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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:SS310/05

DATE: 2006/08/11

In the matter between

THE STATE

and

MASHININI MAGWEGWE LAWRENCE....................................................................... Accused

JUDGMENT

WILLIS, J: It is well established in these courts and reflects the accumulative 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 interests of society.

Accused 1 was 19 years of age at the time of commission of his crimes. He grew up in Soweto with both his parents.

Accused 2 was 17 years of age. He also grew up in Soweto and, at the tine that these crimes were committed, was living with his grandparents also in Soweto. Accused 2 has two relevant previous convictions. He was convicted on 21 April 2005 for housebreaking and theft, both crimes committed on 7 November 2004.

These were horrific crimes. A citizen was innocently going about his ordinary everyday business as innumerable South Africans do every day. Shortly after night-fall, he was paying a visit to his fiancee and was in the process of gaining access to the premises when he was held up and shot, with a view to hijacking his vehicle.

The deceased was 50 years of age at the time He had a furniture manufacturing business which he ran with his daughter. That business employed 30 people. After his murder, his daughter, not surprisingly, became demoralized, the business went down and more than 20 people were retrenched, the business was sold and its fate is now unclear.

I have said on several occasions previously in this Court that crimes such as these cause untold damage to the economy of the country. They deter literally billions of rands of domestic investment and international foreign investment coming to South Africa.

Only today in the newspapers are published reports of the massive skills exodus from South Africa. The principal reason been the pervasiveness of this kind of crime. A skills exodus restricts the capacity of the economy to grow and the capacity of that economy to create new jobs.

People such as the accused should realize the enormous price that is paid not only for the immediate family of the deceased but throughout our society.

In this particular case it is clear from the evidence that these two accused were responsible for some 20 people losing their jobs. It is not difficult to imagine that each of those persons who lost their job had several dependants. Dire economic consequences resulted from these actions.

The deceased was also a 4x4 adventure enthusiast. He participated in innumerable events and competitions throughout the African Continent and won several awards and prizes. Clearly the victim in this hijacking incident was a valued member of our community who fully lived his life with zest and enthusiasm. In this regards he was an example to many others in our society.

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 general deterrent - in other words, it must deter other members in the community from committing such acts, or thinking that the prize for wrong doing is worthwhile.

2. It must act as a specific deterrent - that is it must deter this individual from being tempted to act in such a manner ever again.

3. It must enable a 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 satisfy society's desire for retribution - in other words

society's outrage at serious wrong doing must be placated.

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

The court is obliged in terms of Section 51 of the Criminal Law Amendment Act 105 of 1997 to impose a sentence of life imprisonment for accused 1, he being over 18 years at the time of commission of the murder and 15 years for the robbery.

This section is saved by the provisions of sub-section 3 which permits a lesser sentence if there are substantial and compelling circumstances which justify the imposition of such lesser sentence.

Accused 1 after his conviction testified in mitigation of sentence. He admitted that he was guilty of the crimes in question. He expressed remorse and asked the family of the deceased for forgiveness. He said that Zakhele Radebe had fired the shot which killed the deceased. That fact appears in the statement which he made before the police which was admitted in evidence and it was relied on inter alia for the conviction of accused 1.

There is evidence allunde which strongly suggests that it was in fact Zakhele Radebe who fired the shot. It would seem that he was the master-mind behind the hijacking. He took his sister's Corsa without her permission, in order to travel to Johannesburg to commit the crime. He was older than all the others. He died in the street chase which resulted in a collision and it would seem that he was thrown from the vehicle. This strongly suggests that he was the passenger in the vehicle and in the compartment in the door of the passenger vehicle was found a firearm which was used to murder the deceased.

I am therefore prepared to accept in favour of accused 1 that it was Zakhele Radebe who committed the actual physical murder of the deceased. I am no doubt that there will be many in our society who believe that Zakhele Radebe received his just desserts.

Nevertheless if I take the cumulative effect of the following: (1) accused 1's relative youthfulness and (2) the fact that he was not the one who fired the shot that killed the deceased, and (3) that he has now admitted his guilt and expressed remorse, I am satisfied that there are substantial and compelling circumstances which justify a lesser sentence for the crime of murder than life imprisonment. I am not however satisfied that there are substantial and compelling circumstances which justify a lesser sentence in respect of the crime of robbery.

Accused 2 also gave evidence in mitigation after his conviction. He admitted his guilt and his participation in these crimes. He admitted stealing his grandfather's firearm and handing it to Zakhele Radebe. He admitted being part of the conspiracy to hijack the vehicle. He too expressed remorse and asked the family of the deceased for forgiveness. He said that he committed this crime because he wanted to have money for designer clothes and designer shoes and in order to be able to attract girlfriends. He said that he was under the influence of others. He deserves some respect for his candour.

Too often the apologists for the rampant, serious crime in this country attribute the cause to poverty. When it comes to hijacking, we are not dealing with the poor widow who steals a loaf of bread from a supermarket.

In this case poverty was not a factor. Accused 2 lived in a three bedroomed home in Pimville, Soweto. Each person had his own bedroom. Accused 2's grandfather could afford to buy a firearm and a safe in which to keep it. The safe was concealed in a built-in-cupboard. I dislike having to sound like an old man, but I remember well the days when built-in-cupboards were the acme of middle class luxury.

Zakhele Radebe took his sister's almost brand new Opel Corsa from her without permission in order to commit the crime. The sister at the time was holding a party to celebrate the christening of her baby.

All of this does not suggest poverty to me. Accused 1 was privileged to be brought up by both his parents. Crimes such as this have to do with values that have gone awry.

For this all of us must share part of the blame. We live in a time of rampant materialism which is undermining our values the most important of which is respect for our fellow human beings. It is enshrined in our constitution in the term in "dignity". All of us in authority, all of us in positions of any influence whatsoever have to emphasise that human beings deserve respect for what they do and not for what they have.

The case of hijacking requires no special skill, no special effort. It requires cold-blooded opportunism in order to make easy material gain. This court must set its face firmly against such conduct.

In the case of accused 2 because he was 17, and therefore in terms of the Criminal Law Amendment Act, falling within the designated period of being older than 16 years but under than 18 years, there is no prescribed minimum sentence and I feel to exercise an appropriate discretion in this regard.

I take into account in respect of accused 2 his relative youthfulness, the fact that he too was not the one who pulled the trigger which killed the deceased, that he was not even part of the pair who confronted the deceased at the gate of his fiancee's premises, his admission of guilt, his display of remorse and his acting under the influence of persons who were older then himself.

In respect of accused 1's escape from custody I take into account the fact that it was a spontaneous escape and in all probability he was assisted by other persons who had ran out of the premises which were entered into by the police when they went to arrest accused 2.

Will the accused please stand while I pronounce sentence.

Count 1, the murder count, accused 1 is sentenced to 20 years imprisonment, accused 2 is sentenced to 15 years imprisonment.

Count 2, the robbery with aggravating circumstances, each of the accused is sentenced to 15 years imprisonment.

In respect of count 3, the contravention of the unlawful possession of a firearm, each of the accused is sentenced to three years imprisonment.

In respect of count 4, the unlawful possession of ammunition, each of the accused is sentenced to one year imprisonment.

In respect of count 5, the escape from lawful custody accused 1 only, is sentenced to 2 years imprisonment.

Each of the accused is declared unfit to possess a firearm.

In respect of accused 1, the sentences on counts 2, 3, 4 and 5 are to run concurrently with the sentence on count 1.

The effective sentence accordingly for accused 1 is 20 years imprisonment.

In respect of accused 2, sentences on counts 2. 3 and 4 are to run concurrently with the sentence on count 1.

The effective sentence accordingly for accused 2 is 15 years imprisonment.

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