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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] 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 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 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

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