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IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

 

Case No:                      K/S 21/2020

In the matter between:

 

THE STATE                                                                                                                      

and

EDWARD KABELO DE BRUIN                                                            ACCUSED 1

PIET GOHENTSEMANG MULLER                                                       ACCUSED 2

 

Heard on:        16/09/2024

Delivered on:   18/09/2024

Summary: Judgment on sentence. Prescribed minimum sentence applicable in count 1: murder r/w s 51(1) of the Criminal Law Amendment Act 105 of 1997(CLAA) and count 2: kidnapping r/w s 51(2) of the CLAA. Whether substantial and compelling circumstances exist. Whether the accused’s age, remorse and a conviction on dolus eventualis comprise substantial and compelling circumstances warranting a deviation from the prescribed minimum sentences.

 

ORDER

a.         Count 1: Murder r/w s 51 (1) of the Criminal Law Amendment Act 105 of 1997 in the furtherance of a common purpose with dolus eventualis as the form of intent, accused 1 and 2 are each sentenced to 25 (twenty-five) years imprisonment.

b.         Count 2: Accused 1 and 2 are each sentenced to 10 (ten) years imprisonment for the kidnapping of Aobakwe Pholoholo.

c.         Count 3: Accused 1 and 2 are each sentenced to 3 (three) years imprisonment for assault with intent to do grievous bodily harm of Aobakwe Pholoholo.

d.         Count 4: Accused 1 and 2 are each sentenced to 5 (five) years imprisonment for possession of an unlicensed firearm.

e.         Count 5: Accused 1 and 2 are each sentenced to 12 (twelve) months imprisonment for possession of unlicensed ammunition.

f.          The sentences in Counts 2, 3, 4 and 5 are ordered to run concurrently with the sentence in count 1.

 

 

JUDGMENT ON SENTENCE

 

 

MAMOSEBO J

[1]       On 6 May 2024 this court convicted accused 1 and 2 (in the main judgment referred to as accused 2 and 3) of (a) murder in the furtherance of a common purpose with dolus eventualis as the form of intent; (b) kidnapping; (c) assault with intent to do grievous bodily harm, (d) possession of an unlicenced firearm and (e) possession of unlicensed ammunition. Former accused 1, Stephanus Dawid Wessel Oosthuizen, (hereinafter referred to as (‘Oosthuizen’), had passed away before the commencement of the trial. The case was postponed to 16 to 18 September 2024 at the request of the defence for the pre-sentencing reports while the State was to furnish the victim impact reports.

[2]       The law is settled that in sentencing an accused, a court is enjoined to consider the triad, that is, the accused’s personal circumstances, the seriousness of the offence and the interests of the community.  A court is further enjoined to consider the purposes of punishment, namely deterrence, retribution, rehabilitation and prevention in order to mete out an appropriate sentence. The court must further blend the sentence with an element of mercy according to the circumstances.

 

[3]       On 16 September 2024 the defence handed in by consent the Pre-sentence reports compiled by the probation officer, Ms Wilma Roux, dated 30 August 2024 marked exhibits ‘K’ and ‘L’ for accused 1 and 2, respectively. The State handed in by consent two Victim Impact Statements, exhibits ‘M’ and ‘N’ deposed to by Mr Peter Modingwane, the deceased’s uncle, and Ms Kgomotso Kgobodi, the mother of the deceased’s child, respectively. The statements were obtained in Setswana and translated into English. None of the parties adduced any oral evidence for purposes of sentencing. 

 

[4]       Accused 1’s personal circumstances were presented by his legal representative from the Bar. Mr Pieterse, for accused 1, submitted that the pre-sentencing report has adequately dealt with his personal circumstances. Accused 1 is 26 years old and was 22 years old at the time of the commission of the crime. His highest level of education is Grade 12. He started working as a farm labourer. Details of his previous employment were not furnished neither was his previous income. Mr Pieterse submitted that because he was employed by the late Mr Oosthuizen only for a period of three weeks before this incident occurred, he had not received any income from Oosthuizen. He is unmarried and has no children. Both his parents are still alive. He is the youngest of six siblings. He assisted his father with the domestic chores prior to his incarceration. He is a first offender.

 

[5]       Mr Pieterse submitted the following in mitigation of accused 1’s sentence: He neither received any form of training as a security officer nor handling of a firearm but took guidance from accused 2 in terms of the work to be performed as accused 2 had recruited him for the job. He was also ignorant of the requirements of the application of minimum force when effecting a citizen’s arrest. Counsel conceded that, although in the present facts it seems like a hurdle to show substantial and compelling circumstances, the accused’s personal circumstances are favourable and can be regarded as substantial and compelling circumstances. The fact that Oosthuizen was described as a fierce employer who even assaulted the deceased at the bridge supports his contention that he was afraid of Oosthuizen. Accused 1 depended on accused 2 who was employed for a much longer period. He was just given the firearm and told to apprehend the deceased and to bring him to the bakkie which caused him to panic and fire blindly the five shots. Counsel urged the court to consider a lesser period of imprisonment that would not be disproportionate and would enable the accused to rehabilitate.

         

[6]       In as far as the assault with intent to cause grievous bodily harm is concerned, counsel submitted that the court should consider two aspects raised in the report which the accused does not agree with. First, the complainant, Aobakwe Pholoholo’s sister’s claim that Aobakwe started using substances/drugs after this incident as well as the contradictory statements by the probation officer where in the one sentence she wrote that the accused showed no remorse but on the next page wrote that the accused accepts responsibility for the charges against him and that he shows remorse and regrets his actions. Counsel pleaded that the latter should be accepted as a true reflection of the accused’s evaluation. Counsel further submitted that the accused was in custody awaiting trial for a period of seven months after his arrest and a further four months after his conviction as mitigation.  Mr Pieterse did not refer this court to any authorities during argument.

 

[7]       Likewise, accused 2’s personal circumstances were related by his legal representative from the Bar. Mr Mmutloane, for accused 2, did not repeat the personal circumstances captured in the report by the probation officer but rather urged the court to consider them as adequate. The accused is currently 36 years old and was 33 years when the crimes were committed. He is the fourth of five siblings. He is unmarried. He has children aged 5, 3 and 2 years old with Ms Patricia Mongale but one passed away. The accused’s mother is maintaining the children financially and supports Ms Mongale financially where possible. Ms Mongale receives child support grants for all three minor children. The accused attended school up to Grade 3 and qualified himself as a welder. He has worked as a farm labourer for most of his working years. He does not attend church.

 

[8]       Accused 2 maintains his innocence despite being convicted on all five counts. Mr Mmutloane reiterated the statement by the probation officer that ‘the accused denies the charges he was found guilty of and he does not show remorse.’ Mr Mmutloane stated that the accused cannot show remorse for something he said he did not do. According to counsel, the accused had an employer-employee relationship with Oosthuizen, and he only carried out his instructions. Mr Mmutloane submitted that his instructions that there was no such instruction issued to accused 2 to shoot and kill. He was not in a position to differentiate between a lawful and an unlawful instruction.

 

[9]       Mr Mmutloane further made the submission that since the accused were convicted of murder with dolus eventualis as the form of intent, it should serve as a substantial and compelling circumstance. The fact that the offences were not pre-planned but occurred on the spur of the moment, especially the murder, it was not intended or foreseen. Notwithstanding that the doctrine of common purpose aggravates the sentence, the court should bear in mind that accused 2 was 33 years old and a first offender. When these factors are considered cumulatively the court can deviate from the prescribed minimum sentence. It was further urged that this court should order that the sentences should run concurrently.

 

[10]     Ponnan JA in S v Matyityi[1] encouraged accommodating victims during the sentencing phase to be better informed of the after-effects of the crime. This, reasoned the court, will assist in achieving a more balanced approach to sentencing. In aggravation of sentence, Ms Engelbrecht for the State, read the two victim impact statements, exhibits ‘M’ and ‘N’ into the record. The following can be highlighted from Mr Peter Modingwane’s statement, the deceased’s maternal uncle. The deceased’s mother died when the deceased and his siblings were still very young, and were raised by him and their grandmother. The deceased’s highest educational attainment is Standard 2. He then worked as a farm labourer, cleaned people’s yards or ran errands for members of the community. The deceased helped to care for his younger siblings. He is survived by his 10-year-old daughter. The deceased was 29 years old. The news of his passing was first reported as a rumour in the community. After verifying the facts at the police station and later identifying the body at the mortuary, is when the truth surfaced.

 

[11]     Ms Kgomotso Kgobodi is the mother of the deceased’s daughter. She highlights the single-parent challenges especially after one was used to joint responsibility and the fact that her daughter is asking about her father. The family, Ms Kgobodi and her daughter are still dealing with the pain of losing their loved one. The State did not submit a psychologist’s report that could assist the court to appreciate the psychological impact the loss of the deceased has had on the minor child. The office of the DPP is reminded of the paramountcy of the best interests of the child as enshrined in s 28 (2) of the Constitution.

 

[12]     In respect of the submission by the defence that accused 1 was young and inexperienced, where the following was enunciated by Ponnan JA in S v Matyityi[2]:

 

‘[14]      Turning to the respondent's age: what exactly about the respondent's age tipped the scales in his favour, was not elaborated upon by the learned judge. During the course of the judgment reference was made to the respondent's 'relative youthfulness', without any attempt at defining what exactly that meant in respect of this particular individual. It is trite that a teenager is prima facie to be regarded as immature and that the youthfulness of an offender will invariably be a mitigating factor, unless it appears that the viciousness of his or her deeds rules out immaturity. Although the exact extent of the mitigation will depend on all of the circumstances of the case, in general a court will not punish an immature young person as severely as it would an adult.  It is well established that, the younger the offender, the clearer the evidence needs to be about his or her background, education, level of intelligence and mental capacity, in order to enable a court to determine the level of maturity and therefore moral blameworthiness. The question, in the final analysis, is whether the offender's immaturity, lack of experience, indiscretion and susceptibility to being influenced by others reduce his blameworthiness. Thus, whilst someone under the age of 18 years is to be regarded as naturally immature, the same does not hold true for an adult. In my view a person of 20 years or more must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor. At the age of 27 the respondent could hardly be described as a callow youth. At best for him, his chronological age was a neutral factor. Nothing in it served, without more, to reduce his moral blameworthiness. He chose not to go into the box, and we have been told nothing about his level of immaturity or any other influence that may have been brought to bear on him, to have caused him to act in the manner in which he did.’

 

            The State submitted that the accused should be treated as adults who foresaw the possibility of their actions and had reconciled themselves with the results. As elucidated by Ponnan JA, age is but a neutral factor when considering the mitigating circumstances of the accused. The accused did not testify in mitigation and his level of maturity or immaturity is not before court.  There is nothing in the age of a 27-year-old that serves, without more, to reduce his moral blameworthiness.

 

[13]     Both Messrs Pieterse and Mmutloane urged this court to consider imposing a lesser sentence than that prescribed in the legislation to afford their clients the opportunity to rehabilitate in prison. In Director of Public Prosecutions, Kwazulu-Natal v Ngcobo and Others[3] where Navsa JA (Van Heerden and Mhlantla JJA concurring) made these insightful remarks:

         

‘[21]      In a White Paper on Corrections in South Africa (2005) at para 424 the following is stated:

             

“[R]ehabilitation is best facilitated through a holistic sentence planning process that engages the offenders at all levels – social, moral, spiritual, physical, work, educational/intellectual and mental. It is premised on the approach that every human being is capable of change and transformation if offered the opportunity and resources.”

             

The White Paper also states that rehabilitation is a result of a process taken by prison authorities to model the offender’s life during his time in prison so that, when he is released, he has been reformed to such an extent that he is not likely to commit offences in the future. Section 37 of the Correctional Services Act 111 of 1998 requires sentenced prisoners to participate in various programmes and activities. It is a notorious fact that our prisons are overcrowded, often subjecting our prison population to undignified conditions of detention. It is optimistic in the extreme to assume that there are always effective rehabilitation programmes in place.’

 

[14]     Navsa JA further referred to an article entitled ‘The prospect of rehabilitation as a “substantial and compelling” circumstance to avoid imposing life imprisonment in South Africa: A comment on S v Nkomo 2007 (2) SACR 198 (SCA) by Jamil Ddamulira Mujuzi 2008 South African Criminal Justice pp 1 -21. The learned author states at pp 14 et seq that rehabilitation is influenced largely by speculation that the offender, after undergoing the various training programmes and attending the relevant courses in prison, will lead a crime free life. He states further that in the years preceding his article the Department of Correctional Services has failed to meet rehabilitation targets and concludes that the prospect of rehabilitation in South Africa remains a speculative hypothesis.’

 

[15]     In as far as the issue of remorse is concerned, it should be borne in mind that while the probation officer has reported that accused 1 has shown remorse and accused 2 has not shown any remorse and his legal representative has also emphasised that he is not remorseful, remorse is aptly explained in Matyityi[4] as follows:

         

‘[13]      Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined.’

           

Clearly accused 2’s complete lack of remorse is indicative of his wilful attitude that does not work in his favour.

           

[16]     Mr Mmutloane urged this court to regard, on its own, dolus eventualis as a substantial and compelling circumstance. However, in S v Brown[5] Navsa ADP said it is a factor to be considered. This is what the SCA said:

           

‘Lastly, the question of whether dolus eventualis on its own constitutes a substantial and compelling circumstance justifying a lesser sentence is required to be addressed. Although the absence of dolus directus may well count in his favour it is but one of the totality of factors to be taken into account. Having regard to all the aggravating factors referred to earlier, I am unable to conclude that there are substantial and compelling circumstances present that would justify a departure from the prescribed minimum sentence.’

 

[17]     Of importance is the following elucidation in S v Malgas[6] where Marais JA said:

 

‘[9]        …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.’

 

The Court further held[7]:

 

            ‘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.’

 

[18]     The State reiterated the fact that the crimes were committed in the furtherance of a common purpose which aggravates the seriousness of the offences. While the accused may not have intended the criminal result of murder, they must have 'foreseen the possibility of the criminal result of murder ensuing' particularly because there was a firearm with live ammunition involved. Accused 2 can also not distance himself from the crime of murder because while accused 1 was placed in possession of the firearm and pulled the trigger accused 2 must have known that the firearm would be used and nonetheless actively associated himself with what was happening at the time. It must be borne in mind that accused 2 was the one who handed the firearm to accused 1. The State further submitted that the court should find that there are no substantial and compelling circumstances in the facts before court.

[19]     Nugent JA makes the following plain in S v Vilakazi[8]:

         

‘[14]      It is only by approaching sentencing under the Act in the manner that was laid down by this court in S v Malgas – which was said by the Constitutional Court in S v Dodo to be 'undoubtedly correct' – that incongruous and disproportionate sentences are capable of being avoided. Indeed, that was the basis upon which the Constitutional Court in Dodo found the Act to be not unconstitutional. For by avoiding sentences that are disproportionate a court necessarily safeguards against the risk - and in my view it is a real risk - that sentences will be imposed in some cases that are so disproportionate as to be unconstitutional. In that case the Constitutional Court said that the approach laid down in Malgas, and in particular its 'determinative test' for deciding whether a prescribed sentence may be departed from, makes plain that the power of the court to impose a lesser sentence can be exercised well before the disproportionality between the mandated sentence and the nature of the offence becomes so great that it can be typified as gross [and thus constitutionally offensive].

 

That 'determinative test' for when the prescribed sentence may be departed from was expressed as follows in Malgas and it deserves to be emphasised:

 

If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.’

 

[20]     The Court in Vilakazi[9] cautioned further that:

 

‘[58]      The personal circumstances of the appellant, so far as they are disclosed in the evidence, have been set out earlier. In cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are in themselves largely immaterial to what that period should be, and those seem to me to be the kind of 'flimsy' grounds that Malgas said should be avoided. But they are nonetheless relevant in another respect. A material consideration is whether the accused can be expected to offend again. While that can never be confidently predicted his or her circumstances might assist in making at least some assessment. In this case the appellant had reached the age of 30 without any serious brushes with the law. His stable employment and apparently stable family circumstances are not indicative of an inherently lawless character.’

 

[21]     There is no gainsaying that the crime of murder is heinous and prevalent in our country. This, against the backdrop of the enshrined constitutional right to life, enjoins this court to approach sentencing mindful that specified sentences are not to be departed from lightly and for flimsy reasons. See Malgas[10]. 

 

[22]     Of Significance, is that the mastermind, formerly accused number 1, Oosthuizen, who orchestrated this entire ordeal was not before court because of his passing. He employed both accused as security guards without empowering them with any formal training. He provided them with his wife’s firearm, and they all participated in a joint effort to apprehend both the deceased and the complainant in the furtherance of their unlawful activities. Instead of bringing the deceased and the complainant to book by taking them to the relevant authorities on a suspicion of theft of watermelons, they took the law into their own hands. The weapon that finally took the deceased’s life moved hands from accused 2 to accused 1 who ultimately pulled the trigger. The legislature has ordained life imprisonment in this type of offence unless there is weighty justification for the imposition of a lesser sentence. Regard being had to the accused being farm labourers, equipped with a weapon belonging to their employer’s wife, who caused them to work in concert with him, and being first offenders it would be disproportionate to impose life imprisonment under such circumstances. However, a severe sentence is still warranted because a life has been taken. In my view, imprisonment for 25 years each would be appropriate.

           

Count 2: Kidnapping read with the provisions of s 51(2) of Act 105 of 1997 and Count 3: Assault with intent to cause Grievous Bodily Harm

 

[23]     The Constitution guarantees freedom of movement. For one’s freedom to be taken away by private persons under deceitful pretence that he was held without contacting the police is an aggravating factor. It is disconcerting that the police were only summoned in the late evening. But for the information at the deceased’s place that led them to Oosthuizen’s place one wonders what would have become of the complainant. It is significant that the police battled to obtain cooperation from Oosthuizen and any other of the people present to tell them of the presence of the complainant in a locked storeroom. The complainant was found by the police by default because it was already dark and they depended on their torches for illumination.

 

[24]     The room in which the complainant was unlawfully detained was a storeroom. The condition in which he was found was appalling. His upper body was uncovered. He was fastened with a wire while lying on his stomach and both his hands and feet tied. He remained in that position from during the day to some time at night when he was discovered by the police. This inhumane treatment goes against the inherent dignity guaranteed to everyone by our Constitution to be respected and protected. These types of treatment are not only a misfit in today’s day and age but also degrading and must be deprecated. Accused 1 and 2 acquiesced in this treatment and did not even alert the police about it. Before being taken to the storeroom, the complainant was made to lie at the back of the bakkie on top of the watermelons after having been assaulted by accused 1 and 2 at the water canal.

 

[25]     The photographs that depicted the complainant having been assaulted are unsightly. In considering an appropriate sentence, one does not only consider the nature or extent of the injuries sustained but the intention the accused had when causing such injuries that is material. The complainant was fortunate to have survived the ordeal. This type of vigilantism is deprecated and attracts the type of sentencing that will convey the court’s abhorrence.

 

Count 4: Contravention of s3(1) read with ss 1, 120(1) and 121 of Act 60 of 2000 and Count 5: Contravention of s 90 read with ss 1, 120(1) and 121 of Act 60 of 2000

 

[26]     I have already remarked that the firearm and ammunition were provided by Oosthuizen. Significantly, is the conduct of accused 1 and 2 after the shooting incident. They allege that Oosthuizen ordered them to hide and that he has money and will take of the care of the case. A clear conscience would have demanded that instead of fleeing, one to his uncle and the other to his sister, they should have involved the police. What is worse, after their arrest they took the police on a wild goose chase when trying to find the murder weapon, wasting scarce state resources. The police recovered a firearm and ammunition from accused 2’s place of abode and yet he still maintains his innocence. The fact that the recovered firearm and ammunition were found concealed is demonstrable of the fact that accused 2 knew he was not supposed to be in possession thereof but still kept them.

[27]     Regard being had to the evidence, the submissions and authorities referred to, the accused are sentenced as follows:

 

a.         Count 1:  Murder r/w s 51 (1) of the Criminal Law Amendment Act 105 of 1997 in the furtherance of a common purpose with dolus eventualis as the form of intent, accused 1 and 2 are each sentenced to 25 years imprisonment.

b.                  Count 2:  Accused 1 and 2 are each sentenced to 10 years imprisonment for the kidnapping of Aobakwe Pholoholo.

c.                   Count 3: Accused 1 and 2 are each sentenced to 3 years imprisonment for assault with intent to do grievous bodily harm of Aobakwe Pholoholo.

d.                  Count 4: Accused 1 and 2 are each sentenced to 5 years imprisonment for possession of an unlicensed firearm.

e.                   Count 5: Accused 1 and 2 are each sentenced to 12 months imprisonment for possession of unlicensed ammunition.

f.                   The sentences in Counts 2, 3, 4 and 5 are ordered to run concurrently with the sentence in count 1.

 

_____________________

MAMOSEBO J

NORTHERN CAPE DIVISION

 

For the State                 Adv T Engelbrecht

                                       Adv J Rosenberg

Instructed by:                  The Director Public Prosecutions        

 

For accused 1:                Mr R Pieterse (Judi care)

Instructed by:                  Justice Centre, Kimberley

 

For accused 2:                 Mr D Mmutloane (Judi care)

Instructed by:                  Justice Centre, Kimberley

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