IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH
CASE NO: CC 26/2014
Date heard: 17 April 2015
Date delivered: 20 April 2015
In the matter between
THE STATE
And
SINDISWA ABIGAIL NDUWANE
First Applicant
MZIKABAWO WALTER DUNJANA
Second Applicant
BONGANI JOHN JANTJIES
Third Applicant
Application for leave to appeal against sentence – applicants sentenced to life
imprisonment for premeditated and planned murder – first applicant procuring
second and third applicants to kill deceased in order to secure payment of funeral
policy – no reasonable prospect that another court will find that substantial and
compelling circumstances present or that sentence disproportionate – leave to
appeal refused.
JUDGMENT
GOOSEN, J.
[1]
The applicants were convicted of kidnapping and murder and, in respect of the
murder, were sentenced to life imprisonment. The applicants sought leave to
appeal against the sentence of life imprisonment. The grounds upon which the
applications are founded, for each of the applicants, are essentially that this court
erred in finding that no substantial and compelling circumstances were present to
warrant a departure from the prescribed minimum sentence and that the
sentences of life imprisonment are shockingly disproportionate to the crime.
2
[2]
The personal circumstances of each of the applicants need not be repeated here.
It was not suggested that the court had not taken into account those personal
circumstances. Rather it was suggested that the court had erred in not finding
that the cumulative effect of those personal circumstances was to establish
substantial and compelling circumstances.
[3]
In the case of the first applicant the personal circumstances of the applicant are
not remarkable. They are that she was a 40-year-old mother who had two
previous convictions, one of which was theft and another for fraud. The social
circumstances were that she was a single mother who was living with her
grandmother at the time of the commission of the offences. They included that
she was employed as a factory worker, and had fallen into financial straits and as
a consequence, had borrowed money from an unscrupulous money lender.
When she was unable to repay him it was suggested that the deceased be killed
in order to secure the payout from a funeral policy.
[4]
In the judgment on sentence this court pointed to the fact that little or no
evidence was presented to establish the precise social and economic
circumstances that drove the applicant to commit the offence. When
consideration is given to the evidence as presented, and in particular the
unremarkable nature of the personal circumstances of the first applicant I have
little hesitation in concluding that, whether individually considered or cumulatively
weighed, there is no prospect that another court would reasonably find that those
circumstances constitute substantial and compelling circumstances which would
warrant a departure from the prescribed minimum sentence.
[5]
This court’s finding was that a sentence of life imprisonment was appropriate and
proportionate to the nature and circumstances of the crime. I do not need to
repeat those circumstances here. It is trite that a contract killing is regarded as a
severely aggravating. It is also trite that the motivation for procuring the services
of hired assassins may vary from one contract killing to another. In some
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circumstances that motivation and the reasons for doing so may evoke great
sympathy with the court in other circumstances there is no room for such
sympathy. The circumstances in which this crime was committed and the
motivation of the first applicant to engage the services of contract killers falls, in
my view, on that side of the scale where the court will have little or no sympathy
for the procurer of the contract. It is, inter alia, in the light of this that this court
found that the sentence was not disproportionate and would not give rise to an
injustice. I do not consider that there is any reasonable prospect that another
court would come to a different conclusion.
[6]
In the case of the second and third applicants, reliance was primarily placed on
their impoverished circumstances. In the case of the second appellant, his
impoverished circumstances had resulted in him embarking upon a life of crime.
He sold drugs in order to make a living. This resulted in him having six previous
convictions, most of which were for possession of drugs. In his case and in the
case of the third applicant, it was contended that drugs played a role in the
commission of the offences.
[7]
As indicated in the judgment on sentence, little or no evidence was presented on
the part of either of the applicants to establish that drugs indeed played a role in
the commission of these offences.
There was also no evidence that their
particular impoverished circumstances drove them to commit these offences.
What the court was faced with was mere conjecture in that regard. It is in the light
of this that the finding was made that their personal circumstances did not
amount to substantial and compelling circumstances which would warrant a
departure from the prescribed minimum sentence.
[8]
As with the finding in the case of the first applicant, this court found that the
imposition of life imprisonment would not be disproportionate, given the nature
and role played by the second and third applicants. They were, as noted the
hired assassins who had, without compunction agreed to commit the offences
and then carried out the terrible deed by brutally killing the deceased, for financial
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gain. In my view there is no reasonable prospect that another court would come
to a different conclusion in this regard.
[9]
In the light of the above findings it follows that the applications for leave to appeal
cannot succeed.
[10]
I therefore make the following order:
The applications for leave to appeal are dismissed.
G. G. GOOSEN
JUDGE OF THE HIGH COURT
Appearances:
Adv. Loots
The State
Director of Public Prosecutions
Adv. Van der Spuy
First Applicant
Instructed by the Legal Aid Board
Adv. Saziwa
Second and Third Applicants
Instructed by the Legal Aid Board