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[2018] ZAECPEHC 43
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S v Redhouse and Another (CC14/2017) [2018] ZAECPEHC 43 (26 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No: CC 14/2017
Date
Delivered: 26/7/2018
In
the matter between
THE
STATE
and
NEALON
REDHOUSE
Accused
No. 1
DEON
HARMSE
Accused
No. 2
JUDGMENT
MAKAULA
J:
[1] Ms Ayanda Nkombisa a Probation
Officer, who works for Nerina One Stop Youth Justice Centre, recorded
the following in her Pre-Sentence
and Victim Impact assessment
report:
“
Mrs
Tee further applauded the excellent service and support that they
received from the South African Police Services from
the
onset. She reported that they have treated them with care,
and they are thankful”.
[2]
I share the same sentiments. Police Officers whose task, is not
always easy, are often criticized and blamed for not doing
their
work. It is not the case in this instance. I wish to
commend the police from those who answered the awful painful
telephone call made by Mrs Tee during the commission of the offences,
those who were first at the scene, the investigation team
and those
who keep the Tee family under the witness protection program. The
report by Ms Nkombisa amply reflects the abundance
of care and
sensitivity the members of the South African Police Services handled
and showed to the Tee family during these trying
times. You
have given them hope and reason to live again. The medical and
psychological care they have received from
hospital and various
professional bodies is commendable. I wish to thank both
Probation Officer’s i.e. Ms Ayanda Nkombisa,
Sonwabile Mavuso
and their supervisors for such concise and relevant reports. Ms
Nkombisa in particular, presented a well-reasoned
a Victim Impact
Assessment report I have even seen in my years of experience in the
profession. I shall on occasions refer
to it. It is a
pity that Accused 1 refused on two occasions to be interviewed by Ms
Nkombisa visiting, on the second occasion,
to be rather taken back to
the prison cell.
[3]
The prosecution and the defence teams are commended for handling such
an emotive matter in such a professional and deserving
manner.
[4]
Throughout my judgment I was unable to refer to Aaliyah as the
deceased. I ascribe that to her age and the manner in which
she
passed away. It is inconceivable that a child her age should
die in such a gruesome manner. The evidence presented
and the
report by Ms Nkombisa indicates that Aaliyah was born on 27 November
2003. She passed away tragically on 7 June 2016
in the hands of
the accused. At the time she was in Grade 7 at Strelitzia
Primary School. She was an intelligent child
with profound
leadership qualities. She was a prefect at school. She
received yearly awards for her academic performance.
Her
teacher Mrs Meagan is quoted by Ms Nkombisa as saying “
one
could see that Aaliyah was meant for greater things in life . . . the
deceased was polite and respectful
”.
[5]
The deceased was a devoted Christian. She liked reading the
Bible and praying. She took great delight in teasing
her
father. She displayed such attributes on the day of her death.
As Mr Tee and Mrs Tee retired in their bedroom to
sleep at about
22h00, Aaliyah joined them, cheerful as usual. She started
teasing her father Mrs Tee came to his rescue and
told her that her
father was tired. She started doing her hair gleefully showing
her mother how she would look like in an
upcoming wedding ceremony of
a relative. Having said so, she requested to read them a verse
from the Bible. It was
at that juncture that dreadful events of
that evening started to unfold. Aaliyah started praying asking
God to spare her
life and that of her parents. At the time the
fatal shot was fired by the merciless accused, she was kneeling
praying with
her hands in a praying position. Despite that
posture the accused executed her.
[6] Mr Tee, before he was shot and
injured by the accused, was a strong man who used to fix cars and run
with his house chores.
He was a responsible father who was able
to work for his family. He used to build Wendy houses.
Today as Ms Nkombisa
reports, “
the offence has since taken
away his ability to perform even basic tasks on his own such as
eating, bathing or going to the bathroom
”.
[7]
According to the report Mr and Mrs Tee are helped by a family friend
Mrs Meagan Terblanche. I must mention upfront that
people like
Mrs Terblanche are very scarce. I take the opportunity of
thanking her for the sterling work she is doing for
the Tee family.
She assists them in cooking, cleaning, bathing, taking their
medication and taking Mr Tee to the bathroom
for purposes of
relieving himself and his cleaning thereafter. As a result of
the injuries, Mr Tee is paralysed from his
waist. He does not
have control of his urine and at times defecates himself. At
times she has to deal with Mr Tee’s
obstructed defecation.
She is not a trained nurse nor a caregiver. She does this out
of love and her friendship with
the Tee family.
[8]
Mr Tee verbosed to Ms Nkombisa the helplessness he now feels of not
being able to provide for his family. He is bemused
by how they
are to rebuild their live after being released from the witness
protection programme. Both Mr Tee and Mrs Tee
have been
uprooted from amongst their friends, family and the environment they
were used to after the commission of these offences.
They lost
their support structure completely. They have not been able to
share with family members and friends, moments of
joy and sadness.
Mr Tee was not even able to be present at Aaliyah’s funeral.
It is worth mentioning that the
State played a crucial financial role
in the funeral of Aaliyah.
[9] Mrs Tee has been diagnosed with
Post Traumatic Stress Disorder which Ms Nkombisa defined it as:
“
As
a disorder that is characterized by failure to recover after
experiencing or witnessing a terrifying event”.
Mrs
Tee’s most painful experience is that of seeing her daughter
praying in from of her executioners for her dear life and
subsequently seeing her lying in her own pool of blood. No one
or right thinking person can wish this to happen to her/his
worst
enemy. The accused could not even be deterred by her plea in
prayer. Instead they executed Aaliyah.
[10] Doctor Christian Jacobus Snyman
testified the injuries sustained by Mr Tee and the effects thereof
are that:
“
He
is a quadriplegic and could not be saved”.
[11] It is undoubtedly so that the
actions of the accused have caused the lives of the Tee family untold
hardship. The consequences
of their barbaric actions shall live
with the Tee family for the rest of their entire lives. Ms
Nkombisa amply captures it
in her report. “
Mrs Tee
reported that the accused persons took away our whole lives from us
”.
They are devoted Christians who grew
up instilling such values to Aaliyah. Due to what the accused
did to them, they have
started to ask questions of God who had
allowed such hardship to befall them. Ms Nkombisa reports thus:
“
During
consultation with Mrs Tee, it was clear that she has not yet overcome
the trauma of losing her daughter due to the incident
. . . She
indicated that although she is a believer in Christ, and it is said
that God has a purpose for everything, she however,
reported that she
asks herself what could have been the purpose of this. She is
unable to come up with an answer”.
[12] Mrs Tee mentioned to Ms Nkombisa
that:
“
.
. . the events and trauma they suffered will never go away . . .
(S)he reported that looking at her husband every day, seeing
him in
the condition that he is now, knowing very well the kind of man he
was before is a daily reminder of the incident.
She mentioned
that knowing that she lost her baby (Aaliyah) and that she will never
get her back kills her inside”.
[13]
Mrs Tee testified and asked that a video of Aaliyah dancing, a few
weeks before she was killed by the accused, be played.
She
appears on the video happy and showed her dancing powers. Mrs
Tee thanked everybody who played a role in the finalisation
of the
case.
[14]
Zano Tee, the son of Mrs Tee confirmed the effect the offences had to
her parents as well captured by Ms Nkombisa in her report.
He
testified that his parents are in extreme pain and there is nothing
he can do to ease the pain. He testified that Aaliyah
was a
joyous person. He believed that she was in the hands of God and
free from the cruel world. As a Christian, though
painful, he
is able to accept the death of his sister.
[15]
As alluded to Ms Nkombisa was expelled by Accused 1 when she visited
him for purposes of compiling a pre-sentence report.
The report
was essential for Accused 1 personal circumstances. A copy of
the birth certificate handed up indicated that he
was 17 years at the
time of the commission of the offence.
[16]
Other than what is stated from the Bar, I have no other mitigating
factors proffered by Accused 1. He was 17 years old at the
time.
I am advised that Accused 1 is currently serving a 12
year term of imprisonment for unrelated convictions.
Because of
the seriousness of these offences and the nonchalant behaviour
Accused 1 displayed, I considered that the sentences
I am going to
impose should not run concurrently with that sentence.
[17]
As stated before, Mr Mavuso compiled a well-researched pre-sentence
report on behalf of Accused 2. Accused 2 was born
on 6 March
1993. He is the last born in his family. He has three
siblings. He was born in a marital relationship.
However,
his father left the common home when Accused 2 was one year old.
He was raised by his loving mother and was the
jewel of the family.
His siblings also took care of Accused 2. His mother spoiled
Accused 2 to an extent that he got
all that he wanted. Accused
2 did not exhibit behavioural problems when he grew up. He
never smoked nor drank alcohol.
He hated smoking and alcohol
which his siblings partook of, so the report states.
[18]
The report reveals that Accused 2 did well in his lower Grades at
school. However, he started to experience concentration
difficulties. He was hyperactive. He was taken for
psychometric and scholastic screening. He was put on Ritalin
and enrolled at Merryvale Special School and received disability
grant. He remained at the school for less than two years
and he
left. His disability grant was stopped. It is then that
they received complainants about his behaviour.
His mother
continuously paid for losses suffered by people because of Accused 2’
behaviour. The accused started to
clash with the law. He
was arrested and sent to Nerina Child Justice Court and subsequently
referred to Gali Thembani Specialized
Child and Youth Care Centre.
He remained there for a year and never went back.
[19]
Accused 2’ mother passed away in 2015 while the accused was in
custody at North End prison. He was bailed out for
purposes of
attending his mother’s funeral by his sister Glenda Mali.
[20]
Accused 2 has a good health even though he was hospitalized for four
months suffering from Tuberculosis. He has not fully
recovered
from it. He is not married but has a child who was born in
2016. He denied his involvement in the commission
of the
offence to Mr Mavuso.
[21]
As stated in the judgment on merits, the Accused’s bodies are
full of tattoos which they have interpreted to mean robbers,
an
Intziswa i.e. a strong young man, with bags of money and fire-arms
depicted. The accused belong to the “26 gang”
which
operate from prison. They are high ranking members of that
gang. They showed no remorse at all and took no responsibility
for their actions.
[22]
Accused 1 is a member of a highly dangerous gang as testified to by
the police and Mr and Mrs Tee. He is emboldened in
gangsterism
by the tattoos on his torso and arms. He did not behave like a
juvenile prior to the commission and during the
commission of these
offences. Aaliyah literal grew up with him and he in turn in
front of the Tee family. That did
not deter him from committing
these heinous crimes. When in prison, he prefers to associate
with the dangerous gangsters.
A child of 17 years would not and
is expected not to behave in the manner Accused 1 behaved. He
has shown no remorse and
did not want to participate in the
pre-sentence procedures which were to benefit him. He was
smirking at the time when the
video of Aaliyah was watched. He
is smiling even as I am reading out the judgment on sentence.
[23]
The motive for the commission of these offences is that Mr and Mrs
Tee witnessed the killing of a gangster member named Stahl.
I
am advised that life in the Northern areas, here in Port Elizabeth is
a nightmare. People are killed day in and day out
in gang
related murders. The community in the Northern areas live in
perpetual fear of death. Certainly that is a community
infested
and under siege by gangsterism. Gangsters are repeatedly
fighting over the so called turf. That is exactly
what occurred
in this matter. Our courts shall not flinch in handing down
appropriate sentences for such barbaric crimes.
The whole
Tee family was believed to have been “
wiped
out
”
by the accused not knowing that Mr and Mrs Tee had survived.
That community needs protection from our courts.
Justice has to
be seen to be done. The sentences should reflect on the
personal circumstances of the accused, the crime and
the interests of
society, the victims in particular. I find the following
substantial and compelling circumstances.
23.1 Accused 1 was a minor at the time
of the commission of the offences;
23.2 Accused 2 was
relatively young and four years older than Accused 1;
23.3 Accused 2 has
serious health problems as stated above.
[24]
I was advised that Accused 1 is serving 12 years’ imprisonment
for related offences. Accused 1 is unrepentant.
He has
shown no regret to the offences he has committed. He has
refused to place mitigating factors before court. The
unlicensed firearm used in the commission of those offences was found
in possession of Accused 1. I am of the view therefore
that the
sentences to be imposed should not run concurrently with the current
sentence he is serving.
[25]
The Accused are sentenced as follows:
Count 1:
The accused are sentenced to undergo two (2) years’
imprisonment.
Count 2:
The accused are sentenced to undergo five (5) years’
imprisonment.
Count 3:
The accused are sentenced to undergo twenty (20) years’
imprisonment.
Count 4:
The accused are sentenced to undergo five (5) years’
imprisonment.
Count 5:
The accused are sentenced to thirty (30) years’ imprisonment.
Count 6:
The accused are sentenced to undergo ten (10) years’
imprisonment.
Count7:
Accused 1 is sentenced to undergo twelve (12) years’
imprisonment.
Count 8:
Accused 1 is sentenced to undergo five (5) years’ imprisonment
The sentences imposed are to run
concurrently.
It is further ordered that accused 1’s
sentence shall commence after he had served the current sentence.
_______________________
M MAKAULA
Judge of the High Court
Counsel for the State: Adv Sandan &
Adv Landam
Director
of Public Prosecution
Port
Elizabeth
For Accused 1: Adv J Coertzen
Legal
Aid
Port
Elizabeth
For Accused 2: Mr J Riley
Instructed by: Legal Aid
Port
Elizabeth
Sentence
Delivered: 26 July 2018