S v Allies (CC2/2016) [2016] ZAECPEHC 47 (1 September 2016)
- Citation
- [2016] ZAECPEHC 47
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Eastern Cape High Court, Port Elizabeth
- Panel
- Chetty
- Case number
- CC 2/2016
More details
- Court
- Eastern Cape High Court, Port Elizabeth
- Panel
- Chetty
- Case number
- CC 2/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the accused and Jansen acted with a common purpose to kill the deceased, as demonstrated by their coordinated return to the scene with firearms and their joint attack. The evidence established that the accused's conduct was part of ongoing gang violence in Port Elizabeth, which has reached epidemic proportions and undermines public safety. The court held that the prescribed sentence of life imprisonment for count 2 was proportionate to the crime and that no substantial and compelling circumstances existed to justify a lesser sentence. However, the court found that the mandatory sentence for count 5 was not appropriate in the circumstances, referencing S v Beyi. The sentences for counts 4, 5, and 6 were ordered to run concurrently with the sentence for count 2.
Court disposition
The accused was sentenced to life imprisonment on count 2, with additional sentences on counts 4, 5, and 6 to run concurrently.
Orders
- Count 2: Life imprisonment.
- Count 4: 10 years imprisonment.
- Count 5: 5 years imprisonment.
- Count 6: 2 years imprisonment.
- The sentences on counts 4, 5, and 6 are to run concurrently with the sentence imposed on count 2.
02
Material facts
Parties
THE STATE
Applicant Counsel: Adv A. CanaryLudonian Allies
Defendant Counsel: Mr H. BenceAmounts and remedies
- Fine Imposed for Previous Robbery Conviction: ZAR 1,200
03
Procedural history
Posture
Criminal Law Trial / Sentencing
04
Questions and positions
Legal issues
- 01
Whether the accused and Jansen shared a common purpose to kill the deceased.
- 02
Whether mandatory minimum sentences apply to the convictions on counts 2 and 5.
- 03
Whether substantial and compelling circumstances exist to deviate from the prescribed sentences.
Party arguments
- Applicant
- The prosecution argued that the accused and Jansen acted together with a common purpose to kill the deceased, as evidenced by their coordinated actions and use of firearms. The State submitted that the offences attract mandatory minimum sentences under the Criminal Law Amendment Act, and that the gravity of the crimes and the context of gang violence in Port Elizabeth require the imposition of severe sentences to deter similar conduct.
- Respondent
- The defence presented the accused's personal circumstances, including his age, family responsibilities, and employment history. It was argued that the accused was not a first offender but had previously received a suspended sentence for robbery. The defence sought to persuade the court that substantial and compelling circumstances existed to justify a lesser sentence than the mandatory minimum, particularly for count 5.
05
Court’s reasoning
Legal principles
- 01
Criminal Law Amendment Act 105 of 1997, s 51(1) read with Part I of Schedule 2
Mandatory minimum sentences for certain serious offences must be imposed unless substantial and compelling circumstances justify deviation.
- 02
S v Beyi 2011 (2) SACR 23 (ECG)
The principle of common purpose holds that persons acting together with a shared intent are equally liable for the resulting crime.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the accused and Jansen acted with a common purpose to kill the deceased, as demonstrated by their coordinated return to the scene with firearms and their joint attack. The evidence established that the accused's conduct was part of ongoing gang violence in Port Elizabeth, which has reached epidemic proportions and undermines public safety. The court held that the prescribed sentence of life imprisonment for count 2 was proportionate to the crime and that no substantial and compelling circumstances existed to justify a lesser sentence. However, the court found that the mandatory sentence for count 5 was not appropriate in the circumstances, referencing S v Beyi. The sentences for counts 4, 5, and 6 were ordered to run concurrently with the sentence for count 2.
Obiter and limits
- The court remarked on the escalating violence between rival gangs in Port Elizabeth and the impact on the community, noting that witnesses are often too afraid to testify.
- The shooting of the deceased was described as a senseless act triggered by a trivial dispute over drugs, highlighting the disregard for law and order among gang members.
- Courts must serve as a bulwark for society by imposing appropriate sentences to protect the community from such criminal conduct.
Court disposition
The accused was sentenced to life imprisonment on count 2, with additional sentences on counts 4, 5, and 6 to run concurrently.
- Count 2: Life imprisonment.
- Count 4: 10 years imprisonment.
- Count 5: 5 years imprisonment.
- Count 6: 2 years imprisonment.
- The sentences on counts 4, 5, and 6 are to run concurrently with the sentence imposed on count 2.
Source and reliance status
Eastern Cape High Court, Port Elizabeth
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Eastern Cape High Court, Port Elizabeth
Judgment
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: CC 2/2016
In the matter between:
THE
STATE
And
LUDONIAN
ALLIES
Accused
Coram: Chetty J
Heard: 1 September 2016
Delivered: 1 September 2016
SENTENCE
Chetty:
[1] I found that the evidence adduced proved that the accused and Jansen shared a common purpose to kill the deceased. After the accused had been rebuffed by Manuel, he took umbrage, issued threats, swore at him and left the scene. Shots then rang out. Once the deceased exited the steel gate, the accused and Jansen, who were both armed, had an altercation with the deceased whereafter both fired shots at him. Their return to the scene with firearms drawn compels the conclusion that they had a score to settle. When the deceased emerged from behind the gate, unarmed, they both fired shots at him and departed the scene. The assistance which the accused rendered to Jansen after the latter had been wounded establishes, as I remarked earlier, that the common purpose extended to their getaway.
[2] The convictions on counts 2 and 5 attract mandatory sentences of life imprisonment and fifteen years respectively pursuant to the provisions of s 51 (1) read with Part I of Schedule 2 of the Criminal Law Amendment Act[1], unless the court is satisfied that there are substantial and compelling circumstances which militate against its imposition.
[3] The personal circumstances of the accused are that he is presently 25 years of age, unmarried but the father of three minor children, the two youngest residing with him and his fiancé and the eldest with its mother. I am informed that at some stage he was employed as an operator. He is not a first offender. On 2 February 2009, he was convicted of robbery and sentence to a fine of R1200, 00 or three years imprisonment which was however suspended for five years.
[4] This case is yet another chapter in the on-going and escalating conflict between rival criminal gangs within Port Elizabeth and its environs. The congested court rolls and daily tabloid and television reports bear testimony to this unprecedented wave of violence which has reduced ordinary citizens to prisoners in their own homes. The brazenness of the gun toting protagonists bears testimony to their disdain for law and order and complete disregard for the community at large. The conflagration has reached epidemic proportions with no end in sight. When matters finally reach the courts, witnesses are too petrified to testify, as exemplified in this very case. The complainant on count 1, I was informed, refused to testify for fear of his life, notwithstanding being appraised of the repercussions.
[5] The shooting of the deceased appears to be a senseless act. Manuel’s intimation to the accused that his drug of choice was unavailable for purchase triggered a violent reaction. It commenced with a veiled threat to the owner of the house, abuse towards Manuel and random shooting in the street prior to returning to the scene. Chaos then ensued and the deceased was shot and killed. In the run up to this trial, Jansen became another statistic in the war of attrition between the gangs. He too was shot and killed.
[6] This level of criminal conduct cannot be countenanced in any civilised community. Courts of law must become the bulwark for
society’s protection by meeting out appropriate sentences to offender such as the accused. The prescribed sentence on count 2 is to my mind entirely proportionate to the crime committed. The same can however not be said apropos the conviction on count 5. See S v Beyi[2]. In the result the accused is sentenced as follows: -
1. Count 2 – life imprisonment;
2. Count 4 - 10 years imprisonment;
3. Count 5 - 5 years imprisonment;
4. Count 6 - 2 years imprisonment.
It is ordered that the sentences on counts 4, 5 and 6 run concurrently with that imposed on count 2.
________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo the State: Adv A. Canary
National Director of Public Prosecutions,
North End, Port Elizabeth
Tel: (012) 842 1432
Obo the Defence: Mr H. Bence
Instructed by Legal Aid Centre, Port Elizabeth
Tel: (041) 408 2800
[1] Act No, 105 of 1997
[2] 2011 (2) SACR 23 (ECG)
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