One of six men convicted for carrying out an armed robbery at Westlane Lifestyle Centre in Windhoek says the Regional Court erred in law when it convicted and sentenced him to seven years imprisonment.
South African national Lucas Ndlovu wants the High Court to reconsider his conviction on a charge of robbery with aggravating circumstances and his sentence imposed by the Regional Court of seven years and a fine of N$20 000.
In his appeal that was argued on his behalf by lawyer Jermaine Muchali on Friday, the convict said he earlier had no intention of appealing. But after finding out that his co-accused were only convicted on a lesser charge of theft, he deems it unfair since they all took part in the commission of the crime.
In addition, the court failed to consider mitigating factors in his favour when it imposed a “shockingly inappropriate sentence”.
“The appellant (Ndlovu) at the time of sentencing had been in custody and trial-awaiting for a period of two years. The appellant pleaded guilty, and was a first-time offender. The appellant did not financially benefit from the stolen money,” Muchali submitted.
He added that the court was not merciful, and overemphasised the seriousness of the offence at the expense of Ndlovu’s personal circumstances.
Ndlovu seeks an order setting aside his conviction on robbery with aggravating circumstances and the sentence, and substituting it with a conviction of theft and to be sentenced to five years direct imprisonment, antedated from 29 October 2019.
The State, represented by Ian Malumani, opposed the appeal, saying the court did not misdirect itself as it assessed the evidence handed before it during the trial. Furthermore, there was no misdirection as Ndlovu and his accomplices were convicted by the same magistrate.
Thus, the conviction and sentence against Ndlovu should stand.
Ndlovu’s accomplices, Zimbabwean nationals Shane Ntandoyenkosi Moyo, Sibisiso Pumizile Mguni and South African Vusi David Buthelezi were sentenced to a fine of N$25 000 or 30 months’ imprisonment each after a conviction for conspiracy to commit theft, and N$5 000 or six months in jail for conducting business in Namibia without a work permit.
South African nationals Mthokozisi Kubeka and Vincent Martin Khumalo also admitted guilt, and were found guilty as charged and sentenced. The group admitted to carrying out an armed robbery at Westlane shopping complex in Windhoek on 13 November 2017.
Police reports at the time stated that the group ambushed a G4S crewman at Westlane, who was busy opening a cash-in-transit vehicle to load money.
One of the suspects shot through the vehicle’s window and grabbed one of the G4S guards. After the ordeal, the group fled the scene in a Toyota Etios, an Audi and a Lexus with foreign numberplates.
All vehicles have since been impounded. Upon their arrest, the group was found in possession of N$336 000 and US$6 500 (N$109 005).
According to Ndlovu’s admission of guilt testimony, they worked with an employee from the security company as well as two women who worked at the shopping centre.
Ndlovu testified that he, Kubeka, Khumalo and Buthelezi arrived in Namibia from South Africa on 11 November 2017 on the invitation of a woman who resides in Windhoek to carry out the heist.
The woman allegedly also invited a G4S security guard to be part of the robbery.
Ndlovu admitted his role in the robbery, confirmed the involvement of his co-accused as well and further revealed that other people, too, were part of the planning of the heist, in which N$487 320 in cash was stolen from a security guard who was supposed to collect money from Westlane.
He added that David was the driver of their getaway car, in which Mguni was also waiting.
According to Ndlovu, the woman who had planned the robbery took N$50 000 as her share of the stolen money, while he, Kubeka, Khumalo, Buthelezi and Mguni got N$35 000 each, and N$50 000 was Moyo’s “reserved share”.
The security guard who was part of the planning of the robbery was due to receive N$50 000, while N$50 000 was also reserved for a woman working at a shop at Westlane, Ndlovu stated.
Judge Herman January will deliver judgement in the matter on 24 June. -firstname.lastname@example.org
Caption: (Westlane) Convicted… The group that was convicted for armed robbery and theft.