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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: CC18/21

In the matter between

THE STATE

GCINITHEMBA BEJA ACCUSED

1

FUNDILE MASETI ACCUSED

2

JUDGMENT delivered 18 April 2024

THULARE J

[1] The accused were convicted of seven counts of murder read with the provisions of
section 51(1) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) (as
amended) (the CLAA), three counts of attempted murder read with the provisions of
section 51(2) of the CLAA, one count of unlawful possession of a firearm and one count
of unlawful possession of ammunition. Section 51(1) f CLAA prescribes life
imprisonment for the murder premeditated or planned, unless the court finds substantial
and compelling circumstances to deviate from the prescribed sentence. Section 51(2)(c)
prescribes, for attempted murder as envisaged, in respect of a first offender, to
imprisonment for a period not less than 5 years unless the court finds substantial and
compelling circumstances to deviate from the prescribed sentence. In terms of section 3
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read with 90 and 121 of the Firearms Control Act, 2000 (Act No. 60 of 2000), read with
schedule 4, an accused convicted of unlawful possession of firearm and ammunition
may be sentenced to a fine or maximum period of imprisonment of at least 15 years per
count.

[2] The issue is an appropriate sentence in respect of each count for each of the
accused.

[3] Accused 1 is the last born child and has 5 siblings, one of whom is deceased. His
parents were married and raised their children together in a stable family. The accused
did not in early childhood until early adulthood present any behavioural negativity or
violent personality to his family. The accused himself did not report any negativity or
trauma relating to his upbringing. He is 33 years and was 30 years at the time of the
commission of the offence. He was unmarried but had two sons, twins aged 10 years
and a 3 year old daughter. The accused met his daughter for the first time at the request
of the court when the matter was postponed for sentence, through the intervention of
the probation officer during the consultation and preparation of the pre-sentence report.
He spent an hour with the child. Never seeing his daughter before was primarily
because of prison prescripts as regards visits by infants influenced by measures to
protect young children against covid-19 and its effects. The daughter was born during
the covid-19 lockdown, when the accused was already in custody. The twins and the
daughter had different mothers. The sons lived with the accused’s retired parents in
Lady Frere in the Eastern Cape whilst the daughter lived with her mother in Cape Town.
The accused’s father was, before retirement, the sole breadwinner for the family and
had the support of the accused’s elder siblings when they started working. The parents
now depend on older persons’ grants and the twins’ child support grants. The accused
daughter is supported by its mother solely after the accused was detained. She did not
qualify for child support grant. The accused’s relationship with his family was stable. His
girlfriend described him to the probation officer as a non-violent person with a lovely and
caring personality.
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[4] The accused family occupied a six-room house in Khayelitsha site B, Y section, and
the accused lived in the backroom. He completed his foundation phase education and
dropped out of school in grade 11. In 2016 he worked at Pick n’ Pay as a packer. From
2017 until his arrest in 2020 he worked in the township as a stock taker at Ngquzi
tavern. From his income he supported his children and assisted his parents where
necessary. He was a soccer player and later became a soccer coach in his community.
He assisted with house chores at home. He was affiliated to the Zion church as a
Christian and was a part-time attendee because of work commitments. He was a social
drinker and used alcohol occasionally and did not use any substances. He was
physically, psychologically and emotionally stable. On one of the two prison visits by the
probation officer the accused reported body pains which he attributed to the random
search conducted by prison authorities the previous day, and was advised to seek
medical attention at the institutional medical facility. The accused had one previous
conviction of unlawful possession of a firearm and ammunition and served a term of
imprisonment between 2013 and 2015. He did not acknowledge responsibility for the
offences that he was now convicted of. He had been in detention since his arrest on 8
March 2020 which was 4 years.

[5] Mr Simphiwe Victor Giyo, a probation officer in the Department of Social

Development at Metro East Region in the Western Cape, stationed at Khayelitsha, who
provided a report at the request of accused 1, concluded his analysis on his pre-
sentence report by stating the following:
“With the accused in custody at Pollsmoor Correctional Service ever since his arrest
during March 2020, there is no extra income to support or taking care of his children.
Hence it can be said that the family’s hope is on the court’s mercy during the
sentencing, as they hope for less sentence that will see him reuniting with his children in
a shorter timeframe.

Irrespective of whether the accused does or does not accept responsibility, he needs to
be held accountable for his actions. The complainant/victims of crime and the
community expect to see the law playing its role in terms of community safety and as
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part of crime reduction strategies. Therefore, justice has to be served to ensure the
safety and the economic growth of our country. In so doing the court has to take in
cognizance of the years the accused spent in prison. The responsibilities he left behind
and the age of the accused and his children.”
Mr Giyo amongst others considered the sentencing options and cannot be faulted for
his conclusion that the most appropriate sentence he recommended was direct
imprisonment.

[6] Accused 2 took the witness stand to inform the court that he stood by his innocence
and did not take any responsibility for the offence, and in protest to his conviction and
imminent sentence, was not willing to make any contribution in mitigation of sentence.
Against the background of this position, and the responsibility of Adv. Paries to advance
the case of and to protect and advance the interests of his client, I can only record my
appreciation of the calm, calculated and firm manner in which Adv. Paries navigated
what must count as one of the most difficult instructions and trial he was involved in.
When regard is had that it was in this matter where during the trial, accused 1 lost his
legal representative, Adv. Gladile, who was shot and killed, Adv. Paries brought truth to
some writing whose author I could not recall, which said: “I can solve any problem, but
to solve some, I must have time for and have to cry first.” In his evidence on the merits,
accused 2 had indicated that he was married and had a son. He lived in his own
property in Khayelitsha and ran a chicken business. Accused 2 had been in custody
since 17 May 2021 which was nearly 3 years.

[7] The City of Cape Town is one of the areas in the Republic, which is in the eye of a
storm of extortion. The failed expectations, high rate of unemployment and lack of
opportunities for young people resulted in many young people, especially Blacks,
getting poorer, in the midst of the cost of living that is rising. The poverty, for the greedy
and moral ‘factory faults’ of society, has created a fertile environment for crime. Greed
has for them made poverty and crime blood cousins. It is not for a judge to debate
whether the historical education and settlement patterns with larger black residential
areas than whites in towns and cities across the country, and the preparation of a Black
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child to be minded to expect the small white community to provide employment

opportunities is to blame, or whether the paradigm shift necessary to inculcate the
attitude of grabbing the devil of entrepreneurship by its tail with a “wafa wafa” spirit and
as they say in the hoods of our capital city, “chancer bari mhlambe uzophumelela”
mindset and adrenalin will liberate the Black majority financially and economically. The
observation that I can make, from the facts of the case before me, is that in the black
settlement areas of Cape Town, greedy criminals solicit money from business people. If
you refused to pay or cannot afford, they threaten to make your life a living hell, with the
result that you could not continue doing business. They would rob, or even kill you.
Extortion and harassment were alive and kicking. The criminals deem themselves
entitled to the share of any income, not just profits. Unless they meet the authority of the
State face to face, they remain unstoppable. The extortion and harassment became an
unwelcome influence, but had an economic effect in alleviating poverty for those
practicing it. It did not just become standard practice, but seems to have become a
lucrative business.

[8] The attack on Q166, Khayelitsha, which found the convictions against the accused,
was a consequence of a fall-out in the battle for extortion turf, which caused bad blood
between the accused and their erstwhile friend, Ntera. The accused together with others
ambushed a now deceased co-extortionist, Ntera at his birthday party attended by
patrons which included Ntera’s friends, visitors and relatives. In a scene reminiscent of
the Wild Wild West television series, the accused together with others made a grand
entrance, carrying big and small guns, and shot randomly at attendees. Ntera himself
had been shot earlier elsewhere just before the accused’s arrival at Ntera’s home. The
victims at the party were innocent attendees who were not involved in gangsterism or
extortion also called “protection fee”. Ntera’s 6 year old daughter at the time, was not
only shot at, but also kicked by one of the shooters who had entered the house. The
attack was intended to send a message to anyone who crossed the path of the Gupta-
gang, that it was not only the betrayer who was placed in danger, but anyone who
associated with such crosser. If it was not so, the accused could have clearly retaliated
and ambushed Ntera without involving innocent people. As I mentioned in the judgment
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on the merits, the attack was brazen and meant to enforce an iron grip to the
community. The accused ruled the Khayelitsha community through the use of a bullet
and ran a parallel authority to that of the State. They made sure that the community
lived in fear. After the shooting, accused 2 came back not only to be an onlooker, but he
observed who of the community members was talking to the police and in fact jumped
the tape barricade to where one community member was talking to the police to monitor
what was being said to the police. Not only was Mr X intimidated by the accused. There
were members of the police who he knew as close to the Guptas, who asked him why
he was at the police station and also told him that he liked being at the police station. Mr
X was hounded even when he was in police protection. He had to be re-routed when
the destination to a safe place became known to the Gupta gang, of which the accused
were members. The Guptas worked with some police officers and had an established
network in their rule by the bullet through gangsterism, forceful demand for ‘protection
fees’ and extortion.

[9] The murders of rival gangs, random civilians and children is a daily reality in the
settlements especially of blacks in the City of Cape Town. This is a pandemic that is
alarming and has engulfed the city. The pandemic results in the prevalence of murders,
attempted murders and unlawful possession of firearms and ammunition. In this matter,
Nokwanele, Ntera’s sister, testified as a victim of crime. The physical harm suffered by
her and Ntera’s child was not only limited to their bodily harm. Nokwanele had to
immediately after the shooting go into induced labour as there was a threat to her
unborn child as it was during an advanced stage of her gestation period. Amongst
others the unborn child no longer made movements that a pregnant mother would feel
to instill the peace that the child was still alive. Ntera’s 6 year old daughter was shot at
and injured, and was also kicked with booted feet by an adult male. After the shooting,
the Makhetha family had to do the ritual cleansing for which the family had to spend
money to “wash the blood of the deceased and injured’ from their household. As if that
was not enough, they had to move from Q166 and go and rent property. This was as a
result of the psychological harm done to the family. Nokwanele and Ntera’s daughter
could no longer live in their home because they had reflections of what happened to
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them in that house, and relived the trauma daily. This was also the social and economic
effect of the crime on them, which was likely to also sustain for sometime into the future.
The surviving members of the Makhetha family are being blamed by other families who
lost their loved ones, as being the ones responsible for the ambush at the party. The
wrong done extends beyond Nokwanele and Ntera’s daughter and has tainted the
whole family name. The sins of Ntera and the accused are now visited upon the
innocent members of the Makhetha family.

[10] For the sentences on murder and attempted murder, my starting point was not a
clean slate upon which I was free to inscribe whatever sentence I thought appropriate.
For the murder counts it was imprisonment for life, and for the attempted murder,
imprisonment for not less than 5 years [S v Matyityi 2011 (1) SACR 40 at para 18]. In
that paragraph 18 the SCA also referred to paragraphs 8 and 9 of S v Malgas 2001 (1)
SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220 where it was said:
“[8] In what respects was it no longer to be business as usual? First, a court was not to
be given a clean slate on which to inscribe whatever sentence it thought fit. Instead, it
was required to approach that question conscious of the fact that the Legislature has
ordained life imprisonment or the particular prescribed period of imprisonment as the
sentence which should ordinarily be imposed for the commission of the listed crimes in
the specified circumstances. In short, the Legislature aimed at ensuring a severe,
standardised, and consistent response from the courts to the commission of such
crimes unless there were, and could be seen to be, truly convincing reasons for a
different response. When considering sentence the emphasis was to be shifted to the
objective gravity of the type of crime and the public's need for effective sanctions
against it. But that did not mean that all other considerations were to be ignored. The
residual discretion to decline to pass the sentence which the commission of such an
offence would ordinarily attract plainly was given to the courts in recognition of the
easily foreseeable injustices which could result from obliging them to pass the specified
sentences come what may.
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[9] Secondly, a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to impose the specified sentence.
As was observed in Flannery v Halifax Estate Agencies Ltd by the Court of Appeal, 'a
requirement to give reasons concentrates the mind, if it is fulfilled the resulting decision
is much more likely to be soundly based - than if it is not'. Moreover, those
circumstances had to be substantial and compelling. Whatever nuances of meaning
may lurk in those words, their central thrust seems obvious. The specified sentences
were not to be departed from lightly and for flimsy reasons which could not withstand
scrutiny. Speculative hypotheses favourable to the offender, maudlin sympathy,
aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy
implicit in the amending legislation, and like considerations were equally obviously not
intended to qualify as substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation of co-offenders
which, but for the provisions, might have justified differentiating between them. But for
the rest I can see no warrant for deducing that the Legislature intended a court to
exclude from consideration, ante omnia as it were, any or all of the many factors
traditionally and rightly taken into account by courts when sentencing offenders. The
use of the epithets 'substantial' and 'compelling' cannot be interpreted as excluding
even from consideration any of those factors. They are neither notionally nor
linguistically appropriate to achieve that. What they are apt to convey is that the ultimate
cumulative impact of those circumstances must be such as to justify a departure. It is
axiomatic in the normal process of sentencing that, while each of a number of mitigating
factors when viewed in isolation may have little persuasive force, their combined impact
may be considerable. Parliament cannot have been ignorant of that. There is no
indication in the language it has employed that it intended the enquiry into the possible
existence of substantial and compelling circumstances justifying a departure, to proceed
in a radically different way, namely by eliminating at the very threshold of the enquiry
one or more factors traditionally and rightly taken into consideration when assessing
sentence. None of those factors have been singled out either expressly or impliedly for
exclusion from consideration.”
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[11] Both accused had no remorse. They had no pain of conscience for the plight of the
deceased, the injured or the fear which gripped the community of Khayelitsha and
beyond. They had no appreciation of the extent of their error. They demonstrated no
action which manifested feelings of sorrow and regret for having done wrong. The
viciousness of the deeds of the accused resulted in heinous offences. The accused took
more than one life in a very callous manner, to instill fear so that they become
unstoppable, to support their greed. The circumstances surrounding the multiple killing
of innocent party goers simply to send a message to a competing gangster, who used to
be their friend and partner in crime that they will not tolerate any betrayal and
disturbance of their territory for extortion is alarming. Whilst extortion has become
fashionable, and a few members of the SAPS in Khayelitsha have become partners in
that criminal enterprise, the conviction and sentence in this matter gives hope that with
the help of community members like Mr X, the industry of the Anti-Gang Unit members
and other members of the SAPS who are not moved by corruption, and other role
prayers like fearless members of the National Prosecuting Authority, South Africa is on
its path to win the battle. The clarion call remains, the cowards must move to the back,
and let the brave lead.

[12] Accused 1 grew up in a stable home and was raised by both parents. According to
him he was a star academic performer in basic education. I am inclined to accept this as
throughout the trial, accused 1 demonstrated above average intelligence in his
engagement with the issues and the instructions he gave to his legal representatives,
initially Adv. Gladile and later Adv. Paries. It takes an intelligent person, who has
accepted the possibility of long term imprisonment, to seek a probation officer’s report
not as part of the collection of the portfolio of evidence for the mitigation of sentence,
but simply calculated to pierce the regulatory framework at prison through judicial thrust,
so as to enable him to see his infant child. This is what accused 1 told, including to Mr
Giyo the probation officer. Accused 1 dropped out of school at grade 11. It is
unfortunate that the probation officer did not obtain the portfolio of evidence from the
schools which accused 1 attended, to help determine what manner of support, if any,
was given to the accused by both the Department of Education and where necessary
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working with the Department of Social Development. As things stand, it is difficult to

determine whether there was a systemic failure by Educators and Social Workers, or
whether it was the influence of the social circumstances of the community of
Khayelitsha, or whether it was a deliberate decision of accused 1 to drop out of school.
As I told him, he owed himself, his family, his community and his country including the
world, the benefits of his industry and intellect, which was wasted in criminal activities.
His intelligence and mental capacity, in my view, added to his blameworthiness.
Accused 1 was not primary caregiver of his children. The twins were care for by his
parents and daughter by its mother.

[13] Accused 2, throughout the trial, lacked affection and warmth. It is as if he had no
feelings. Even after conviction, he had no feeling of sympathy towards other people.
Unlike accused 1, accused 2 can be described as someone who showed no
understanding for other people’s sufferings. Even when explained what the moment of
mitigation entailed, he had no sympathy, interest or sensitivity even to his own fate. He
was simply cold-hearted throughout the proceedings. Accused 2 chose not to
participate substantively in mitigation of sentence, except to take the witness stand and
under oath to tell the court that he would not participate at that stage of proceedings as
he was innocent. That was his right. In S v Dzukuda and Others; S v Tshilo 2000 (2)
SACR 443 (CC) at para 40 it was said:
“The accused's right under s 35(3)(h) of the Constitution 'to remain silent, and not to
testify during the proceedings' applies to the sentencing stage as well, including the E
proceedings here in question.”
However, this was not without consequences. In S v Jaipal 2005 (1) SACR 215 (CC) at
para 29 it was said:
“[29] The right of an accused to a fair trial requires fairness to the accused, as well as
fairness to the public as represented by the State. It has to instil confidence in the
criminal justice system with the public, including those close to the accused, as well as
those distressed by the audacity and horror of crime.”
The accused’s election to exercise his right to silence in consideration of an appropriate
sentence, may lead to a conclusion that there was nothing he could say that could
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persuade a court to find substantial and compelling circumstances to deviate from the
prescribed sentence [Matyityi at para 21].

[14] The violence displayed by the accused was simply gratuitous, unnecessary and
served to increase the blameworthiness of the accused and his companions.I have
been told nothing, from what had been said individually and cumulatively in favour of
both accused respectively, that shifted the scales when measured against the total
weight of the gravity of the offences, their prevalence and the legislature’s quest for
severe and standardized responses by the courts. In my view the prescribed sentences
represented public interest in a just and proportionally balanced manner [Matyityi para
22]. The sentences in respect of the unlawful possession of a firearm and unlawful
possession of ammunition may be steep, but under the circumstances of this case, not
unduly harsh [Witbooi v S (A416/2015) [2015] ZAWCHC 185 (8 December 2015) at
para 17]. At para 23 in Matyityi the court said predictable outcomes, not outcomes
based on the whim of an individual judicial officer, is foundational to the rule of law
which lies at the heart of our constitutional order. It is appropriate to also repeat para 24
where it was said:
“[24] In this case the respondent and his cohorts conducted themselves with a flagrant
disregard for the sanctity of human life or individual physical integrity.”
There is no doubt that society expects of the criminal justice system, the last word of
which comes from the courts, to demonstrate satisfaction of the desire for protection
from gratuitous criminality executed with boldness and without shame and with
confidence and an untouchable illusion. It is the courts that should take criminals back
to reality by imposition of sentences that are proportionate to the criminals, the crime
and the interests of society blended with a measure of mercy. For these reasons each
of the accused, the leading members of Gupta-gang, is sentenced as follows:

1. Count 1: the murder of Thembelani Sihlali, each of the accused is sentenced to

life imprisonment.
2. Count 2: the murder of Akhona Cuba, each of the accused is sentenced to life
imprisonment.
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3. Count 3: the murder of Lisa Kalpens, each of the accused is sentenced to life
imprisonment.
4. Count 4: the murder of Bongani Lonert Stiwa, each of the accused is sentenced
to life imprisonment.
5. Count 5: the murder of Tabita Mgidlana, each of the accused is sentenced to life
imprisonment.
6. Count 6: the murder of Monwabisi Nolusu, each of the accused is sentenced to
life imprisonment.
7. Count 7: the murder of Ntandazo “Ntera” Makhetha, each of the accused is
sentenced to life imprisonment.
8. Count 8: Attempted murder of Sipho Mtshikwe, each accused is sentenced to 5
years imprisonment.
9. Count 9: Attempted murder of Minentle Simanga, each accused is sentenced to
5 years imprisonment.
10. Count 10: Attempted murder of Abongile Mbi, each accused is sentenced to 5
years imprisonment.
11. Count 11: unlawful possession of a firearm, each accused is sentenced to 15
years imprisonment.
12. Count 12: unlawful possession of ammunition, each accused is sentenced to 15
years imprisonment.
The sentences on count 8 to 12 shall run concurrently with the sentences imposed on
count 1 to 7.
Both accused are declared unfit to possess a firearm.

DM THULARE
JUDGE OF THE HIGH COURT