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

CASE NUMBER: SS183/03

DATE: 12 AUGUST 2003

In die saak tussen:

THE STATE

en

1. SIYABONGIA SIKRENYA

2. DUMISANI BOQUANA

3. NKOSUBONGILE DYANTYI

SENTENCE

GRIESEL, R:

The three accused were yesterday convicted of (1) murder; (2) robbery with aggravating circumstances; (3) & (4) two counts of kidnapping; and (5) & (6) two counts under the Arms and Ammunitions Act, 75 of 1969. The facts on which these charges were based are fully set out in our judgment and it is not necessary to repeat them for purposes hereof.

When it comes to sentence, the court must have regard to three principal factors, namely:

(a) the personal circumstances of the individual accused;

(b) the seriousness of the crimes in question; and

(c) the interests of society.

With regard to the counts of murder and robbery with aggravating circumstances, the court must also have regard tp the provisions of the Criminal Law Amendment Act, 105 of 1997.

In respect of murder, sec 51(1)(a), read with Part I of Schedule 2 of the Act provides for a compulsory sentence of life imprisonment to be imposed, inter alia when -

65535. it was planned or premeditated; or

65536. the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act; or

• the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy.

It is clear that the murder of which the accused have been convicted, falls within all three categories.

As regards the count of robbery, sec 51(2)(a), read with Part II of Schedule 2 of the Act provides for a compulsory sentence of 15 years imprisonment to be imposed when there are aggravating circumstances or when it involves the taking of a motor vehicle.

Again it is clear the present crime complies with both these requirements. The crucial question for consideration, therefore, is whether or not there are substantial and compelling circumstances which justify the imposition of a lesser sentence than the sentence prescribed as comtemplated by the Act.

In the case of S v Malqas 2001(1) SACR 469 the Supreme Court of Appeal laid down certain guidelines to be followed by the court in considering whether or not substantial and compelling circumstances exist. The Court inter alia said the following with regard to these concepts:

"Whatever nuances of meaning may lurk in those words, their central thrust seems obvious. The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny. Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to quality as substantial and compelling circumstances. Nor were marginal differences in the personal circumstances or degrees of participation of co-offenders which, but for the provisions, might have justified differentiating between them."

Later in the judgment, the learned judge said the following:

"If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence."

As far as the personal circumstances of the accused are concerned, all three of them gave evidence in mitigation of sentence. All three share certain features in common: all of them are first offenders; all three come from the Transkei in the Eastern Cape from deprived and impoverished circumstances. Accused 1 and 3 have advanced at school to Grade 12 and 11 respectively. All of them came to the Western Cape to look for work, but were unemployed at the time of the commission of the offences. All of them had dependants back home, whom they were supporting.

At the same time, none of them have shown any remorse for the crimes that they have committed. Accused 1 and 3 stil! maintain that they are innocent of any wrongdoing, while accused 2 told the court that he feels "bitter" over what had happened. He claimed that it happened under "verswarende omstandighede", as it was put, by which he presumably meant "versagtende omstandighede".

It is true, as was submitted by counsel on behalf of the accused that they - like a vast section of our society - lived in conditions of abject poverty. This argument, however, can be turned on its head, because, as Mr Wolmarans on behalf of the State rightly pointed out. the vast majority of people living under those conditions do not resort to crime in order to make a living. Were it otherwise, or were crimes of violence to be condoned on these grounds, it is clear that we would be living in state of complete anarchy.

This brings me to the crimes of which the accused have been convicted, which include some of the most serious crimes known to our law. Counsel for the defence, who said everything that could be said in favour of the accused, argued that the crimes could have been so much worse, for example, the accused could have killed or robbed the innocent passengers as well. I agree with counsel for the State that the accused hardly deserve credit for not having killed or robbed more people or for not executing their common purpose with greater skill and professionalism.

What aggravates the crimes in question, are the following facts: firstly, that the crimes have been premeditated and pre­planned; secondly, that the accused deliberately chose a "soft target", like a taxi, which inevitably accepts strangers to enter the vehicles. Taxis provide an indispensable service in society and they are entitled to the full protection of the law in providing that service.

Next, there is the fact that the deceased in this case offered no resistance to the attempts of the accused to rob him of his father's brand new vehicle. All he wanted to do was to try and escape with his life, but he was not allowed to get away with it. Instead, he was shot in the back and killed by accused 1 while accused 2 and 3 held his hands so as to prevent his escape. It was, therefore, a cold-blooded and senseless murder of an innocent victim, who had done them no harm and who posed no threat to them.

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