragraph 7:
“Now in Schrich the phenomenon of
vigilantism was dealt with in a sentencing context in connection with
the interest of the
community component of the Zinn triad. It was
recognised that the phenomenon is fundamentally incompatible with the
sort of society
that the values of the constitution seek to establish
and thus cannot be condoned and tolerated. In the result it was
considered
that severe punishments were indicated for offences
committed as part of vigilantism. There can be no quarrel with that,
in principle.
The same approach, as a matter of principle, had
indeed already been adopted in both the majority and minority
judgments of the
Supreme Court of Appeal in S v Thebus and Another
2002 (2) SACR 566
(SCA). The latter case was one in which the
prescribed minimum sentences regime in terms of the
Criminal Law
Amendment Act 105 of 1997
applied. In a case like the current
matter, where a prescribed sentencing regime does not apply, the
approach still begs the question
what form of severe punishment. It
is by no means axiomatic that lengthy terms of direct imprisonment
afford the only appropriate
response.”
In Dikqacwi, unlike in this case, the
prescribed sentencing regime did not apply. Furthermore, the
offences committed by the accused
in the Dikqacwi case were less
serious than in the present matter.
The Court is of the view that in light
of the seriousness of the offences and the provisions of the Minimum
Sentences legislation,
correctional supervision would not be an
appropriate sentence. The fact that accused 5 was deemed suitable to
be placed on a correctional
supervision sentence in terms of section
276 (1)(h) of the Criminal Procedure Act by Ms Sentile does not
necessarily mean that
such sentence is the appropriate one in the
circumstances.
A message must be sent out that those
who are intent on bringing their own brand of justice to bear on
communities, without regard
for the lives of others, of the law and
of order, will face the full force of the law. See S v Thebus and
Another
2002 (2) SACR 566
(SCA) at paragraph 33. The accused
participated in cruel actions that led to tragic deaths of three
young men. Even though the
three deceased were known to be
troublemakers in their communities; they still were sons and brothers
of their families. They
also, like any other person, had rights in
terms of the Constitution and the law, to life and liberty.
Vigilantism can never be tolerated by
the Courts and people should never be allowed, despite the
circumstances, to take the law
in their own hands. Whilst the Court
has taken into consideration the circumstances under which these
offences occurred, the fact
remains that three young men were
deprived of their liberty and murdered.
Aggravating circumstances of this case
are that the deceased were brutally assaulted over a period of time
on the day of the commission
of the offences and that the accused
persisted not to take responsibility for their actions and to show
any remorse. In the Court’s
view direct imprisonment is the
only appropriate sentence in light of the circumstances of this case
in respect of the murder charges.
As regards the counts of kidnapping,
the Court took into account that the deceased were kidnapped in the
afternoon in the process
of finding the TV, tied up, whilst being
assaulted, driven up and down in the bakkie for long periods of time
to different places
until they were found dead. In view of all the
circumstances the Court also finds direct imprisonment to be an
appropriate sentence
for these offences.
In respect of the assault with intent
to do grievous bodily harm on Mphuthumi, the Court finds that in
light of the evidence led
during the trial, including the fact that
Mphuthumi managed to free himself and run away, taken together with
all the other factors
relevant to sentencing, the imposition of a
suspended sentenced would be just and appropriate.
CONCLUSION
Having considered all the relevant
circumstances before imposing sentence, the Court will take into
account the cumulative effect
of the sentences that the Court will
impose and as a show of mercy will order that certain sentences run
concurrently.
In the result the following sentences
are imposed:
ACCUSED 1:
ON COUNTS 1, 2 AND 3 OF KIDNAPPING, THE
THREE COUNTS TAKEN TOGETHER FOR PURPOSES OF SENTENCE, THE SENTENCE IS
SIX (6) YEARS IMPRISONMENT.
ON COUNT 5 OF ASSAULT WITH INTENT TO DO
GRIEVOUS BODILY HARM, THE SENTENCE IS TWELVE (12) MONTHS
IMPRISONMENT, WHOLLY SUSPENDED
FOR A PERIOD OF FIVE (5) YEARS ON
CONDITION THAT THE ACCUSED IS NOT CONVICTED OF ASSAULT WITH INTENT TO
CAUSE GRIEVOUS BODILY HARM
COMMITTED DURING THE PERIOD OF SUSPENSION.
ON COUNTS 6, 7 AND 8 OF MURDER, THE
ACCUSED IS SENTENCED TO 18 (EIGHTEEN) YEARS IMPRISONMENT ON EACH
COUNT. IT IS ORDERED THAT
THE SENTENCES ON COUNTS 1, 2, 3, 6 AND 7
RUN CONCURRENTLY WITH THE SENTENCE ON COUNT 8.
ACCUSED 1 IS EFFECTIVELY SENTENCED TO
18 (EIGHTEEN) YEARS IMPRISONMENT.
ACCUSED 2:
ACCUSED 2, ON COUNTS 1, 2 AND 3 OF
KIDNAPPING, THE THREE COUNTS TAKEN TOGETHER FOR PURPOSES OF SENTENCE,
THE SENTENCE IS SIX (6)
YEARS IMPRISONMENT.
ON COUNT 5 OF ASSAULT WITH INTENT TO
CAUSE GRIEVOUS BODILY HARM, THE SENTENCE IS TWELVE (12) MONTHS
IMPRISONMENT, WHOLLY SUSPENDED
FOR A PERIOD OF FIVE (5) YEARS ON
CONDITION THAT THE ACCUSED IS NOT CONVICTED OF ASSAULT WITH INTENT TO
CAUSE GRIEVOUS BODILY HARM
COMMITTED DURING THE PERIOD OF SUSPENSION.
ON COUNTS 6, 7 AND 8 OF MURDER, THE
ACCUSED IS SENTENCED TO EIGHTEEN (18) YEARS IMPRISONMENT ON EACH
COUNT.
IT IS ORDERED THAT THE SENTENCES ON
COUNTS 1, 2, 3, 6 AND 7 RUN CONCURRENTLY WITH THE SENTENCE ON COUNT
8.
ACCUSED 2 IS EFFECTIVELY SENTENCED TO
EIGHTEEN (18) YEARS IMPRISONMENT.
ACCUSED 3:
ON COUNTS 1, 2 AND 3 OF KIDNAPPING, THE
THREE COUNTS TAKEN TOGETHER FOR PURPOSES OF SENTENCE, THE ACCUSED IS
SENTENCED TO SIX (6)
YEARS IMPRISONMENT.
ON COUNT 5 OF ASSAULT WITH INTENT TO
CAUSE GRIEVOUS BODILY HARM, THE SENTENCE IS TWELVE (12) MONTHS
IMPRISONMENT, WHOLLY SUSPENDED
FOR A PERIOD OF FIVE (5) YEARS ON
CONDITION THAT THE ACCUSED IS NOT CONVICTED OF ASSAULT WITH INTENT TO
CAUSE GRIEVOUS BODILY HARM
COMMITTED DURING THE PERIOD OF SUSPENSION.
ON COUNTS 6, 7 AND 8 OF MURDER, THE
ACCUSED IS SENTENCED TO EIGHTEEN (18) YEARS IMPRISONMENT ON EACH
COUNT.
IT IS ORDERED THAT THE SENTENCES ON
COUNTS 1, 2, 3, 6 AND 7 RUN CONCURRENTLY WITH THE SENTENCE ON COUNT
8.
ACCUSED 3 IS EFFECTIVELY SENTENCED TO
EIGHTEEN (18) YEARS IMPRISONMENT.
ACCUSED 4:
ON COUNTS 1, 2 AND 3 OF KIDNAPPING, THE
THREE COUNTS TAKEN TOGETHER FOR PURPOSES OF SENTENCE, THE SENTENCE IS
SIX (6) YEARS IMPRISONMENT.
ON COUNT 5 OF ASSAULT WITH INTENT TO
CAUSE GRIEVOUS BODILY HARM, THE SENTENCE IS TWELVE (12) MONTHS
IMPRISONMENT, WHOLLY SUSPENDED
FOR A PERIOD OF FIVE (5) YEARS ON
CONDITION THAT THE ACCUSED IS NOT CONVICTED OF ASSAULT WITH INTENT TO
CAUSE GRIEVOUS BODILY HARM
COMMITTED DURING THE PERIOD OF SUSPENSION.
ON COUNTS 6, 7 AND 8 OF MURDER, THE
ACCUSED IS SENTENCED TO EIGHTEEN (18) YEARS IMPRISONMENT ON EACH
COUNT.
IT IS ORDERED THAT THE SENTENCES ON
COUNTS 1, 2, 3, 6 AND 7 RUN CONCURRENTLY WITH THE SENTENCE ON COUNT
8.
ACCUSED 4 IS EFFECTIVELY SENTENCED TO
EIGHTEEN (18) YEARS IMPRISONMENT.
ACCUSED 5:
ON COUNTS 1, 2 AND 3 OF KIDNAPPING, THE
THREE COUNTS TAKEN TOGETHER FOR PURPOSES OF SENTENCE, THE SENTENCE IS
SIX (6) YEARS IMPRISONMENT.
ON COUNTS 6, 7 AND 8 OF MURDER, THE
ACCUSED IS SENTENCED TO EIGHTEEN (18) YEARS IMPRISONMENT ON EACH
COUNT.
IT IS ORDERED THAT THE SENTENCES ON
COUNTS 1, 2, 3, 6 AND 7 RUN CONCURRENTLY WITH THE SENTENCE ON COUNT
8.
ACCUSED 5 IS EFFECTIVELY SENTENCED TO
EIGHTEEN (18) YEARS IMPRISONMENT.
ACCUSED 6:
ON COUNTS 1, 2 AND 3 OF KIDNAPPING, THE
THREE COUNTS TAKEN TOGETHER FOR PURPOSES OF SENTENCE, THE SENTENCE IS
SIX (6) YEARS IMPRISONMENT.
ON COUNTS 6, 7 AND 8 OF MURDER, THE
ACCUSED IS SENTENCED TO EIGHTEEN (18) YEARS IMPRISONMENT ON EACH
COUNT.
IT IS ORDERED THAT THE SENTENCES ON
COUNTS 1, 2, 3, 6 AND 7 RUN CONCURRENTLY WITH THE SENTENCE ON COUNT
8.
ACCUSED 6 IS EFFECTIVELY SENTENCED TO
EIGHTEEN (18) YEARS IMPRISONMENT.
BOQWANA, J