REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: SS16/10

In the matter between:
THE STATE 
versus
LUNGA PAUL LUKE 							Accused no. 1
THOBELA NONO							Accused no. 2 
CELANI MAXWELL TWAZI						Accused no. 3 
MZUKISI MALAMLELA							Accused no. 4 
ZAMEKILE NGQONGA							Accused no. 5 
THANDO MAFALALA							Accused no. 6 
THOBILE NICOLAS PEZISA						Accused no. 7 
GCINIKHAYA MAKOMA						Accused no. 8 
ANDILE NDANDANI							Accused no. 9 
ZUKILE SANDISO NETTI						Accused no. 10 
THEMBIKILE NICHOLAS TIKIPINI					Accused no. 11

SENTENCE: THURSDAY 16 FEBRUARY 2012

INTRODUCTION

months in Court the accused are now to be sentenced for the various offences of which they were convicted on 20 December 2011. The task of imposing sentence in a criminal trial is not an easy one: indeed, it was once described by a Judge of appeal as a lonely and onerous task. While the assessors in this case have been consulted in relation to the sentences to be imposed, and they are in agreement therewith, the prerogative to sentence is that of the presiding Judge and the presiding Judge alone.

judicial officers of the importance of being fair to both the accused and to society in handing down sentence. Justice, it was said, includes the element of mercy which is the hallmark of a civilized and enlightened criminal justice system.

approach as follows:

traditional purposes of punishment. Those are deterrence, prevention, retribution and rehabilitation of the offender. At the end of it all, it is the unenviable task of the Judge to achieve a proper balance amongst these competing factors and ultimately arrive at a sentence that is just. For that is what the Constitution ultimately requires that a Court must strive for: justice.

case the political and social landscape in South Africa was quite different from what it is now. And, in the halls of justice, too, matters were other. The maximum penal sanction, for example, was the death sentence. Alternative non-custodial sentencing options were rarely, if ever, resorted to and restorative justice was not a phrase with which courts were familiar.

Minimum Sentence Legislation

not, however, bring with it an end to the social ills which had plagued our society for so many decades. Levels of serious and violent crime continued to increase to unprecedented levels and very soon Parliament saw it necessary to step in and address the problem. In 1997 the Legislature passed the Criminal Law Amendment Act, 105 of 1997 ("Act 105") which was intended to prescribe a variety of mandatory minimum sentences to be imposed by our courts in respect of a wide range of serious and violent crimes. This was said to reflect the stern voice of the people in response to crimes which were perceived to be reaching epidemic proportions.

"[38] To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence (in the sense defined in paragraph 37 above) the offender is being used essentially as a means to another end and the offender's dignity assailed. So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter period, but the length of imprisonment bears no relationship to what the committed offence merits. Even in the absence of such features, mere disproportionality between the offence and the period of imprisonment would also tend to treat the offender as a means to an end, thereby denying the offender's dignity."

of Act 105 are applicable. The accused were all informed of this at the commencement of the trial and their defences would have been prepared accordingly. The consequences thereof are that on count 5 (the murder of Andiie Selepe) all of the accused (save accused no. 5) face a minimum sentence of life imprisonment, while on count 8 (the hijacking of the taxi in Connaught Road) accused nos. 8 and 11 face minimum sentences of fifteen years' imprisonment

"51(3)(a) If ...[the High Court] ...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 and must thereupon impose such lesser sentence..."

[7] First, some preliminary observations. The provisions are to be read in the light of the values enshrined in the Constitution and. unless it does not prove possible to do so, interpreted in a manner which respects those values. Due weight must be given to the fact that these provisions were not intended to be permanent fixtures on the legislative scene and were to lapse after two years unless extended annually. (They were put into operation on 1 May 1998 and were extended for twelve months with effect from 1 May 2000) That shows that, when conceived, they were intended to be relatively short-term responses to a situation which it was hoped would not persist indefinitely. That situation was and remains notorious: an alarming burgeoning in the commission of crimes of the kind specified resulting in the government, the police, prosecutors and the courts constantly being exhorted to use their best efforts to stem the tide of criminality which threatened and continues to threaten to engulf society. It was of course open to the High Courts, even prior to the enactment of the amending legislation to impose life imprisonment in the free exercise of their discretion. The very fact that this amending legislation has been enacted indicates that Parliament was not content with that and that it was no longer to be "business as usual" when sentencing for the commission of the specified crimes."

Substantial and Compelling Circumstances

"[25] What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed. In summary -

J. in so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the Legislature has provided."

The Offence

already found, well planned and executed with para-military precision. In his confession accused no. 8 indicated that his involvement in the planning of the robbery commenced on Saturday 1 December 2007 and that he and certain of his accomplices visited the scene itself on Sunday the 2nd.

route customarily taken by the Iveco, there can be little doubt that the locality was carefully selected. After all, Mr Dick told the Court in his evidence led by the State in aggravation of sentence, that a cash-in-transit vehicle such as the Iveco would ordinarily follow the same route on every collection, so as to meet the needs of the client regularly as to time and place. Anyone watching the route taken by the Iveco in advance would have realized that it went along Duiker Street, collected money at the hardware store at the end of the street and then had to turn back towards Tygerberg Hospital. The interception of the vehicle in a cul-de-sac such as Duiker Street was a perfect spot from which to attack in a classic pincer movement. The use of three vehicles on scene 1 and a further two vehicles at scene 2 also confirms the extent of planning of the offence.

the back of the bakkie stood up and immediately began firing at the Iveco. Simultaneously, the two men on the grass verge began firing with handguns. No demands were made on Mr Selepe that he should open up the Iveco and allow the robbers access to the vault. Rather, the attackers began pounding the Iveco at close range (no more than a couple paces) with heavy calibre, powerful military weapons. At least twelve of those shots were aimed at, and struck, the windscreen and a total of about 30 shots were fired on the scene by five of the accused with five different fully automatic rifles. As the medical evidence demonstrates, Mr Selepe was gunned-down at point blank range by more than one of the attackers.

at least one of the gunmen began firing in their direction, and as the robbers sped off along Duiker Street in the Golf at least one shot was discharged into the premises of Hanco through a glass door. We know that Mr Christians and his colleague were sitting on the grass verge taking their lunch and we can see from photographs 12, 13 and 14 that workers were busy erecting signage at the premises of Primador right next to the spot where the Iveco was attacked. We can also see from some of the other photographs taken at scene 1 that the shooting occurred in a relatively busy light-industrial area on an ordinary working day.

the streets of Ravensmead thereby exposing residents to further potential harm. And, when they eventually fled from their vehicles at the stadium they sought refuge in a place to which the residents of Ravensmead went to receive community services. Three of them, accused nos. 2, 6 and 7 exposed young toddlers to physical and emotional harm, while the deceased accused no. 4 was close to a number of senior citizens when arrested in the forecourt of the community centre. Accused no. 5, in turn, had no qualms about rushing into somebody's front yard and hiding amongst the shrubbery in an attempt to avoid the long arm of the law.

accused nos. 8 and 11 proceeded to hijack a taxi in Connaught Road while brandishing handguns and rifles. Fortunately Mr Florens and his colleagues did not offer any resistance and they were not injured. The taxi was also recovered nearby soon afterwards.

to the area, shamelessly imposed themselves upon law-abiding citizens at all three scenes and were prepared to stop at nothing to execute their deadly plan. And when that was foiled by the police they went on to expose the residents of Ravensmead to potential harm as well.   Ultimately, however, the community based response of the residents who co-operated with the police in pointing out the flight of the accused was a most important factor which led to the arrest of this highly dangerous gang of robbers. The facts of this case also demonstrate, once again, that there is no substitute for straight-forward visible policing. The availability of a number of uniformed police officers who descended on scenes 2 and 3 and assisted in the arrests of the bulk of the accused, is testimony to that.

seat of the Iveco. He was going about his ordinary duties in the course of his employment when he lost his life. The last moments of his life must have been terrifying. We know too from the harrowing evidence of Mr Samuels of the catastrophic effect which the attack had on his life. He lost his job and his house as a consequence of the emotional injury which he sustained, the effects whereof were still visible three years after the event. And yet despite all that, he exhibited a magnanimous act of forgiveness towards the accused in the Court room.

this event has had on Ms Selepe and her children. She is clearly a strong woman who has managed to rebuild her life somewhat but the scars which her young children bear through the loss of their father will surely take many years to heal.

money - which they hoped would be available in large amounts. They failed in that regard and left in their wake a tale of destruction of enormous physical and psychological proportions. I can, in all honesty, not conceive of a more horrendous, callous or grotesque event. This is certainly a crime of the most serious proportions.

Interests of Society

settlements, townships or leafy suburbs are all exposed to violent crimes of various descriptions on a regular basis. They look to the courts for protection against ruthless thugs like the accused and they are entitled to be protected from them. A failure by the courts to respond appropriately could result in vigilantism - something which undermines the very core of our constitutional order.

those who participate in this type of crime that they will be seriously dealt with and will face the full might of the law if they are convicted of such offences. While it may be business as usual in their eyes, it is certainly not yet business as usual in the sentencing arena.

The Offenders

I shall proceed, nevertheless, to consider these in due course.

no. 8 did however call a witness. The legal representatives for the defence placed certain facts before the Court in regard to their clients' personal circumstances which the State did not challenge. The Court must now consider those facts in relation to the other issues mentioned previously to assess the moral blameworthiness of each of the accused in relation to the charges on which each has been convicted.

Mens rea

pistol on the scene and clearly intimates that he discharged it.

weapons and others with powerful handguns, set out in a group to commit a robbery of an armoured vehicle. Their target was a sum of money secured in an impenetrable steel vault in the rear of that vehicle. According to Mr Dick, the vault could only be opened by activating a button or a lever in the cab section where the guard and the driver were seated. The cab itself was encased by thick steel and safety glass and there were only two ways to get to that lever or button. Either, the driver opened the cab door and let the robbers in or, if he did not, the robbers would have to force their way into the cab and open the vault themselves.

blast their way into the cab with utter disregard for the safety or bodily integrity of Mr Selepe and his passengers (or, for that matter, anyone in the immediate vicinity) And, when the police arrived on the scene, the robbers included them in their relentless attack.

sufficient to persuade a Court not to impose the minimum sentence is a factor which has to be considered ,not in isolation, but in relation to all the other factors in the case, including the accuseds' personal circumstances, any mitigatory factors and reduced moral blameworthiness, as well as the offence itself and the interests of society.

Multiple charges and concurrent sentences

and 2 (the theft of the Jetta and the Ford Ranger) should be taken as one for the purposes of sentence. I agree with that submission.

odds. The defence suggested that counts 6 and 7 (the attempted murder of the security guards in the Iveco) should be taken as one for purposes of sentence, and so too, counts 9 and 10 (the attempted murder of the policemen). The State argued to the contrary.

focus on counts 9 and 10 was probably the police vehicle in which Kleinsmith and Van der Poel suddenly arrived, and behind which they sought refuge, rather than each individual police officer. It was really one targeted event in the entire episode and deserves to be considered as such for purposes of sentence.

the cab of the Iveco. We know too from the evidence of Samuels that he was seated further back in the vehicle in a place where he was less likely to be injured. I shall accordingly also take these two counts as one for purposes of sentence.

The firearm charges

be drawn in sentences between those accused who have been convicted of possession of the firearms by virtue of joint possession, and those who actually had weapons in their possession. I am not satisfied that such a distinction is warranted in the present case. Having found that joint possession of the rifles was for the benefit of all of the members of the gang in the execution of the robbery, it does not seem fair to me to burden, for example, Makoma for actually handling and firing an AK47 or an R4 on the scene.

that day was a handgun for which he must be sentenced separately on counts 11 and 13. Fairness dictates, however, that those two counts should be taken together with count 12 on which sentence is to be imposed in respect of the joint possession of the fully automatic rifles.

Personal circumstances of the accused

claims maintenance responsibilities. It was also said that he worked in a small store run by his parents from their home in Langa. It is difficult to understand quite how he managed either of these responsibilities because he has been continually in custody on various cases, including the present charges, since about 2003. It is significant that Luke was released from custody on these other charges during the second half of November 2007 and that he lost little time in getting involved in serious crime notwithstanding the fact that he had been incarcerated for some three to four years.
Luke has various previous convictions, some less serious than others, but his future prospects of leading a responsible, crime-free life are in my view slim and I am not persuaded that there are substantial and compelling reasons to deviate from the minimum sentence on count 5 in his case.

daughter and three and a half year old son by a second wife. His wife is in fixed employment and he claims to have held down a steady job for a few years as a taxi-driver before becoming involved in this matter. What aggravates Ngqonga's position is that he has a previous conviction for armed robbery for which he served an effective prison sentence of eight years commencing in 1996. During that time he was convicted of possession of dagga in prison.

years old should be ignored due to the passage of time. I do not agree. Accused no. 5 was sentenced to eleven years' imprisonment in 1997 and was given the benefit of a partial suspension so that his effective sentence was eight years. He was released from prison early in 2004 and his parole period expired sometime in mid 2006. Within about eighteen months of that date, he was involved in a similar offence. Clearly, he has not learned from his previous prison sentence and must therefore be considered to be a poor candidate for rehabilitation.

ordinarily attract a lesser sentence than his co-accused but, on the other hand, he is the only one of the gang against whom the State has proved a previous conviction for a similar offence. In such circumstances, there does not seem to me to be any compelling reason to impose a lesser sentence on accused no. 5 than on his co-accused.

children by different mothers, age 10 and four and a half years. Mafalala has no previous convictions and at the time of his arrest ran a bread distribution agency from which he says he earned around R30 000.00 per month. In my view this factor suggests that there were no compelling reasons for accused no. 6 to become involved in this robbery other than greed. He too obviously wanted more money and he wanted it quickly. The fact that he may have been involved in the planning of the robbery is demonstrated by his acquisition shortly before the event of a vehicle not registered in his name, which was perfectly suited to transport the loot away from the scene. That vehicle was driven to the stadium and left there under the watchful eye of accused no. 5.

gravity of the attack on the Iveco, I am not persuaded that there are either substantial or compelling reasons to deviate from the mandated minimum sentence.

misplaced. He and various of his co-accused (save for accused nos. 2 and 11) are all of a similar age. Their conduct in Duiker Street on 3 December 2007 was anything but that of reckless young men spurred on by the exuberance or immaturity of misguided youth.
Their conduct was organized, goal-directed and ruthless. Accused no. 7's age is not a significant mitigating factor in this case.

and 3 empty casings in the chamber. The only reasonable inference is that this firearm was discharged on the Duiker Street scene - no self-respecting robber would take a partially loaded firearm to an event like that. This is clearly an aggravating factor

candidate for rehabilitation. But even if that were the case, I am of the view that in his case too the conscious decision to participate with his fellow accused in so serious an offence which was planned with such a degree of detail, outweighs any such considerations of a personal nature. In the case of Pezisa too I am unable to find any compelling reason to deviate from the prescribed minimum sentence.

married but has two sons aged 8 and 5 years. He was taken into custody on 20 December 2007 but was granted bail in mid 2008. After his release on bail in this case he was arrested on another matter and consequently forfeited his bail in this case, so I was informed. In his case too Makoma's time in prison awaiting trial has not been properly explained but it nevertheless appears, on the available evidence, to be a neutral factor and is not a circumstance which in and of itself is persuasive in regard to not imposing the prescribed sentence.

C) Cameron J (for the majority of the Constitutional Court) held at 838G that -

"[64]... The chief function of the deeming provision in Section 20(10) is to secure efficient expungment of all official documents and records, without requiring arduous physical deletion.   That is why the provision was enacted.   Expungment entitles the grantee of
amnesty to full civic status. All civil disabilities are lifted He is entitled to stand for Parliament. Should he ever be convicted of another crime, he will for sentencing purposes be deemed to be a first offender."

had elected not to refer to this incident or its consequences as an aggravating factor but where the defence had put the event right back in the spotlight in the hope of persuading the Court that there were substantial and compelling circumstances arising from it, and the consequences thereof, which warranted the imposition of a sentence other than the prescribed minimum.

situation, the Court requested the defence to place before it the relevant report of the TRC committee which granted Makoma amnesty. This request was refused with the excuse that it was not available to the defence notwithstanding the fact that it is readily available on the internet on the TRC website. The defence was informed that the Court was aware of this fact but that it had not accessed the report itself. Still, the defence did not place the report before the Court.

common law offence of the worst kind - not for any political motive but out of sheer greed. Yet, he seeks to be excused therefor on the basis that he now carries a stain which society will not forget. This is a perverse argument which is not worthy of serious consideration in relation to the application of the provisions of Act 105. Makoma s is no special case which warrants treatment any different from his co-accused who are also first offenders.

"[68]...The [TRC] Act's central objective was national unity and reconciliation. But moral absolution lay beyond the legal benefits the statute afforded perpetrators. Expunging moral opprobrium and condemnation lay beyond the lawgiver's powers, and the statute did not seek to confer it".

"....It does not render untrue the fact that the perpetrator was convicted, or expunge the deed that led to his or her conviction. Those remain historically true. The statute does not address these facts of history, nor does it attempt to mute their description"

I am of the view that the following circumstances warrant the imposition of a lighter sentence than the statutory minimum of fifteen years. They are the limited degree of violence employed in the robbery, the fact that the robbery was not premeditated but occurred on the spur of the moment in response to the timely arrival of the police, the fact that the vehicle was recovered shortly after it was stolen, and the fact that the driver of the taxi does not appear to have sustained any lasting psychological or emotional injury.

was 34 years of age and has two children aged 14 and 13 who are at high school in Cape Town. He lost his wife due to breast cancer early in 2009 at a time when he was in custody. His mother who took over the care of his children in 2009 also died at the end of 2011. Ndandani has a standard 8 education and earned R3 000.00 per week at the time of his arrest as an owner/driver of a minibus taxi.

custody while members of his close family have died and his children have been deprived of a father's care. The Court does recall that Ndandani himself spoke of another case pending against him in Blue Downs at the time of his arrest on 2 January 2008. However, the reasons for the refusal of bail were not fully explained to the Court and in his case too this must be regarded as a neutral factor.

should be treated as a first offender. He referred to Section 271B(1)(a)(vi) of the Criminal Procedure Act which effectively provides for the expungment of a criminal record which is older than ten years in circumstances where any sentence of imprisonment was suspended in its entirety. That section requires written application for such expungment to the Department of Justice and there is an administrative process that has to be followed before the expungment can take place. The relevant section is therefore not directly applicable in the present case because Ndandani has not made such written application. His situation is, however, analogous and because he has not been convicted of any offence since he was convicted as a youngster at the age of 19 for an inchoate offence, I am of the view that he should be treated as a first offender for purposes of this case.

conclusion that he, like accused nos. 2, 6 and 7, is a mature adult who participated in a well-planned crime fully conscious of the potential consequences thereof. He made this decision in the full knowledge that he was a family man with commitments to his loved ones. I can find nothing in his personal circumstances which suggest any reduced moral blameworthiness on the part of Ndandani and I am consequently of the view that there are no substantial circumstances which compel any deviation from the sentence which Parliament has said should ordinarily be imposed.

14 and 18 years who live with their respective mothers. He has a standard 2 education from a school in the Eastern Cape and has been in Cape Town since about 2002 in search of work. He has only managed to find casual employment in the building trade during that period. The State proved no previous convictions against Netti.

December 2007 when he heard that he was on the police's wanted-list. This probably accounts for the refusal of bail to him in the lower court, but the issue was not properly explored either before this Court.

digress from the minimum sentence in respect of accused no. 10. There is nothing in his confession which suggests any reduced moral blameworthiness and there is nothing which compels this Court to consider deviating.

any way influenced by some sort of peer pressure or the like to do what he did. Tikipini is an intelligent person with a matric and a partial post-school qualification in electrical engineering. He is married and has already fathered four children by three different mothers. He is a well built man with a strong personality, as the Court saw during his two performances in the witness box. In fact, he struck the Court as a leader rather than a follower.

as a driver in his mother-in-law's transport business. This work was confirmed by Mr Mguzulwa in evidence. As the Court observed earlier, throughout the trial Tikipini dressed fashionably in a variety of very smart outfits and was even keen to have his laptop with him in the dock at one stage. One can only but speculate as to how he was able to afford such fairly costly items on so limited a monthly salary.

robbery and the weaponry intended to be used. One sees also from the confession that his apparent knowledge of firearms was sufficient to enable him to distinguish an R4 from an R5, something which Inspector Gerber suggested was quite difficult for a layperson, and even for a police officer, as Constable Mdlalose's evidence demonstrates.

proximity of Mr Selepe and the reasonable inference to be drawn from his statement in that regard is that he probably fired the R5. That such a weapon was fired on the scene is apparent too from Gerber's evidence.

from the prescribed sentence in Tikipini's case. The Court considers him to be a dangerous man with a mind of his own, and a devious mind, at that.   Undoubtedly society demands to be protected against people like him and the Court is obliged to give serious consideration to such demands. There is no doubt in the Court's mind that life imprisonment, with or without the provisions of Act 105, is the only suitable sentence for Tikipini.

that a copy of this judgment on sentence is to be placed on each accused's file with the Department of Correctional Services for consideration of all relevant circumstances by the Department in the event that any of the accused subsequently applies for parole. These circumstances may include the lengthy periods of time spent as awaiting trial prisoners by accused nos. 1, 6, 8, 9 and 10.

The following sentences are imposed:

Accused no. 1: Langa Paul Luke

A]	
B]	
C]	
D]	

Accused no. 2: Thobela Nono

Accused no. 5: Zamekile Ngqonga

Accused no. 6: Thando Mafalala

Accused no. 7: Thobile Pezisa

Accused no. 8: Gcinikhava Makoma

Accused no. 9: Andile Ndandani

Accused no. 10: Zukite Sandiso Netti

Accused no. 11: Thembekile Nicholas Tikipini

P.A.L. GAMBLE
Judge od the Western Cape High Court

For The State                                   :                       Adv. G. Wolmarans
                                                                                    Adv. M. Allie
 
For Accused no. 1                          :                       Adv. J.L. Vismer
For Accused no. 2 and 3              :                       Adv. M.K.F. Ramovha
For Accused no. 4                          :                       Adv. J.J. Camphor
For Accused no. 5                          :                       Adv. T. Nöckler
For Accused no. 6                          :                       Adv. C. Givati
For Accused no. 7                          :                       Adv. J. Losch
For Accused no. 8                          :                       Adv. E. Fitz-Patrick
For Accused no. 9                          :                       Adv. S. Bruinders
For Accused no. 10                       :                       Mr. M.B. Seshea
For Accused no. 11                       :                       Mr. M. Sebueng