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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: SS116/2000

DATE:2001-08-30

In the matter between

THE STATE

and

MICHAEL MZWAKHE NDLOVU.................................................................................Accused 1

ROTHMAN ZIKHALI KHUZWAHYO...........................................................................Accused 2

SENTENCE

WJLLIS J: It is well established in these courts and reflects the cumulated wisdom of many generations that sentence should fit the criminal as well as the crime, be fair to the state and to the accused and be blended with a measure of mercy. It must also reflect the interest of society.

1. Accused 1 is now 29 years of age. He has three children although he is not married. He completed standard 8 education. At the time of commission of these offenses he was unemployed. Although a few months previously he had been employed at a Steer Restaurant. He has no previous convictions.

2. Accused 2 is 24 years of age. He has one minor child who lives with the child's mother. He is unmarried. Accused 2 has education up to the level of standard 2. He also has no previous convictions. I accept that the social and economic background of both of the accused may fairly be described as deprived.

These crimes are very serious indeed. The accused stooped very low to commit them. An ordinary innocent citizen going about his legitimate daily activities was gunned down in cold blood. This is a so-called hijacking case and it is precisely the type of crime which causes so much anxiety in our community with appalling social and-economic consequences. Crimes such as these have a direct impact upon investment in South Africa. This in turn impacts upon the capacity of the economy to grow. In turn this impacts upon the capacity of our economy to create new jobs. Thus a vicious cycle is set in motion from which there is no easy escape and for which there are no easy solution. Nevertheless this case illustrates very well that the ready availability of firearms is a scourge which must be eradicated from society.

Here we have two unemployed men who did not even have the money to pay for the petrol to transport themselves to KwaZulu, received R15 000. The task is as easy as taking candy from a baby. There has been in this case a despicable abuse of a firearm and in the process, as I have already indicated, a person doing his ordinary, legitimate activities was gunned down in cold blood. To the extent that a severe sentence will be an aid in eliminating society from this scourge then I have no hesitation whatsoever in playing my part.

In addition to what I have said in the opening lines of this judgment, sentence also has five important functions.

1. It must act as a genera! deterrent. In other words it must deter other members of the community from committing such acts or thinking that the price for wrong doing is worth while.

2. It must act as a specific deterrent. In other words it must deter these individuals from being attempted to act in such a manner ever again.

3. It must enable the possibility of correction unless this is very clearly not likely.

4. It must be protective of society. In other words society must be protected from those who do it harm.

5. It must serve society's desire for retribution. In other words society's outrage at serious wrong doing must be vacated.

Clearly in this case a lengthy period of imprisonment is warranted in order to serve each of these five functions. I have no doubt that the community as a whole cries out aloud for a lengthy and severe sentence in a case such as this.

This court is obliged in terms of section 51 of the Criminal Law Amendment Act, no 105 of 1997 to impose a sentence of life imprisonment for the commission of the murder. The murder having been committed in the course of a robbery and a sentence of 15 years for the robbery with aggravating circumstances, a firearm having been used in its commission. This section is saved by the provisions of subsection 3 which permit a lesser sentence if there are substantial and compelling circumstances which justify the imposition of a lesser sentence.

I have given this matter anxious consideration. There are, in my view, no substantial and compelling circumstances present to justify the imposition of a lesser sentence than life imprisonment for the murder and 15 years for the robbery. In my view to find substantial and compelling circumstances in a case such as this would be to flout the clear intention of the legislator. It would also make a mockery of society's convictions regarding these kind of crimes.

The following are the sentences which are imposed upon both accused:

1. Count 1, the robbery count, robbery with aggravating circumstances - 15 years imprisonment.

2. Count 2, the kidnapping count - the accused were acquitted on this count and there is obviously no sentence in regard to this count.

3. Count 3, the murder count - life imprisonment.

4. Count 4, contravening section 2 read with sections 1 and 39 of Act 75 of 1969, unlawful possession of firearm - three years imprisonment.

5. Count 5, contravening section 36 read with sections 1 and 39 of Act 75 of 1969, unlawful possession of ammunition - six months imprisonment.

—oOo—

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