Professional Documents
Culture Documents
THE STATE
and
A. INTRODUCTION
1. The Accused in this matter has been convicted by this Honourable Court
of the planned murders of his parents, Martin (“Martin”) and Teresa van
Breda (“Teresa”), and his brother, Rudi van Breda (“Rudi”) as well as the
attempted murder of his sister, Marli van Breda (“Marli”). The Accused
was also convicted of defeating or obstructing the administration of justice.
3. It is humbly submitted that the factors to be considered are trite as set out
in the trilogy listed in S v Zinn 1969 (2) SA 537 (A), i.e. the crime itself,
the personal circumstances of the Accused and the interests of society.
4. It is submitted that it is common cause that the crimes the Accused has
been convicted of are very serious in nature.
Minimum sentence:
5. This is highlighted by the applicable penalty for planned murder, i.e. life
imprisonment.
7. In the judgment of S v Malgas 2001 (1) SACR 469 (SCA) at 476f – 477f
it was found that, when dealing with certain types of crimes, it is no longer
“business as usual” and that minimum sentences should “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
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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.”
9. The Court then confirmed and stressed the relevance of the minimum
sentence legislation at p 53 paragraph 23:
“Despite certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues to be alarming.
It follows that, to borrow from Malgas, it still is 'no longer business as
usual'. And yet one notices all too frequently a willingness on the part of
sentencing courts to deviate from the minimum sentences prescribed by the
legislature for the flimsiest of reasons - reasons, as here, that do not survive
scrutiny. As Malgas makes plain, courts have a duty, despite any personal
doubts about the efficacy of the policy or personal aversion to it, to
implement those sentences. Our courts derive their power from the
Constitution and, like other arms of State, owe their fealty to it. Our
constitutional order can hardly survive if courts fail to properly patrol the
boundaries of their own power by showing due deference to the legitimate
domains of power of the other arms of State. Here Parliament has spoken.
It has ordained minimum sentences for certain specified offences. Courts
are obliged to impose those sentences unless there are truly convincing
reasons for departing from them. Courts are not free to subvert the will of
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11.It is against this background that this Honourable Court ought to approach
sentence in the matter at hand.
The crimes
12.1. The Accused was, on his own evidence, part of a close-knit, loving
family who played board games, went on vacation and regularly
spent time together;
12.2. The family had no financial problems and thus they all had bright
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12.3. The deceased and the remaining victim were most viciously attacked
in their own home by someone they trusted and loved;
12.4. The Accused chose to execute the attack on his father, mother,
brother and sister at a time when they were most vulnerable, that
being, after they had gone to bed;
12.5. The crimes were planned in that the accused armed himself with a
lethal weapon, an axe. This left his victims particularly defenseless;
12.6. The fact that Marli survived the attack is not due to any action or
mercy of the Accused but rather a miracle;
12.7. As the Accused did not see fit to play open cards with the Court there
is no apparent motive for the killing of his family. The court is
therefore been denied the opportunity of fully answering the
question “ Why did he do it?”.
Vide : S v Moosa 2009 JDR 1039 (WCC)
The victims
14.The Court is reminded of the testimony of Mr Andrè van Breda the brother
of the deceased which described the deceased, the remaining victim and
the family prior to the incident:
He created a successful life for him and his family by using his
knowledge and skills.
Martin clearly loved and trusted the Accused. This is evident by the
fact that he clearly did not expect to be attacked by his son.
She was a loving mother who cared for her family and wanted the
best for them.
Her love for her family was so deeply rooted that the family returned
to South Africa because she wanted to be closer to them.
One can only imagine what went through her mind when she must
have realized shortly before being attacked that the attacker was her
own son who she raised and loved.
She was merely a sixteen year old vulnerable school girl at the
time of her attack.
She has lost everything. Nothing will ever be the same for her.
Despite the fact that she has no memory of the incident, she has
to go through life with the knowledge that her brother killed her
whole family and also tried to kill her.
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The State has consulted with Marli and her curator, Adv Buikman, SC. In respect of the State not
calling Marli or handing in a victim impact statement in aggravation of sentence, we have considered her
privacy. Marli has been haunted by the media and we believe that a victim impact statement will violate
her right to privacy and progress that has been made in her recovery.
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16.It is humbly submitted that the only fact in favour of the Accused is that he
was 21 years old at the time of the commission of the offences.
17.It is conceded that the relative young age of an Accused could be seen to
be a factor in mitigation of sentence.
Vide : S v Lehnberg en `n Ander 1975 (4) SA 553 (A) at 561B
19.It is argued that the youthful age of an Accused is, with respect, not
enough to prevent a Court from imposing a sentence of imprisonment.
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21.The Learned Judge continued and found at p249I – 250A that: “The
accused, in my view, and in spite of her age and background, acted like
an 'ordinary' criminal and should have been treated as such. She had no
mental abnormalities and, something the Judge had noted, was able to
pass herself off and in many respects acted like someone of about 18
years of age. That is what at least one witness thought her age was. All
the guesswork about her mental and physical age in contradistinction to
her actual age pales into insignificance.” (My underlining)
[94] The crime that the appellant committed is abhorrent and the enormity
of it can hardly be over-emphasised.”
24.No evidence has been presented to the effect that the Accused was
emotionally immature or addicted to drugs at the time of the offence.
Neither was any evidence presented to show that the Accused or his family
experienced any particular emotional or socio-economic problems.
25.To the contrary, the Accused is described as a fit, healthy young man and
his family as loving and close knit.
26.It is submitted that the relative youthfulness of the Accused and the fact
that he is a first offender is not enough to warrant a lesser sentence than
imprisonment for a longer period of time.
11. It is conceded that the traditional aims of punishment have been transformed
by the Constitution, but it is argued that there are certain crimes that
necessitate a custodial sentence (and lengthy ones) and such a sentence
should thus be imposed as the only appropriate sentence.
Vide : S v M (Centre for Child Law as Amicus Curiae)
2008 (3) SA 232 (CC) at p243A – B and p253 H – I
Director of Public Prosecutions, Kwazulu-Natal v P
(supra)
S v Van der Westhuizen (supra)
29.It is, with respect, trite law that to sentence an offender too lightly can be
just as wrong as sentencing him too heavily.
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PROPORTIONALITY
31.It is submitted that the proportionality test as set out in S v Dodo 2001 (3)
SA 382 (CC) at 404I – 405E must also be considered in deciding on an
appropriate term of imprisonment.
33.1. The attack on her occurred during the same incident, using the same
weapon and with the same intent;
33.2. The injuries she sustained were similar in nature and location as the
deceased;
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33.3. The medical evidence related to her injuries (Exhibit “BBB12”) and
prognosis (Exhibit “HHH”) shows that her injuries were not just
potentially fatal but are usually fatal;
33.5. The attempt on her life is hardly distinguishable from the murders.
Marli’s survival is a miracle. The Accused likely did not foresee her
surviving the attack.
CONCLUSION
35.Having regard to all the facts and circumstances of the matter at hand, it is
the respectful argument of the State that:
35.1. The seriousness of the crimes and the interests of society outweigh
the personal circumstances of the Accused by far; and
Judge’s Chambers
High Court
Cape Town
BIBLIOGRAPHY