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IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CC 90/2017

In the matter between

THE STATE

Vs

JABULANI JOHN NDLOVU                                                                Accused no 1

FORGET NDLOVU                                                                              Accused no 2

SIBUSISO SANI NDLOVU                                                                   Accused no 3

SENTENCE

PICKERING J:

[1]   The three accused have been convicted of various offences as set out in my judgment on the merits. In assessing the appropriate sentences to be imposed on the accused I must have regard not only to the personal circumstances of each accused but also to the nature and seriousness of the offences committed by them as well as to the interests of the community.

[2]  Counts 1, 6, 21, 26, 31, 36, 41, 51, 56 and 61 relate to the theft of the rhino horns mentioned in the schedule to the indictment. In the indictment it was alleged that the accused were guilty of theft " in that at the time and places mentioned in column I and II respectively of the schedule the accused unlawfully and intentionally stole a number of rhinos and/or rhino horn mentioned in column Ill, the property or in the lawful possession of the persons mentioned in column IV to the value of the amount mentioned in column V of the said schedule."

[3]    The State alleged that the provisions of section 51(2)(a)(i) read  with Part II of Schedule 2 of Act 105 of 1977  were applicable. Those provisions provide for a discretionary minimum sentence of 15 years imprisonment per count in that the accused committed the offence of theft involving amounts of more than R500 000,00.

[4]  Mr. Price, for the accused, however, submitted that the section was of no application to the present matter in that the State had failed to prove the value of the stolen horns in respect of each count and, more specifically, that the value of each horn exceeded R500 000,00.

[5]   For this submission he relied on S v Legoa 2003 (1) SACR 13 (SCA). In that matter the appellant was convicted of dealing in dagga with a value of more than R50 000,00, thus bringing into operation the aforementioned minimum sentencing provisions relating to dealing in dagga with a total value of more than R50 000,00. On appeal Cameron JA stated as follows:

"[10] Nearly a century ago Innes JA observed that the principle that the value of an article is, as a general rule, what it will fetch' was well recognised . Accordingly, the aim should be to estimate what could be obtained for it; not what it cost or what its utility to the owner would be worth'. 'What it will fetch' relates of course to market value, which Innes JA went on to describe as 'the most uniform test, and the one easiest of practical application. '

[11] 'Market value', notoriously, means the price a willing buyer pays a willing seller in an open market. In the present case, the magistrate and the Eastern Cape Division implicitly accepted this. But the error they made was to assume that dagga sold in bulk and dagga sold in small quantities of 1 gram would sell at the same price per gram. The conclusion is at odds with common sense. In any event there is no evidence to support the assumption. In fact the evidence is to the contrary. The dagga was in twenty bags, each therefore  weighing somewhat more than 10kg. Capt van Niekerk testified that the value of such a bag was between R300 and R1000. At most, therefore, the dagga was worth R20 000. It may have been worth considerably less - in any event, nothing even close to the R50 000 the minimum sentencing legislation prescribes."

[6]   In S v Sithole 2005 (2) SACR 504 (SCA) the following was stated at paragraphs [12] and [13]:

"[12] For a minimum sentence to apply to an individual drug dealer acting alone who is not a law enforcement officer, the contraband must exceed R50 000 in ''value". The Legislature specified a monetary figure, and not a weight, presumably because illegal drugs vary so greatly in value . A car-load of dagga may be worth less than a small packet of heroin or cocaine. But this entails that the State must prove the value of the contraband seized - a more exacting task than proving its weight. And it must prove value not by showing a notional or abstract or potential value, but the value of the drugs to the dealer, whether at the place of seizure, or at the dealer's intended point of sale. This has particular practical relevance when drugs in large volume are seized.

[13] In S v Legoa this Court held that 'value' in the minimum sentencing legislation means 'market value' and that this entails that a court asked to apply a minimum sentence should establish what could be obtained for the thing in question. Legoa held that it was incorrect to assume that dagga in bulk has the same value as dagga sold in small quantities. It was therefore wrong to conclude that the dagga there- which weighed 216,3 kg, but was stashed into 20 bags each weighing somewhat more than 10kg - should be valued at its street worth of R1 per gram."

[7]    In the course of his able argument Mr. Price submitted that the value set out in column V was obviously the value of the rhinos themselves. He submitted that there was no evidence as to the separate market value of the horns themselves once detached from the rhino.

[8]    Mr. Coetzee for the State submitted however that it had not been necessary for the State to lead any evidence concerning the market value of the horns inasmuch as the value thereof had been admitted by the accused in terms of the admissions made by them in terms of section 220 of Act 51 of 1977 (Exhibit G). The particular admission reads as follows:

" Ad Schedule to charges

1.   On the dates listed in Column I of the original Schedule prior to amendment of the Indictment and at the places listed in Column II the number of rhinoceros were darted with tranquilisers and the number of horns removed and stolen from these animals as listed in Column Ill, the property or in rightful possession of the persons listed in Column IV, to the loss to the owners in the amounts listed in Column V."

[9]     In my view, however, Mr. Price is correct in his submission that the admission  of the values listed in column V cannot be equated to the market value of the rhino horn in each case.  Of particular importance is that the admission in Exhibit G speaks to " the loss to the owners in the amounts listed." In my view it is clear that " the loss to the owners" is the loss occasioned to them in consequence of the killing of the various rhinos and does not relate to the market value of the horns alone. Furthermore, Column Ill of the Schedule does not refer only to the horns but, in each case to the " rhino/horn", a clear indication that the value in Column IV was not intended to refer only to the value of the horns.

[10]   As stated in Legoa supra the sentencing court must establish what could be

obtained for the thing in question. In this regard I am completely in the dark. I can take judicial notice of the fact that there is a lucrative illicit trade in rhino horn but I have no evidence before me as to what monetary amount the accused could obtain for each horn. Furthermore, as in Legoa and Sithole's cases supra, it is incorrect to assume that the intact rhino horn has the same value as rhino horn sold in small quantities. It may well be that once processed a rhino horn is worth very much more than in its intact state.

[11]    In my view therefore the minimum sentencing provisions of Act 105 of 1977 do not apply and I must sentence the accused on the theft charges in accordance with my common law jurisdiction.

[12]    Each of the accused testified in mitigation of sentence. All three are first offenders. Accused no 1 was born on 14 November 1977 in Zimbabwe and is thus 41 years of age. He has been married twice. His first wife, by whom he has three minor children, is unemployed and resides in Bedford. He himself resided in Lovemore Heights, Port Elizabeth with his second wife in a house worth R2,5 million in respect of which she paid the installments on a bond. It was sold for R2,2 million and, after the outstanding amount on the bond had been settled, he used the balance to pay his legal fees. He and his wife now rent a property in Centurion where she is employed by Investec. They have two minor children.

[13]   Accused no 1 stated that he contributed to the maintenance of all his minor children. Under cross-examination he stated that his Volkswagen Golf had been seized by the Asset Forfeiture Unit. Asked why he had rented expensive motor vehicles, as set out in my judgment, he stated ludicrously, that he was prepared to expend considerable amounts of money on rented vehicles because he wanted to keep the Golf's mileage low so that he could sell it for a better price. Under cross­ examination by Mr. Coetzee he stated that he was very sorry about the rhino but that he had had nothing to do with any of the poaching incidents. He was then questioned about the events at chalet no 8, Makana Resort, where he was found in possession of, inter alia, the 10,7kg rhino horn, tranquilising fluid and the tranquiliser dart gun. He refused to answer any questions relating to the merits of the case and in particular, to those events.

[14]    Accused no 2 was born in Zimbabwe on 30 March 1980 and is thus presently 39 years of age. He is married to his wife who is a teacher and they have four children of whom three are minors. He contributes to the maintenance of his children.

[15]    He stated that prior to his arrest he was employed as a qualified field guide at Gondwana Reserve. He confirmed that he was even featured on the cover of Gondwana's brochure sitting on a game viewing vehicle. He and his wife own a house in George which was bought in 2011 for R250 000,00. It is fully bonded.

[16]    He stated that all his life he had worked in game reserves and that he loved wild life. He would travel to various game reserves in order to see how they were managed in case he wanted to apply for work. It was for this reason, so he said, that he stayed at the Camdeboo game reserve with a friend.

[17]  He was also questioned as to how he came to be in chalet no 8 with the rhino horn but replied that he refused to answer any question relating to the merits.

[18]    He stated that he had stayed at Bucklands during January 2016 in order to investigate it for a friend from Switzerland who was thinking of staying there.

[19]    Accused no 3 was born on 7 December 1979 and he is thus 39 years of age. He is not married but has three minor children for whom he was paying maintenance. He stated that he was a taxi driver and he used to drive all over the Eastern Cape.

[20]     He denied that his car had the letters S.K on it stating that the letters on it were SKV. His car, an Audi A4, was confiscated by the Asset Forfeiture Unit. He too refused to answer any questions relating to the merits of the case.

[21]   Mr. Deon de Villiers, the Director: Compliance and Enforcement of the Department of Economic Development and Environmental Affairs and Tourism testified on behalf of the State. He stated that he had been keeping statistics of rhino poaching since 2007 onwards.

[22]   In 2012, 668 rhinos were poached in South Africa of which only 7 were poached in the Eastern Cape. In 2013, 1004 rhinos were poached in South Africa of which 5 were poached in the Eastern Cape. One of these 5 was the rhino which was involved in incident no 2 at Koffylaagte. In 2014, 1215 rhino were poached in South Africa of which 15 were poached in the Eastern Cape. In 2015, 1175 rhino were poached in South Africa of which 14 were poached in the Eastern Cape. In 2016 up until the arrest of the accused in June 2016, 18 rhino had been poached in the Eastern Cape whereafter only 1 more was poached in the remainder of 2016. In South Africa as a whole 1054 rhino were poached. In 2017, 1028 rhino were poached in South Africa of which 12 were poached in the Eastern Cape. In 2018, 769 rhino were poached in South Africa of which 19 were poached in the Eastern Cape. Mr. De Villiers stated that, so far in 2019, 1 rhino has been poached in the Eastern Cape.

[23]    His evidence reveals the horrifying extent of the scourge of rhino poaching in South Africa, 6913 rhino having been poached since 2012, of which 91 were poached in the Eastern Cape.

[24]     As was stated in S v Lemthongthai 2015 (1) SACR 353 (SCA) at paragraph [14]:

" [14] Tsoka J correctly took into consideration that the rhino population since 2010 has been in decline due to illegal rhino poaching. He referred to the decision in S v Chu [2012] ZAGPJHC 204, in which the South Gauteng High Court, sitting as a court of appeal, was emphatic in its concern about our diversity heritage and the protection of endangered species such as the rhino.

In para 20 Tsoka J said the following :

'The sentiments expressed by Willis J above resonate not only with the people of the world but with the population of South Africa. If we do not take measures such as imposing appropriate sentences for people such as the appellant, these magnificent creatures would be decimated from earth. Our flora and fauna would be poorer for it. South Africa would no longer be the safe home of one of the "Big Five", as it is known all over the world."'

[25]    In S v Els 2017 (2) SACR 622 (SCA) the following was stated:

"[17] Threat to the wildlife in South Africa has dramatically increased in recent years, and so has the illegal trade in rhino horns. As a result, this species is under a serious threat of being slaughtered or otherwise exploited, for economic gain. Sentences which reflect our censure will go a long way to safeguard the rhino from being economically expl oited. Regrettably, a non-custodial sentence would send out the wrong message.

[18] Creating a safe haven for the fauna and flora of our land and our heritage should resonate universally. This court expressed the following sentiments in S v Lemthongthai:

The Constitution recognises that citizens have the right to have the environment protected for the benefit of present and future generations, though reasonable legislative and other measures that , inter alia, promote conservation ...

The duty resting on us to protect and conserve our biodiversity is owed to present and future generations. In so doing, we will also be redressing past neglect. Constitutional values dictate a more caring attitude towards fellow human, animals and the environment in general. Allowing the kind of behaviour that resulted in the convictions in the present case to be dealt with too leniently will have the opposite effect to what was intended by the NEMBA. A non-custodial sentence will send out the wrong message. Furthermore, illegal activities such as those engaged in by the appellant are fuel to the fire of the illicit international trade in rhino horn."

[26]     The facts in Lemthongthai and Els supra are distinguishable from the present matter in that the respective accused were held not to be "the conventional type of poacher namely a person who kills indiscriminately without any pretence at legality." Lemthongthai supra at [17]. Nevertheless the sentences imposed in the cases are an illustration of how seriously offences involving rhinos are taken by the Courts.

[26]    It is also of relevance that none of the accused has shown any remorse for their actions. Despite being caught in possession of the rhino horn and all the rhino poaching paraphernalia in chalet no 8 they refused to express any regret or remorse and refused to cooperate in any way with the police investigations whilst they each purported, with startling hypocrisy, to express sympathy for the rhinos. It is abundantly clear that the accused have no insight at all into the enormity of their actions , something which does not bode well for their prospects of rehabilitation.

[27]      Mr. Price stressed that the accused are first offenders inasmuch as they have not before been convicted. That is so but what was said in R v Milne and Erleigh (7) 1951 (1) SA 791 (AD) at 879C - D is relevant. It that matter it was submitted that certain sentences should be suspended as the accused were first offenders. The Court stated as follows with regard to this submission:

" We have found that the appellants in the counts in respect of which the appeal was dismissed committed serious crimes. It was contended that in each case there were no previous convictions against the appellants. No doubt that is a factor which is proper to take into consideration where an accused person has been convicted of only one crime but this court has found that the appellants are guilty of having committed four crimes in respect of which they have  been sentenced to imprisonmen.t These crimes are of a serious nature and in our view it would not be justified in granting a suspension of sentence either wholly or in part."

[28]     As was pointed out by Mr. Coetzee the various incidents in respect of which the accused have been convicted took place over a period of 3 years. The accused had ample time in which to reflect on their actions and to desist therefrom. Despite all of them being self supporting they did not do so. They were clearly motivated by greed and financial gain. In my view it is particularly aggravating that accused no 2, a qualified field guide who professed to love wild life, participated in the commission of these offences.

[29]   

I must also take into account the interests of the community. It is common knowledge that society is outraged at the ongoing slaughter of rhinos for their horns. Society's interests would not be served by a sentence which is disproportionately light having regard to the seriousness of the offences. S v Ingram 1995 (1) SACR (A). As has often been stated by the Supreme Court of Appeal in cases such as S v Swart 2004 (2) SACR 370 (SCA) and S v Vilakazi 2009 (1) SACR 552 (SCA) serious cases will usually require that retribution and deterrence should come to the fore and that the personal circumstances of the offender, by themselves, will necessarily recede into the background. " In such cases the questions whether an accused is married or single, whether he has two children or three, whether or not he is in employment are  in themselves largely immaterial to what that period should be..." (Vilakazi supra at paragraph [581) . This, in my view, is the precisely type of case where the retributive and deterrent purposes of punishment come to the fore.

[30]     Against this background I turn to consider the sentence to be imposed on the accused on each count. Conscious of what the ultimate aggregate penalty might be I considered taking the various counts in respect of similar offences together for purposes of sentence. Such a course is, however, to be resorted to only in exceptional circumstances more especially where, as in the present case, the various  offences, although similar, were committed at completely different times and places over an extended period of three years. In my view therefore it would not be appropriate to take the various counts together for purposes of sentence.

Counts 1, 6, 21, 26, 31, 41, 51, 56 and 61

[31]    Although the provisions of the Minimum Sentence Act do not apply, the convictions for theft are extremely serious. In order to effect the theft of the various horns the accused, after having darted the rhino, then cut off the horns with a saw. I have set out in my judgment on the merits the various post-mortem reports in respect of the dead rhinos. These reports detail the horrific injuries suffered by the rhinos in consequence thereof. I need only refer as an example to the report by Dr. Fowlds (Exhibit H1) in respect of the rhino Cambell. According to his report the rhino bull was lying in a large pool of blood and blood tainted foam. The blood emanated from the traumatized sinuses and airways which had been traumatically exposed when the horn was removed. The level of the incision and damage to tissues and blood vessels was sufficient to cause substantial blood loss which, along with the amount of pain that this trauma would have caused, led to the death of the animal. The photographs of the various dead and maimed rhino contained in Exhibit J bear silent testimony to the horrific injuries inflicted upon the various rhino in order to steal their horns. Two of the dead rhino cows were heavily pregnant.

[32]     It is a tragedy that each of these magnificent animals had to die in such a brutal fashion in order to satisfy the demand for their horns by those who hold the utterly irrational belief that they are of medicinal value.

[33]    In all the circumstances I am of the view that although the minimum sentencing provisions are not of application a sentence of 15 years imprisonment on each of the theft counts would in any event be appropriate.

[34]   Count 36, in respect of which accused no 2 was acquitted, relates to the attempted theft by accused no 1 and 3 of the horn at Kleindoringberg farm, which resulted in the death of the rhino in consequence of a high dose of tranquiliser. The accused were only thwarted in their attempt by the fortuituous intervention of the black rhino which gored Honesty. This, in my view, renders the offence, although only an attempt, extremely serious. In my view an appropriate sentence on this count is one of 7 years imprisonment.

[35]    In respect of all the remaining offences, other than the contraventions of the Firearms Control Act, Mr. Price submitted that on sentencing the accused recognition must be given to the fact that some degree of overlapping exists between the commission of these offences and the theft of the horns. In each case the illegal possession of the tranquiilser led on to the contraventions of s 29(k) of the Provincial Ordinance 19 of 1974 and the consequent contravention of s 57(1) of the National Environmental Management: Biodiversity Act 10 of 2004. All these offences were committed in order to achieve the theft of the horns. It is so that to this extent these offences are interconnected. However, they are each discrete offences in respect of each of which the Legislature has ordained severe penalties. Each such offence was committed regardless of whether the ultimate purpose for doing so, namely the theft of the horns, was achieved. They are each deserving of punishment in their own right.

[36] In a consideration of sentence there is also no basis on which to differentiate between the individual counts according to the circumstances peculiar to each offence. (Compare: S v Young 1977 (1) SA 602 (AD) at 6080 - G). The modus operandi in each was virtually identical.

[37]    No mitigating circumstances whatsoever have been placed before me in respect of any of the various counts. .In dealing with the various counts hereunder I have not lost sight of the fact that accused no 2 has been acquitted in respect of counts 36 to 40.

Counts 2, 7, 22, 27, 32, 37, 42, 52, 57 and 62

[38]   On these counts the accused have been convicted of a contravention of section 57(1) of NEMBA which provides:

"A person may not carry out a restricted activity involving a specimen of a listed threatened or protected species without a permit issued in terms of Chapter 7."

[39]    In terms of section 101 (1)(a) a person is guilty of an offence if that person contravenes section 57(1) of the Act.

[40]    Section 102(1) provides that a person convicted of an offence in terms of section 101 is liable to a fine not exceeding R10 million or to imprisonment for a period not exceeding 10 years, or to both such a fine and imprisonment.

[41]   "Restricted activity" is defined in s 1(a) as follows:

"(1) hunting, catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lying in wait, luring, unluring, discharging a missile or injuring with intent to hunt, catch capture or kill any such specimen."

[42]     As was stated in S v Lemthongthai supra at paragraph [7] rhino is undoubtedly a protected species and, inter alia, hunting rhino falls under the definition of " restricted activity".

[43]   It is clear from the penalty provisions that the Legislature regards a contravention of the provisions of s 57(1) in an extremely serious light. Having regard to all the circumstances set out in this judgment and the complete absence of any mitigating circumstances such as might impel me to impose a lighter sentence I am of the view that on each count a sentence of 10 years imprisonment would be appropriate.

Counts 3, 8, 23, 28, 33, 38, 43, 53, 58 and 63

[44]   On these counts the accused have been convicted of contraventions of section 29(k) of Provincial Ordinance 19 of 1974 which provides that no person shall, unless he is the holder of a permit authorising him to do so, hunt any wild animal by means  of any device which injects an intoxicating or a narcotic agent or poison into such animal. Section 86(1) provides that any person convicted of an offence under the Ordinance, shall be liable, in the case of a contravention of section 29 involving  an endangered wild animal, to a fine not exceeding R100 000,00 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.

[45]    Once again, in the light of all the circumstances a sentence of 10 years imprisonment on each count would in my view be appropriate.

Counts 4, 9, 24, 29, 34, 39, 44, 54, 59 and 64

[46]  On these counts the accused have been convicted of contraventions of section 22A(1) of the Medicines and Related Substances Act, 101 of 1965 (illegal possession of a schedule 6 medicine or substance) in that at the same time and place they had in their possession a scheduled substance, namely M99 (Etorfine) and/or Thiafentanil listed in Schedule 6 of the Act, other thanin accordance with the prescribed conditions. In terms of section 30 of the Act they are liable " to a fine, or to imprisonment for a period not exceeding 10 years." In respect of these convictions it is an aggravating factor in my view that the accused must have somehow sourced the tranquilising fluid from Zambia. It was admitted that all the rhino died as a result of the high quantity of tranquilisers administered to them save for one of the rhino in respect of incident no 2 as well as both rhino in respect of incidents no 12 and 13. The accused clearly cared not whether the rhino survived or died. Again, in my view, an appropriate sentence would be one of 10 years imprisonment on each count.

Counts 5, 10, 25, 30, 35, 40, 45, 55, 60 and 65

[47]   On these counts the accused are charged with a contravention of section 90 of the Firearms Control Act, 60 of 2000, read with section 250 of the Criminal Procedure Act, 51 of 1977 (unlawful possession of ammunition)in that they unlawfully possessed an unknown quantity of .22 calibre ammunition while they were not the holders of valid licences in respect of firearms capable of discharging such ammunition or the holders of permits or authorisations to possess such ammunition.

[48]    In my view an appropriate sentence on each of these counts would be one of 5 years imprisonment.

[49]   The aggregate penalty in respect of all the counts on which the accused have been convicted is in excess of 400 years. Obviously such cumulative effect is excessive. In S v Nkosi and Others 2003 (1) SACR 91 (SCA) Farlam JA referred  at

[9] to such a sentence as a Methuselah sentence, namely a sentence in respect of which the prisoner would require something approximating to the longevity of Methuselah if it was to be served in full. As a matter of interest, Methuselah's, biblical age was 969 years.

[50] What was said in R v Mpofu 1985 (4) SA 322 (ZHC), cited with approval in S v Johaar 2010 (1) SACR 23 at [14], is relevant:

" [i]n all multiple crime cases the courts pay regard to what Thomas describes as 'the totality principle'. '(The court) must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'

... In effect, the accused normally receives a 'discount' for bulk offending, particularly where the various counts are similar in nature, for the imposition of a separate and consecutive sentence for each individual charge would result in a very high aggregate penalty which would be disproportionate to the moral blameworthiness of the accused having regard to his line of conduct as a whole."

In S v Skenjana 1985 (3) SA 51 (A) at 541- 55E the Supreme Court of Appeal made it clear that there is a point beyond which a long term of imprisonment is no longer able to serve any rehabilitative or deterrent purpose.

[52]  In S v Moswathupa 2012 (1) SACR 259 (SCA) Theron JA, Ponnan JA and Seriti  JA concurring, stated " where multiple offences need to be punished, the court has to seek an appropriate sentence for all offences taken together. When dealing with multiple offences a court must not lose sight of the fact that the aggregate penalty must not be unduly severe."

See too S v Johaar supra.

[51] In this regard section 280(1) of the Criminal Procedure Act 51 of 1977 is relevant. It provides that when an accused is convicted of two or more offences, the trial court " may sentence him to such several punishments for such offences ... as the court is competent to impose." Section 280(2) provides that sentences of imprisonment shall run consecutively "unless the court directs that such sentences of imprisonment shall run concurrently." As pointed out by the learned authors of Hiemstra's Criminal Procedure the real use of s 280(2) lies in the power the proviso gives a court to determine that sentences which consist of imprisonment run concurrently. It is a very convenient method of ensuring that the cumulative effect of several sentences imposed is not too severe in the light of the aggregate sentence, but at the same time does not underestimate the seriousness of the offence. 

[53]   In S v Velebhayi 2015 (1) SACR 7 (ECG) Plasket J stated as follows at [32]:

"Once the appropriate sentences have been imposed in relation to each offence of which an accused has been convicted, it is necessary for the trail court to consider the cumulative effect of the sentences and, if necessary, to ameliorate the harshness of the aggregate sentence. In such a case the sentences on several counts may be arbitrarily reduced to adduce a reasonable result when taken together.' [R v Adbullah 1956 (2) SA 295 (A) at 300 A] The court must, in the words of Trollip JA in S v Young 1977 (1) SA 602 (A), ask itself 'despite the gravity of the individual offences, is the cumulative effect of these sentences too harsh?"'

[54]    In other words I am obliged to look at the totality of the criminal behaviour and ask myself what an appropriate effective sentence for all the offences would be.

[55]          With regard to the cumulative effect of the various sentences Mr. Price stressed the principle enunciated in S v Rabie 1975 (4) SA 855 (A) at 862 G - H that in determining an appropriate sentence the court must be mindful of the foundational sentencing principle that punishment should fit the criminal, as well as the crime, be fair to society and be blended with a measure of mercy. Mr. Price relied further on what was stated in S v Harrison 1970 (3) SA 684 (A) at 686 A, namely "that justice must be done; but mercy, not a sledgehammer, is its concomitant."

[56]         Mr. Coetzee submitted that an appropriate effective sentence in all the circumstances would be one of 25 years imprisonment. I agree. An effective sentence of 25 years imprisonment is severe but, in my view, it is not out of proportion to the nature of the offences, the interests of the community and the personal circumstances of the accused. In order to achieve this it will be ordered that all the sentences in respect of the respective theft counts will run concurrently with the sentence of 15 years imprisonment imposed on each accused on count 1. It will further be ordered that all the other sentences imposed on the accused in respect of all the remaining counts will run concurrently with the sentence of 10 years imprisonment imposed on each of them on count 2.

[57]  Accordingly, on counts 1, 6, 21, 26, 31, 41, 51, 56 and 61 the accused are sentenced on each count to 15 years imprisonment. On count 36 accused no 1 and 3 are sentenced to 7 years imprisonment.

[58]    On counts 2, 7, 22, 27, 32, 42, 52, 57 and 62 the accused are sentenced on each count to 10 years imprisonment. On count 37 accused no 1 and 3 are also sentenced to 1O years imprisonment.

[59]   On counts 3, 8, 23, 28, 33, 43, 53, 58 and 63 the accused are sentenced on each count to 1O years imprisonment. On count 38 accused no 1 and 3 are also sentenced to 10 years imprisonment.

[60]   On counts 4, 9, 24, 29, 34, 44, 54, 59 and 64 the accused are sentenced on each count to 1O years imprisonment. On count 39 accused no 1 and 3 are also sentenced to 10 years imprisonment.

[61]   On counts 5, 10, 25, 30, 35, 45, 55, 60 and 65 the accused are sentenced on each count to 5 years imprisonment. On count 40 accused no 1 and 3 are also sentenced to 5 years imprisonment.

[62]   It is ordered that:

(a)    The sentences imposed on counts 6, 21, 26, 31, 36, 41, 51, 56 and 61 will run concurrently with the sentence of 15 years imprisonment imposed on count 1.

(b)   The sentences imposed on all the remaining counts will run concurrently with the sentence of 10 years imprisonment imposed on the accused on count  2.

(c)   The effective sentence in respect of each accused is therefore one of 25 years imprisonment.

J.D PlCKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of the State: Adv. J.C. Coetzee  

Appearing on behalf of the Defence: Adv. T. Price S.C.

Date of sentence: 3 April 2019

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