SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (NORTH WEST DIVISION, MAHIKENG) CASE NO.: CAF15/15 In the matter between: JAN DIKE MAREDI FREDY NKOSI 1 ST APPELLANT 2 ND APPELLANT and THE STATE RESPONDENT HENDRICKS J; LANDMAN J & CHWARO AJ JUDGMENT 1
Landman J: [1] The first appellant, Jan Dike Maredi, and the second appellant, Fredy Nkosi, were indicted on three counts of robbery with aggravating circumstances, one count of murder, one count of the unlawful possession of a firearm and one count of the unlawful possession of ammunition. They pleaded not guilty on all counts. They were convicted on all counts and sentenced to 15 years imprisonment on each count of robbery, life imprisonment in respect of the murder and three years on the count of unlawful possession of a firearm and three years in respect of the unlawful possession of ammunition. The sentences on counts 1, 2, 3, 5 and 6 were ordered to run concurrently with the sentence of life imprisonment. [2] The appellants appeal only against the sentence of life imprisonment imposed upon them in respect of count 4 (murder) by the trial court Leeuw J (as she then was). No appeal has been noted against any of the sentences imposed in respect of the other counts. The appeal is with the leave of that court. [3] It is common cause that the indictment for murder made no mention of section 51(1) of the Criminal Law Amendment Act 105 of 1997. The application of this Act was however mentioned in the respective addresses on sentence delivered by the legal representatives of the first and second appellants. The trial 2
court, in the course of judgment on sentence, found that there were no substantial and compelling circumstances present. The imposition of the sentence as regards count 4 in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997 was therefore irregular and this court is at large to impose sentence afresh. See S v Ndlovu 2003 (1) SACR 331 (SCA) and Ndlovu v The State (204/2014) [2014] ZASCA 149. Submissions on sentence [4] It was submitted that the blameworthiness of the first appellant was not the same as that of the second appellant who was in possession of the firearm and who fired the shots. It was submitted that the deceased was shot at the time when he was struggling with the second appellant over the firearm. At this time the first appellant was busy taking money from the till. There is no evidence that he instigated the second appellant to shoot the deceased. The first appellant had no weapon in his possession, and does not know that the second appellant was going to shoot the deceased. [5] Counsel for the appellants submitted that the sentence of life imprisonment should be replaced in the case of the first appellant with a sentence of between 18 and 20 years imprisonment. 3
[6] Counsel submitted that the second appellant should be given an opportunity to mend his ways and become part of society again. She also submitted that when the deceased was shot at he was struggling or trying to dispossess the second appellant of the firearm. She submitted that the aims of sentencing can be achieved by imposing a long term of imprisonment. Counsel submitted that a sentence between 20 and 25 years imprisonment would be appropriate as regards second appellant. [7] Counsel for the respondent submitted that because the indictment had not referred to the minimum sentence legislation, he does not support the sentence of life imprisonment. It induces a sense of shock. [8] Counsel for the respondent submitted that this court should take into account the following aggravating circumstances: the complainants were robbed and the deceased was shot in broad daylight. the appellants were armed with a firearm which was intended to induce compliance with the demands and to commit murder. the appellants committed these offences for personal gain. these offences are particularly rife and prevalent in that community. the deceased was shot more than once in cold blood. the appellants shown no remorse. 4
the appellants conduct and demeanor demonstrated that they had no regard to the law and for the life of a fellow human being. [9] In the circumstances it was irregular for the court to impose a sentence in terms of the minimum sentence legislation. It follows that this court is at liberty to consider sentence a fresh. In imposing a suitable sentence, I take into consideration, the aims and goals of sentencing, the personal circumstances of each appellant, the crime and the context in which the crime was committed, as well as the interests of society and I will blend the sentence with an element of mercy. [10] I pause to point out that as the appellant was sentenced to life imprisonment, the trial court ordered that the sentences in respect of the other counts were to run concurrently with the sentence of life imprisonment. This court would be obliged to consider the cumulative effect of the sentences afresh and to decide what should be the effective sentence. The personal circumstances of the first appellant a) The first appellant was [ ] years of age at the time the offence was committed; b) he is a first offender; c) he worked for BMW earning R 480 per week; 5
d) he was unmarried; e) he passed standard 9; f) he has a [.] aged [..] years; g) he was in custody for the period September 2001 until June 2003. The personal circumstances of the second appellant a) The second appellant was [ ] years of age at the time the offence was committed; b) he was self-employed; c) he was unmarried; d) he matriculated; e) he was unmarried; f) he is a first offender; g) he had been in prison for 1 year and 8 months. The circumstances of the crime [11] The murder took place when the appellants robbed the patrons and employees of a hair salon. They terrorized the patrons. When they entered the salon they ordered all the occupants to lie down on the floor including a pregnant 6
woman. They searched the occupants and trampled them on their heads. The second appellant was in possession of a firearm. The trial court correctly found that they had a common purpose. They were prepared to shoot and kill if they met with resistance. The deceased endeavored to wrestle the firearm from the second appellant. The second appellant fired several shots at the deceased with the intention to kill him. The trial court found that when the appellants went to rob the salon they had the intention to kill if they were met with opposition. They did not care about the consequences. The court found on the basis of common purpose that both accused were guilty of murder. The interests of society [12] It goes without saying that member of our society are entitled to go about their business and not to be subjected to armed robbery which can, and in this case did, lead to the death of an individual. The community expects courts are to impose appropriate sanctions in order to give expression to their abhorrence of such murders. [13] Taking all this into account, I am satisfied that there is no room to distinguish between the appellants. A sentence of 22 years imprisonment in respect of count 4 (murder) would be appropriate. All the other sentences imposed by the trial court should run concurrently with this sentence. 7
Order I then result, I make the following order: 1. The appeal of both appellants against the sentence of life imprisonment on court 4 (murder) is upheld. 2. The sentence of life imprisonment imposed on each appellant in respect of count 4 (murder) is set aside and replaced with a sentence of 22 years imprisonment. 3. The sentences imposed in paragraph 2 above are antedated to 20 November 2003. 4. The sentences imposed by the trial court in respect of counts 1, 2, 3, 5 and 6 shall run concurrently with the sentences imposed in paragraph 2 above. Effectively each appellant will serve 22 years imprisonment antedated to 20 November 2003. A A Landman Judge of the High Court 8
I agree R D Hendricks Judge of the High Court I agree O K Chwaro Acting Judge of the High Court 9
Appearances Date of hearing: 31 July 2015 Date of Judgment: 13 August 2015 For the Appellant: Adv Skibi instructed by Legal Aid South Africa, Mafikeng For the first Respondent: Adv Mokone instructed by the Director of Public Prosecutions 10