---

 

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE: BHISHO

 

CASE NO.: CC 35/2007

 

In the matter between:

 

THE STATE
And
MSOBOMVU QHINGA	1st ACCUSED
LUNGILE JAMISO	2nd ACCUSED
CAMAGU ZIMELA	3rd ACCUSED
LUVUYO MCAPHUKISI	5th ACCUSED
LIZO LUMBE	6th ACCUSED
LINDLE MAGI	7th ACCUSED

 

SENTENCE

 

1. The following accused persons, namely Msobomvu Qhinga (accused No 1), Lungile Jamiso (accused No. 2), Camagu Zimela (accused No. 3), Luvuyo Mcaphukisi (accused No. 5), Lizo Lumbe (accused No,6), Lindile Lincoln Magi (accused No. 7) were convicted of on the following counts:

 

COUNT 1 - robbery with aggravating circumstances as defined in s 1(1 )(b) of the Criminal Procedure Act[1], read with the provisions of s 51 (2) of the Criminal Law Amendment Act[2].

 

COUNT 2 - attempted murder, read with the provisions of s 51(2) of the Criminal Law Amendment Act[3].

 

COUNT 3 - robbery with aggravating circumstances as defined in s 1(1) (b) of the Criminal Procedure Act[4], read with the provisions of s 51 of the Criminal Law Amendment Act[5]

 

COUNT 4 - robbery with aggravating circumstances as defined in s 1(1 )(b) of the Criminal Procedure Act[6], read with the provisions of s 51 of the Criminal Law Amendment Act[7].

 

COUNT 5 - robbery with aggravating circumstances as defined in s 1(1 )(b) of the Criminal Procedure Act[8], read with the provisions of s 51 (2) of the Criminal Law Amendment Act[9].

 

COUNT 6 - attempted murder read with the provisions of s 51 (2) of the Criminal Law Amendment Act[10].

 

2. These offences were committed on the 12th day of July 2006 when pension money was robbed inside a community hall at Newiands also known as Nxarhuni outside East London. (Count 4) According to the indictment an amount of R226,910.00 was robbed while it was in Nomathamsanqa Edith Tini's lawful possession. Tini was, however, uncertain of the actual amount robbed. The accused were carrying firearms during the robbery.

 

3. One charge of attempted murder (count 2) relates to security guard Thandisizwe Somtsora who was shot in his thigh and sustained a fracture and a broken nerve. The other charge relates to gunshots which were fired at police officers, including Mthobeli Mdingi, who were attempting to stop the get-away Toyota van on the Newiands main road in which the accused were.

 

4. The other three robberies relate to a 9mm Norinco firearm with serial number 6601163 and eighteen rounds of ammunition of which Thandisizwe Somtsora was robbed, the get-away Toyota van robbed from Joseph Tshiogoda valued at R61,800.00 and a 9mm BxP semi-automatic firearm with serial number RSA 56972 and thirty rounds of ammunition robbed from security guard Thandile Mgqwanca.

 

5. Personal circumstances of the six accused are as follows:

 

5.1 Accused Mo. 1 - Msobomvu Qhinga is 46 years old, has two daughters aged 19 and 20 respectively. He has been in custody since 01 August 2006. His previous convictions are as follows; On 09 July 1999 he was convicted of robbery and was sentenced to imprisonment for ten years. He was also convicted of being in possession of a firearm without a licence and also of several counts of being in possession of ammunition without a licence. These counts were treated as one for the purpose of sentence and he was sentenced to undergo imprisonment for two years. This term of imprisonment was ordered to run concurrently with the sentence of ten years' imprisonment. On 30 August 2005 Qhinga was released on parole supervision until 08 January 2009. The offences of which he has been convicted in this case were committed while he was on parole.

 

5.2   The second accused Lungile Jarniso is 40 years old. He has two dependent children aged 16 and 12 respectively and has no parents. He has been in custody since 21 August 2006. It was submitted that he is diabetic and that no one looks after his parental home. His previous convictions are as follows: Culpable homicide - convicted on 19 October 1988 - sentenced to six cuts with a light cane and imprisonment for 18 months which was conditionally suspended for five years. On 02 June 1993 he was convicted of theft and was sentenced to pay a fine of R250,00 or to undergo 50 days' imprisonment. On 07 July 1993 he was convicted of theft and was sentenced to six cuts with a light cane. On 15 September 1999 he was convicted of robbery and was sentenced to undergo imprisonment for eight years. On the same date he was convicted of being in possession of a firearm without a licence and was sentenced to imprisonment for two years. He was also convicted on that date of being in possession of ammunition without a licence and was sentenced to imprisonment for one year. This sentence was ordered to run concurrently with that of being in possession of a firearm without a licence. He was on prison parole when the offences were committed.

 

5.3     Accused No. 3 - Camagu Zimela is 34 years old. He has one child aged 13 years. He has been in custody since 21 August 2006. His father died while he was in custody in connection with this case. His mother lives in rural areas. No one is looking after the family house in Mdantsane. His previous convictions are as follows: On 05 September 1997 he was convicted of robbery and was sentenced to imprisonment for ten years. On the same date he was convicted of being in possession of a firearm without a licence and also of being in possession of ammunition without a licence. The two offences were treated as one for the purpose of sentence and he was sentenced to imprisonment for three years. There is evidence that he was on prison parole when the present offences were committed.

 

5.4     The fifth accused Luvuyo Mcaphukisi is 37 years old. He is single with no children. He is responsible for the maintenance of his sister's two children born in 1992 and 1996, respectively. His sister is unemployed. His lives with his parents who are both employed. Before he was arrested Mcaphukisi was employed by the Buffalo City Municipality as a general worker and earned 133,500,00 per month. He has been in custody since 22 August 2006. His Counsel Mr Magqabi submitted that he (Mr Mcaphukisi) is "immensely contrite" about his actions on the day in question. On 30 August 1998 he was convicted of robbery and was sentenced to imprisonment for ten years. On the same date he was convicted of robbery and sentenced to imprisonment for six years and also of being in possession of a weapon without a licence and was sentenced to undergo imprisonment for two years. The latter two terms of imprisonment were ordered to run concurrently with the term of ten years' imprisonment.

 

5.5. Accused No. 6 - Lizo Lumbe is 27 years old. He has two dependants. They are his grandmother and his brother. He has no children. At the time of his arrest he did welding and earned R1,400,00 per month. He has no previous convictions.

 

5.6. The seventh accused - Lindile Lincoln Magi is 38 years of age. At the time of his arrest he couched young cricketers and assisted in a spaza shop of which he was a co-owner. He has a single dependant who is two years old. He was arrested on 25 August 2006 and has been in custody eversince. His previous convictions are as follows:

 

On 21 June 1991 he was convicted of robbery and was sentences to six cuts with a light cane. On 02 May 1995 he was convicted of being in possession of a weapon without a licence and also of being in possession of ammunition without a licence. The two counts were treated as one for the purpose of sentence and he was fined R1,000,00 or to undergo imprisonment for six months and was further sentenced to imprisonment for two years which was conditionally suspended for three years. On 24 July 1988 he was convicted of robbery and was sentenced to imprisonment for ten years, Mr Pango informed the Court that Magi showed signs of remorse.

 

6. Counsel who represent the six accused submitted that the accused persons have been in custody since August 2006 (about two years and seven months). They submitted further that no human life was lost as a result of the robbery, that only one security guard was shot in the thigh and that one of the robbers informed the injured security guard that they were not there to shoot but to take money. Finally they submitted that these facts constitute substantial and compelling circumstances. In respect of the sixth accused it was submitted that he is a first offender,

 

7. Mr Erasmus who represents the State argued that the accused planned to commit the robbery, that the offences they committed are serious and prevalent countrywide.   He argued further that planned criminality is morally more reprehensible than acting impulsively and without planning. He went on and said that the accused acted in a brutal and brazen manner which demonstrated lack of respect and consideration for human life and property. Shots were fired at the police who were on duty attempting to stop the accused who were in the get-away Toyota van.

 

8. All the accused, except number six Lizo Lumbe, have been convicted of robbery before. All the accused are first offenders in respect of the two counts of attempted murder. The first three accused were on parole for robbery when they committed the present offences.

 

9. The accused have not taken the Court into their confidence and say whether they were prompted by need to commit the robbery. The prescribed sentences are not to be departed from lightly and for flimsy reasons and without truly convincing reasons and in the absence of weighty justification. It seems that accused 1, 2, 3, 5 and 7 have not been deterred by sentences imposed for their previous convictions.

 

10. The victims of the four robberies were not injured when they were being robbed. Although the robbers were carrying firearms, no shots were fired during the robberies. In the hall where pension money was robbed not a single shot was fired. Security guard Thandisizwe Somtsora who had been incapacitated was assured by one of the robbers that they (the robbers) were not there to shoot but to take the money. It has already been said that it is not known how much money was robbed. The get­away van was left where it could easily be found in Mdantsane and was indeed recovered. In my view these facts do constitute weighty justification to depart from prescribed sentences. I therefore find that substantial and compelling circumstances are present. I should not lose sight of the fact that the accused have been in custody for a long time.

 

11. The crimes of which the accused have been convicted are serious and prevalent in this country, in sentencing those who are guilty of such offences, courts should send a loud and clear message that the offences will not be tolerated. In my view the following sentences are appropriate:

 

COUNT 1: ROBBERY WITH AGGRAVATING CIRCUMSTANCES

 

ACCUSED NO.1 (MSOBOMVU QHINGA), ACCUSED NO. 2 (LUNGILE JAMISO), ACCUSED NO. 3 (CAMAGU ZIMELA), ACCUSED NO. 5 (LUVUYO MCAPHUKISI), AND ACCUSED NO. 7 (UNDUE LINCOLN MAGI) are each sentenced to undergo imprisonment for twelve (12) years. ACCUSED NO,6 (LIZO LUMBE) is sentenced to undergo imprisonment for ten (10) years.

 

COUNT 2: ROBBERY WITH AGGRAVATING CIRCUMSTANCES

 

ACCUSED 1, 2,3, 5, AND 7 are each sentenced to undergo imprisonment for twelve (12) years. ACCUSED NO.6 is sentenced to undergo imprisonment for ten (10) years.

 

COUNT3: ATTEMPTED MURDER

 

ACCUSED NO.1, 2, 3, 5, 6 AND 7 are each sentenced to undergo imprisonment for ten (10) years.

 

COUNT 4: ROBBERY WITH AGGRAVATING CIRCUMSTANCES

 

ACCUSED 1, 2, 3, 5, AND 7 are each sentenced to undergo imprisonment for eighteen (18) years. ACCUSED NO.6 is sentenced to undergo imprisonment for twelve (12) years.

 

COUNT 5; ROBBERY WITH AGGRAVATING CIRCUMSTANCES

 

ACCUSED 1, 2, 3, 5, AND 7 are each sentenced to undergo imprisonmenl for twelve (12) years. ACCUSED NO.6 is sentenced to undergo imprisonment for ten (10) years.

 

C0UNT 6: ATTEMPTED MURDER

 

ACCUSED 1, 2, 3, 5, 6 AND 7 are each sentenced to undergo imprisonment for ten (10) years.

 

Sentences on counts one, two, three, four, and five shall run concurrently. The sentence on count six shall run cumulatively.

 

EFFECTIVE SENTENCE:

 

ACCUSED 1, 2, 3, 5 AND 7: TWENTY EIGHT (28) YEARS IMPRISONMENT

 

ACCUSED 6: TWENTY TWO (22) YEARS IMPRISONMENT

 

AEB DHLODHLO

JUDGE OF THE HIGH COURT

ACTING DEPUTY JUDGE PRESIDENT

31st MARCH 2009

 

HEARD ON: 19 MARCH 2009

 

FOR THE STATE:	MR AC ERASMUS
FOR ACCUSED 1, 2 AND 3:	MR M B POPO
FOR ACCUSED 5:	MR V MAGQABI
FOR ACCUSED 6 AND 7:	MR S V PANGO

 

---

---