IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

JUDGMENT

CROWE, AJ:

[1] On 21 May 2004 the appellant, as accused number 2, and his co-accused Umzekelo Notje(?) as accused number 1, were both convicted of the murder of one Xolani Memani under case number SH1/58/03 in the Regional Court, Bellville. The trial Court found that the death of the deceased was caused by the appellant and his co- accused acting jointly.The trial Court did not impose the minimum sentence of 15 years prescribed for first offenders who commit this offence in circumstances other than those referred to in Part t of Schedule 2 of Act
105 of 1997.

[2] Having regard to the factors which a court must consider at the time of sentence, including that the appellant and his co-accused had spent almost two years in custody awaiting trial, it found substantial and compelling circumstances to exist justifying the imposition of a lesser sentence. In the exercise of its sentencing discretion it reduced the minimum sentence "met die tydperk wat julle reeds in hegtenis is" and imposed a sentence of 13 years' imprisonment on both the appellant and his co-accused. It also declared them both unfit to possess a firearm in terms of section 12 of Act 75 of 1969. Appellant appeals against sentence only having been granted leave to do so on petition to this Court in terms of section 309(C) of Act 51 of 1977.

[6] In my view, the fact that the appellant is a first offender, the lack of premeditation, as well as the circumstances of the crime and the role played by the various protagonists therein and the victim, are such that the objective punishment will be better served by suspending a substantial portion of the sentence imposed by the trial Court so that the appellant will still have to serve a long and arduous term of effective imprisonment but will be able, provided he avoids future violent conduct, to avoid a further substantial period of imprisonment.
[7]    In the result i would make the following order:
1.	The appeal succeeds.
2.	The sentence imposed upon the appellant by the trial Court is altered to read:
"Thirteen years' imprisonment three years whereof are suspended for five years on condition that accused 2 is not found guilty of murder, culpable homicide (involving any physical attack of another person) and assault with the intent to do grievous bodiiy harm committed during the period of suspension.
3.	The accused is declared unfit to possess a firearm in terms of section 12 of Act 75 of 1969".
4.	It is directed that the substituted sentence imposed upon the appellant today shall be considered to have been imposed on the date of the original sentence namely 21 May 2004.

[7] In the course of this appeal it has become apparent that the appellant's co-accused, Umzekelo Notje (accused number 1 at the trial) has not appealed against his sentence. After careful consideration I have come to the conclusion that one cannot differentiate between the circumstances of the appellant and UmzekeEo Notje and accordingly that it would not be in the interests of justice to allow the sentence of Umzekelo Notje to stand while interfering with the sentence of the appellant as set forth above.

[8] In the circumstances and in the exercise of this Court's review powers I would interfere with the sentence imposed on Umzekelo Notje as follows:

2.	You are declared unfit to possess a firearm in 	terms of section 12 of Act 75 of 1969".
3.	It is directed that the substituted sentence 	imposed upon accused number 1 today shall be 	considered to have been imposed on the date 	of the original sentence namely 21 May 2004.

VAN REENEN, J: I agree and it is ordered accordingly