10
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
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(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED
25/1/2023____ ________________ DATE SIGNATURE
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CASE NUMBER: SS53/2021
In the matter between:
THE STATE
and
SIMPHIWE THANDO NDIMANDE ACCUSED 1
PHINDA TATI ACCUSED 2
ANDILE NDWE ACCUSED 3
BONGINKOSI MASANGO ACCUSED 4
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JUDGMENT - SENTENCE
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DOSIO J:
SENTENCE
[1] The four accused were found guilty of two counts. Count one is a count of murder read
with the provisions of s51(1) of the Criminal Law Amendment Act 105 of 1997 (‘Act 105 of
1997’) and count two is a charge of robbery with aggravating circumstances read with s51(1) of
[2] For purposes of sentence, this Court has taken into consideration the personal
circumstances of all four accused, the seriousness of the offences for which they have been
found guilty and the interests of the community.
THE PERSONAL CIRCUMSTANCES OF THE ACCUSED
[3] The personal circumstances of the four accused are as follows:
[4] Accused one is 36 years old and was born on 8 February 1987 in Tembisa. He is the
father of 5 children born from different mothers. The children are aged 18 years, 13 years, 10
years, 8 years and 4 years-old respectively. The highest standard passed by accused one is
standard eight in 2008. The accused has no tertiary education. His father passed away and he
has one sibling and his mother is a pensioner. At the time of his arrest he was selling clothes as
a street vendor and was earning R8000 per month. He used this money to take care of his
children and their mothers who are unemployed. He would pay all school fees and groceries.
[5] Accused one’s counsel stated that accused one pleaded not guilty but that he had no
intention to delay the proceedings. Counsel argued that accused one is fairly young. He was
arrested on 28 August 2020 and has been in custody ever since. He has a previous conviction
of possession of an illegal firearm in terms of s3 of the Firearms Control Act 60 of 2000 (‘Act 60
of 2000’) where he was sentenced in 2012 to five years imprisonment, which is more than 10
years ago. Counsel argued that the accused served 10 months imprisonment in respect to this \
charge and this served as an eye-opener.
[6] Accused two was born on 27 January 1998. He is 35 years old and not married. The
highest standard passed by accused two is grade 12 in 2007. His father passed away in 2011
and his mother lives in the Eastern Cape. He has no tertiary education. He was arrested on 1
September 2020 and has been in custody ever since. At the time of his arrest he had a
business washing cars and he also transported schoolchildren in his motor vehicle. He earned
R10 000 from transporting the children and earned R6000 washing cars. He is the father of five
children, two of them are aged 17 years and were born from different mothers. The other three
children are aged 11 years, eight years old and four years old respectively. The two children
aged eight and four years old are staying with his mother in the Eastern Cape. He was taking
care of his children and paid for the maintenance, school fees and groceries. He has no
previous convictions.
[7] Accused three was born on 14 November 1990 and is 32 years old and a first offender.
He is divorced with two children aged 16 years and two years old respectively. The accused
founded an NGO which is called ‘Black Child is Possible’. This NGO works closely with the
department of correctional services and assists with the education and reintegration of people
into the community. The 16-year-old child is also supported by this NGO. As regards the two-
year-old child, this child is supported by the accused’s ex-wife who is a teacher. Accused three
completed his matric.
[8] Accused four is 35 years old and was born on 21 August 1987. He obtained a grade
11. He is single and has three children aged 11 years, seven years and three years-old
respectively. The 11-year-old child resides with the accused’s mother and the other two children
reside with the biological mother. Due to the fact that accused four is incarcerated he is unable
to contribute to the finances of his children. He has no previous convictions and was working for
his mother, earning between R3500 and R4500 per month, transporting children. Accused four
suffers from chronic conditions namely diabetes, HIV and eczema.
THE SERIOUSNESS OF THE OFFENCE
[9] On 28 August 2020 and at 7 Nuwejaarsvoel street, Chloorkop, Birchacres, the accused
shot and killed David Nutall-Smith. They also robbed him of R20 000-00 in cash. These
offences were meticulously planned and executed with extreme precision. The deceased was
killed in the confines of his workplace where he was attacked in a viscous manner and shots
were immediately fired towards his person, before he could effectively defend himself. The
deceased was not only shot once to disable him, he was shot multiple times which accentuates
the heinousness of this crime.
[10] Murder is the most serious of crimes. Not only does it end the life of a loved family
member, leaving much hardship and pain for the remaining family members, but in this case, it
also left many employees without an employer, affecting the smooth running of this business
and its dependant employees.
[11] Even though Mrs Coetzee identified accused one, two and four from previous video
footage, and also accused three on the video capturing these events, all the accused still chose
to embark on a lengthy trial. Accused two, three and four disputed that they were ever at the
Northmead Square mall. It is only when accused two’s girlfriend testified and identified accused
two as being present at the Northmead Square mall, that the versions of accused two, three
and four changed to state they were in fact at the Northmead Square mall. It is clear that
accused two, three and four all took a chance to mislead this court, which unfortunately for
them failed.
[12] Accused one also attempted to mislead this court by stating he was shot at the MTN
taxi rank, even though there was conclusive DNA evidence found at the deceased’s work place
where he was injured by the deceased who shot back at the robbers to defend himself. Due to
the bare denial of all four accused, this trial became lengthy and lasted for nine weeks with the
State calling 21 witnesses. The video evidence used by the State, in order to prove the identity
of all four accused also contributed to the lengthy trial. Had the four accused played open cards
with the court, this trial would have been finalised much sooner.
[13] The State called three witnesses in aggravation of sentence, namely Mrs Nutall- Smith,
Maureen Coetzee and the investigating officer, namely sergeant Raselomane.
[14] Mrs Nutall-Smith testified that she was married to the deceased for 30 years and that
two sons were born of this marriage. The deceased was a hero to her two sons, namely Rory
and Daniel. Many people were affected by the passing of the deceased, namely, family and
very close friends who had known him for 35 years or less. His passing was commiserated by
friends and family all over the world who knew him. Mrs Nutall-Smith mourns the loss of not
only her best friend, but someone who’s sense of humour, love of life and knowledge, filled the
lives of many, including hers. Many people who depended on the deceased with their daily
survival, namely those who sold him his daily newspaper and those who cooked his daily meal
whilst at work, no longer have this source of income. The Red Cross nursery schools on the
East Rand to which the deceased donated generously, are also no longer receiving the
donations or services that the deceased rendered to them. The company which the deceased
opened in 1990, called DNS, suffered a considerable financial loss after the deceased’s death
and the employees who had worked for the deceased, some going back to 32 years, also lost
their jobs. The specialized bespoke balustrading which the deceased’s company made and
which is visible in many well-known places locally and outside of the country, is a testimony to
the excellence of the deceased’s work. Many of the companies who supplied material to the
deceased’s company also closed down due to the lack of support from DNS.
[15] It is quite remarkable that notwithstanding the momentous disruption caused to the
deceased’s family and employees that accused three and four instructed their legal
representative to place on record that they are not remorseful for the crime they been found
guilty of and maintain their innocence. It is noteworthy that neither accused one or two have
expressed any remorse.
[16] From the evidence of Maureen Coetzee, who is an information specialist and who
deals with the gathering of information in respect to syndicate groups, especially in respect to
bank associated robberies and followings, it is evident that robbers usually follow victims from a
secure area, like the bank, to areas with less security, namely at the houses or business
premises where victims are easily attacked and robbed. She reiterated her evidence in chief
that spotters seldom form part of the robbery and only assist and guide the gunmen to the
scene of the crime. She stated that due to the usage of burner phones these crimes are very
difficult to investigate and finalize. She also stated that there is a great economic impact on the
banks as well as victims, in that the bank will pay money to the victim if the loss occurred on the
banking premises, however in situations where the money is robbed off the banking premises,
the victim is not compensated. This is because the bank’s insurance does not cover the latter
situation. She testified that the arrest and incarceration of the four accused has had a significant
impact on these types of incidents. She compared the period before the suspects were
incarcerated with the period after they were arrested. The statistics were collected from the
ABSA crime management system and Bidvest Protea Coin on behalf of FNB bank and
Nedbank. The South African Banking Risk Information Center (‘SABRIC’) was also approached
in order to obtain statistics pertaining to the prevalence of bank associated robberies. As per
exhibit ‘QQ’, it is clear that from 2016 to 2018 the bank associated robberies were high and that
in respect to ABSA bank, Nedbank and FNB bank there was a decrease in these crimes after
the accused’s where arrested in late 2020. The SABRIC statistics also show a decrease of
bank associated robberies after these four accused were incarcerated in late 2020. It is true
that these statistics are national statistics, however as stated by Mrs Coetzee, the prevalence of
the bank associated robberies and followings are mostly in Gauteng, with other provinces
contributing minimally to this crime.
[17] The investigating officer namely sergeant Raselomane testified that accused one,
two and four are awaiting the completion of a case in the Kempton Park Regional Court where
the accused are facing similar charges of bank associated robberies. The matter is part-heard
and the accused have not as yet been convicted or acquitted.
INTERESTS OF THE COMMUNITY
[18] This country has witnessed an ever-increasing wave of violence. Innocent and
defenceless victims continue to fall prey to these types of offences. In this instance, an
employer and business man was killed, whose demise has left a serious void not only in his
family and friends, but the business community.
[19] In respect to the interests of the community, this court has taken note of the fact that
the community observes the sentences that courts impose and the community expect that the
criminal law be enforced and that offenders be punished. The community must receive some
recognition in the sentences the courts impose, otherwise the community will take the law into
their own hands. If a proper sentence is imposed, it may deter others from committing these
crimes. Due to the fact that murder of helpless and innocent victims has reached high levels, the
community craves the assistance of the courts.
[20] In S v Msimanga and Another 1, The Supreme Court of Appeal s held that violence in any
form is no longer tolerated, and our Courts, by imposing heavier sentences, must send out a
message both to prospective criminals that their conduct is not to be endured, and to the public
that Courts are seriously concerned with the restoration and maintenance of safe living conditions
and that the administration of justice must be protected.
[21] In respect to the murder count, s51 (1) of Act 105 of 1997 dictates that if an
accused has been convicted of an offence referred to in part 1 of schedule 2, he shall be
sentenced to life imprisonment.
[22] Section 51 (3) of Act 105 of 1997 states that if any court referred to in subsection (1) or
(2) is satisfied that substantial and compelling circumstances exist which justify the imposition
of a lesser sentence than the sentence prescribed in these subsections, it shall enter those
circumstances on the record of the proceedings and must thereupon impose such lesser
sentence.
[23] In the case of S v Malgas 2, the Supreme Court of Appeal held that:
‘if the sentencing court on consideration of the circumstances of the particular case is satisfied that they
render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the
needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a
lesser sentence.’3
[24] Notwithstanding the application of the prescribed minimum sentences in respect to count
1 and 2, this court has considered other sentencing options, however direct imprisonment is the
only suitable sentence as all four accused are a danger to the community.
[25] This court cannot only consider the accused’s personal circumstances, but must also
consider the interests of the community as well as prevention and deterrence. To focus on the
well-being of the accused to the detriment of the interests of the community would result in a
distorted sentence.
[26] The fact that accused one is 36 years old, accused two is 35 years old, accused three is
32 years old and accused four is 35 years old is certainly a positive factor in their favour, but it
can hardly be a substantial and compelling circumstance on its own. (see Shubane v The State
(073/14) 2014 ZASCA 148 26 September 2014).
[27] In the case of S v Matyityi 4 the Supreme Court of Appeal held that:
‘at the age of 27 the respondent could hardly be described as a callow youth. At best for him his
chronological age was a neutral factor’.5
[28] Matyityi 6 stated further that:
‘Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs
our country. The situation continues to be alarming…one notices all to frequently a willingness on
the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the
flimsiest of reasons… As Malgas makes plain courts have a duty, despite any personal doubts about the
efficacy of the policy or personal aversion to it, to implement those sentences…Courts are obliged to
impose those sentences unless there are truly convincing reasons for departing from them. Courts are not
free to subvert the will of the legislature by resort to vague, ill-defined concepts such as ‘relative
youthfulness’ or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing
officer’s notion of fairness.’7
[29] Any offence which has the effect of holding a human life cheap and involves any loss of
life is serious. This sentiment should be reflected in the sentence imposed by the courts.8
[30] The charge of murder on count one falls under the provisions of part 1 of schedule 2 in
that the offence was premeditated and was committed by a group of persons acting in the
execution or furtherance of a common purpose.
[31] On behalf of the third and fourth accused, it was argued that the substantial and
compelling circumstances which exist are that both have no previous convictions and they spent
a long time awaiting trial in prison. It was also argued on behalf of accused three that because he
was a spotter and was not present when the shooting of the deceased occurred, that this should
be regarded as a substantial and compelling reason not to impose the minimum sentences. In
addition, on behalf of accused four it was argued that because he stood at the gate of the work
premises when the shooting occurred, that he too should not be sentenced as per the minimum
prescribed sentences.
[32] This court finds that although the BMW turned right in Nuwejaarsvoel street, it had
followed the deceased’s vehicle all the time and the occupants of that vehicle, although they
were not in the premises of the deceased’s business grounds, a prior agreement had been
reached that the VW Polo would follow the deceased into the business premises. The role that
the BMW occupants had played as spotters, had been executed. As agreed, the duty to rob and
shoot the deceased now passed over to the occupants of the VW Polo. As a result, this Court
found that both the occupants of the BMW and the occupants of the VW Polo had a common
purpose to rob and shoot the deceased. This prior agreement to shoot is clear from the
evidence of Patrick Dinginglela who stated that before the deceased could even finish asking
what the robbers were doing in his business premises, he was shot. The role of the spotters is
just as heinous as the role of the gunmen who pulled the trigger as the spotters enabled the
completion and fulfilment of the crime. This Court finds no reason to impose different sentences
in respect to all four accused. They are all equally guilty of this very serious crime.
[33] As regards the fact that accused two, three and four have no previous convictions is not
a substantial and compelling circumstance to depart from the minimum prescribed sentence.
[34] Count two falls under the provisions of schedule 2 part 11 and the minimum prescribed
sentence is 15 years imprisonment applicable for a first offender of robbery with aggravating
circumstances. All four accused were working prior to their incarceration in this matter.
Accordingly, the crimes were not committed out of need but out of greed.
[35] This Court finds there are no substantial and compelling circumstances present in
respect to the accused that warrants a departure from the prescribed statutory sentence in
respect to count one or count two.
[36] All four accused have been in custody since between August and October 2020. In the
case of DPP v Gcwala 9, it was held that the period in detention pre-sentencing is but one of the
factors that should be taken into account in determining whether the effective period of
imprisonment to be imposed is justified and whether it is proportionate to the crimes committed. It
was further stated in this case that the test is not whether on its own that period of detention
constitutes a substantial and compelling circumstance, but whether the effective sentence
proposed is proportionate to the crimes and whether the sentence in all the circumstances,
including the period spent in detention prior to conviction and sentence is a just one. This Court
has taken into consideration the period of the detention of all four accused, however, this Court
finds that a term of life imprisonment in respect to count one is still justified.
[37] In the result, the following order is made:
Count 1
In respect to count 1, all four accused are sentenced to life imprisonment.
Count 2
In respect to count 2, all four accused are sentenced to 15 years imprisonment.
In terms of s103(1)(g) of Act 60 of 2000, accused two, three and four are declared unfit to
possess a firearm.
________
D DOSIO
JUDGE OF THE HIGH COURT
Date Heard : 24 January 2023
Judgment handed down: 25 January 2023
Appearances:
On behalf of the State Adv Le Roux
On behalf of the Accused 1 and 2 Adv Moloi
On behalf of Accused 3 and 4 Ms Simpson
1 S v Msimanga and Another 2005 (1) SACR 377 (A)
2 S v Malgas 2001 (1) SACR 469 SCA
3 Ibid para I
4 S v Matyityi 2011 (1) SACR 40 SCA
5 Ibid para 14
6 Matyityi (Note 4 above) para 24
7 Matyityi (Note 4 above) para 24
8 see Human 1979 (3) SA 331 (E) AT 337 C and Khumalo 1984 (4) SA 642 (W) AT 643 E
9 DPP v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014)