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2024
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[2024] ZANCHC 25
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S v Baster (Sentence) (K/S29/2023) [2024] ZANCHC 25 (16 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
K/S29/2023
Heard on:
13 – 15/02/2024
Delivered on:
16/02/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter of:
THE
STATE
and
DAVID
FRANS
BASTER
ACCUSED
JUDGMENT
–
SENTENCE
Tyuthuza AJ
INTRODUCTION
1.
On 15 February 2024, the accused was
convicted as follows: count 1: housebreaking with the intention to
commit an offence unknown
to the State with the provisions of section
262 of the CPA and count 2:
murder
read with the provisions of section 51(2) of the Criminal Law
Amendment Act, Act 105 of 1997.
2.
The State submitted a
victim impact report to the Court, which was accepted as exhibit “D”.
3.
The
victim impact report prepared by Ms. Ndubulla, social worker, who
interviewed the deceased sister, Petronella Jacobs, the deceased
sons, daughter and uncle.
4.
The
victim’s sister Annita Beesveel has taken on the role of mother
to the deceased children and is their caregiver. She
reported
that the deceased’s children do not like to talk about their
mother, as they were traumatised by her death and talking
about her
brings painful memories. She accounts further that the family
is still triggered because they have not received
justice as the
accused is still roaming the streets freely. According to her,
the deceased and the accused were in a toxic
relationship and the
accused had stabbed the deceased on two previous occasions. The
loss of the deceased has left a void
in the family. The
deceased’s daughter mentioned that she misses her mother and
misses the warmth of a mother. The
deceased’s sons
refused to talk about their mother. As a result of the
deceased’s death, the deceased’s
children have been left
parentless. The deceased’s death has caused trauma to her
children, the children are withdrawn
and struggling with anxiety and
abandonment issues. According to the deceased’s family
they believe that the accused
wanted to murder their mother/sister
because of the wounds she sustained. The deceased’s
sister acknowledges that the
accused has tried to apologise but
because justice has not been served, she will never forgive the
accused.
5.
The accused admitted his previous
convictions marked exhibit “E”, which include assault,
neglect of children and assault
with the intent to do grievous bodily
harm. All these previous convictions are older than 10 years
and unrelated to the offence
of murder.
The
accused had been declared unfit to possess a firearm on a previous
occasion.
6.
In
determining an appropriate sentence, a court must have regard to the
triad which consists of: the crime, the offender and
the
interests of society as enunciated in
S
v Zinn
.
[1]
A
court must consider the personal circumstances of the accused, the
nature of the offence that has been committed and the interests
of
the society. It must also consider the recognized objectives of
sentencing which are prevention, rehabilitation, deterrence,
and
retribution.
7.
It
is trite that the punishment effected by this Court must fit the
crime for which the accused is convicted. In
S
v Rabie
[2]
,
it was held as follows: - “
Punishment
should fit the criminal as well as the crime, be fair to society and
be blended with a measure of mercy according to
the circumstances
”.
8.
An appropriate sentence should have regard
to and serve the interests of society and the protection of its needs
and the deterrence
of the would-be criminals.
9.
Section
51(2)
of
the
Criminal
Law Amendment Act 105 of 1997
provides
that where an accused is convicted of murder which falls under
Part
II
of
Schedule 2, the Court is obliged to impose a sentence of imprisonment
for a period of not less than 15 years if the accused is
a first
offender unless compelling and substantial circumstances are found to
exist
[3]
.
10.
When
faced with the application of the prescribed minimum sentence, a
court may only depart therefrom if the said court, upon a
consideration of the circumstances of the particular case, is
satisfied that such circumstances rendered the prescribed sentence
unjust, in that it would be disproportionate to the crime, the
accused and the need of society, so that an injustice would be done
by imposing that sentence.
[4]
PERSONAL CIRCUMSTANCES
OF ACCUSED
11.
Mr Biyela on behalf of the accused provided
the Court with the following personal circumstances of the accused as
follows:
11.1
The accused is 52 years old;
11.2.
He is married but has been separated from his wife for the past 8
years;
11.3.
The accused has four children who are all majors and residing with
their mother;
11.4.
The accused is unemployed and receives a monthly disability grant in
the amount of R2,090.00;
11.5.
The disability grant is received due to the fact that the accused
suffers from epilepsy and high blood
pressure for he is using
medication;
11.6.
The accused attended school until standard 5.
12.
The
State argued that the accused has previous conditions and despite the
fact that his convictions are older than 10 years, these
previous
convictions are relevant in that they demonstrate the accused’s
character. The State submitted that two of
the previous
convictions relate to offences with an element of violence and that
the sentences imposed did not deter the accused
from committing this
offence. The State submits that this is demonstrative of the
fact that the accused is an individual
that resorts to violence.
THE OFFENCE
13.
According to the accused’s written
statement; whilst the accused was approaching the house of Petronella
Jacobs, he met a
gentleman by the name of “Sheepdog”,
whom he had heard was involved in a relationship with the deceased.
He states
that he asked Sheepdog about the deceased and
Sheepdog simply opened the door to Petronella’s shack house.
According
to the accused he “was overwhelmed with anger”
thinking about the rumour of their relationship and just “
lost
it
”, took out a knife which he
had with him and stabbed the deceased several times on her body. The
accused knew that
his actions of stabbing the deceased a number of
times on her body would cause injuries which might result in her
death, but he
nevertheless continued to stab her.
14.
The seriousness of the offence
committed, was illustrated by the photographs and medico-legal
report. The photos of the deceased’s
lifeless body paints
a bleak picture of a ruthless murder of a helpless and defenceless
person. The deceased who was dressed
in only underwear, was
stabbed numerous times with a knife. According to the
medico-legal report the deceased’s body
had multiple incised
wounds and all the wounds had sharp edges. The wounds were
inflicted on various parts of the deceased’s
body including her
back. It is clear from the evidence presented and the photos
that the deceased was killed in a ruthless
manner and that the
accused had no regard for the deceased’s life.
15.
The murder was committed in the presence
of the deceased’s friend Ms Petronella Jacobs and three
children. Despite an
attempt to stop the accused, the accused
continued to stab the deceased and even threatened Ms Jacobs by
pointing the knife towards
her and telling her to keep quiet.
16.
The accused did not attempt to speak to the
deceased first, to establish the truth to the rumour. The
accused’s first
instinct was one of violence.
17.
The State submitted that the primary
motivation for the accused’s action was jealously.
18.
The
State referred to a decision of this Court, the matter of S v
Smous
[5]
,
wherein it was stated as follows at para 23:
“
Violence
in our society, particularly by men against women is prevalent. The
interests of society dictate that a strong message
to the public that
violence will not be tolerated should be sent. Failure to do so
would feed into the unjustifiable trend
of the society taking the law
into their own hands by punishing, without due process, alleged
suspects of crime. Respect for the
law must be guaranteed. A sentence
should be fair to the society, the offence, the offender and be
blended with a measure of mercy.”
19.
Our
courts have consistently held that where death occurs as a result of
jealousy or anger, such as between lovers, constitutes
a crime of
passion due to the emotive condition in which the guilty party finds
himself/herself. It is dependent on the facts
whether such a
situation would give rise to a mitigating factor.
[6]
20.
In deciding an
appropriate sentence this Court had regard to the degree and extent
of the violence used in the commission of this
offence, the nature
and weapon used, the brutality and cruelness of the attack, the fact
that the accused had acted with direct
intent, the physical,
emotional and psychological trauma that the deceased’s family
endures every day of their lives, the
loss of a mother and sister and
the destruction of innocent children, being robbed of a mother’s
love.
INTERESTS OF SOCIETY
21.
In
S
v Chapman
[7]
Mohammed
CJ said:
“
The
rights to dignity, to privacy, and the integrity of every person are
basic to the ethos of the Constitution and to any defensible
civilisation. Women in this country are entitled to the
protection of these rights. They have a legitimate claim to
walk peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy the peace
and
tranquillity of their homes without the fear, the apprehension and
the insecurity which constantly diminishes the quality and
enjoyment
of their lives
.”
22.
In
S
v Kekana
[8]
it
was stated that:
“
Domestic
violence has become a scourge in our society and should not be
treated lightly. It has to be deplored and also severely
punished.
Hardly a day passes without a report in the media of a woman or
a child being beaten, raped or even killed in this
country. Many
women and children live in constant fear for their lives. This
is in some respects a negation of many
of their fundamental rights
such as equality, human dignity and bodily integrity.”
23.
The
Preamble to the Domestic Violence Act
[9]
reads
in part thus:
“
Domestic
violence is a serious social evil; that there is a high incidence of
domestic violence within South African society; that
victims of
domestic violence are among the most vulnerable members of society;
that domestic violence takes on many forms; that
acts of domestic
violence may be committed in a wide range of domestic relationships;
and that the remedies currently available
to the victims of domestic
violence have proved to be ineffective
.”
24.
In
the matter S v Sejake
[10]
it
was stated as follows:
“
The
accused gained nothing of worth for the perpetrating and inflicting
of this terrible and horrific suffering on the deceased
and her
family. Gender Based violence, threatens every woman and
particularly poor and vulnerable in our society. In our
country, it
occurs far too frequently that women are violated or murdered at the
hands of their partners. The time has come
to send a clear
message that and anyone perpetrate these crimes against the most
vulnerable in our society, does so at his peril
and our Legislature,
and the community at large, correctly expect our courts to punish
perpetrators severely. Communities
are outraged and if we fail
to take account of that outrage, we risk encouraging the breakdown of
law and order and communities
taking the law into their own hands.”
25.
The accused does not
dispute that he murdered the deceased. He pleaded guilty to the
offence of murder. Despite the
accused’s three previous
convictions, it would seem that the accused has failed to learn that
violence does not solve anything.
It is clear that his violent
inclination has escalated from assault to murder. The accused
ruthlessly killed a woman
who he professed to be in a relationship
with and cared about. Instead of protecting her, the accused
caused a lot of pain
to the deceased, a pain which is still carried
by her friends and family.
26.
A sentence of imprisonment will not bring
the deceased back to life, but it will bring closure to the community
and in particular
her family, whose lives have been severely impacted
by the untimely death of the deceased. The message must go out
to the
community that the law is serious about gender-based violence;
and that such acts will not be tolerated and will be dealt with
effectively.
27.
“
It
is thus important and the duty of the Courts to contribute in our
role as the justice system to impose appropriate sentences,
particularly where women are murdered in the context of their
marriages, their relationships and homes. Whilst it is so that
you, as the accused, cannot be sacrificed at the alter of deterrence
for other would-be offenders, nor can it impose punishment
in anger,
the interests of the community must be satisfied that offenders of
serious crimes such as these be punished accordingly.
If
offenders are punished too lightly for serious offences, society
would lose confidence in our Courts and so too would
law and order be
undermined. Serious crimes of this nature therefore compel that
the objectives of retribution and deterrence
weigh more than the
objectives of rehabilitation of the offender and accordingly the
interests of the accused would recede to the
background.
[11]
28.
Sadly, despite the legislation enacted to
deal with domestic violence, the sentences imposed by our courts and
the measures put
in place to help women fight domestic violence,
violent crimes against women continue to scourge our country. The
South African
Police Service’s latest crime statistics show
that during the months of July 2023 and September 2023 eight hundred
and eighty-one
(881) women were murdered.
29.
The
accused is convicted of a very serious crime, wherein the minimum
sentence is applicable. Regardless of the sentence imposed,
the
deceased’s family will always remain affected by the actions of
the accused. The sentence imposed by this Court
must indicate
to the deceased’s family and the community that this type of
violence is unacceptable in a civilized society.
I refer to the
dictum
from S v Matyityi
[12]
wherein
the court stated:
“
this
is unacceptable in any civilized society, particularly one that ought
to be committed to the protection of the rights of all
persons,
including woman and children.”
SUBSTANTIAL AND
COMPELLING CIRCUMSTANCES
30.
Mr Biyela submitted on behalf of the
accused that there are substantial and
compelling circumstances that justify the imposition of a lesser
sentence than the prescribed
minimum of 15 years imprisonment.
31.
He argued that the accused had pleaded
guilty to the offence and did not waste the Court’s time. He
furthermore submitted
that his personal circumstances such as his age
and state of health should be considered. He added that the
accused acted
irrationally and out of anger and has learnt his lesson
and that the accused has conceded that there is no justification for
his
actions.
32.
Adv Engelbrecht submitted that there are no
substantial and compelling circumstances warranting a departure from
the prescribed
minimum sentence of 15 years imprisonment. It
was submitted that the accused’s personal circumstances are not
substantial
and compelling and therefore do not that warrant a
deviation. It was submitted that the accused would still have
access to
medical treatment and that the accused is not the primary
care giver of his children.
33.
Adv Engelbrecht submitted that the offence
is serious and attracts the minimum sentence and that if the Court
were to deviate therefrom
that the Court does so in excess of 15
years.
34.
After hearing the submissions made on
behalf of the accused and the state and having considered the
seriousness of the offence;
the fact that the accused continuously
stabbed the deceased; the fact that the deceased was not in
possession of any weapon or
posing any danger to the accused, I am of
the view that the accused had no choice but to plead guilty as there
was overwhelming
evidence against him. It is trite that a
guilty plea in circumstances where the case against the accused is
strong, does
not serve as mitigating but remains a neutral factor.
35.
The Court has had regard to the fact that
the deceased was stabbed multiple times in a place where she felt
safe and protected,
that the deceased and the accused were in a
relationship, and the emotional and psychological trauma the
deceased’s children
and family have to endure every day.
36.
Even more concerning was the fact that the
accused realized that the deceased would sustain serious injuries
that could cause her
death, and despite this, he persisted in
stabbing her and once he was done, instead of calling for help, he
ran to his mother’s
house where he was arrested the next day.
37.
I find it aggravating that the accused
committed this act in the presence of children, whilst the deceased
was in a vulnerable position
and even though Ms Jacobs had tried to
intervene, he threatened her and made no effort to pull back on his
attack of the deceased
and killed the woman he was in a relationship
with. The accused does not strike me as a person who has
changed from his violent
ways and has not shown any remorse to this
Court for his actions. The accused violated the deceased’s
right to life
and failed to protect her and as a result, the
deceased’s children must continue their lives without the love
and nurturing
of a mother.
38.
For these reasons I find that there exists
no substantial and compelling reasons to justify a deviation from the
prescribed minimum
sentence of 15 years and that an increase in the
sentence is appropriate.
39.
The accused has also been convicted of
housebreaking with the intent to commit a crime unknown to the
State. The essential
and accepted elements of the crime as it
is known in our law are:
(i)
the “breaking into” the
premises – in a legal as opposed to a physical sense i.e. by
the displacement of any obstruction
to entry which forms part of the
premises (such as a door or window) by opening, breaking or
(re)moving it;
(ii)
entry into the premises – either
completely or by means of any part of the person or via an instrument
(thus the insertion
of a part of the body such as a hand or even a
tool which is used to effect the break-in will suffice);
(iii)
wrongfulness i.e an unlawful break-in and
entry without lawful authority such as consent, an order of court or
a search warrant;
and
(iv)
the
necessary criminal intent i.e. the intent to commit an offence.
[13]
40.
The evidence clearly showed that the
accused had entered the residence of Petronella Jacobs by kicking
open the door, without the
permission of Petronella Jacobs and with
the intent to commit an offence.
41.
I therefore, impose the following sentence
on the accused:
1.
In respect of
the conviction of housebreaking read with the provisions of section
262 of the CPA: 2 years direct imprisonment
2.
In respect of
the conviction of murder
,
read with the provisions of section 51(2) of Act 105 of 1997
:
20 years direct imprisonment.
3.
The sentence
on count 1 is to run concurrently with the sentence on count 2.
4.
The accused is declared unfit to
possess a firearm.
T
TYUTHUZA
AJ
ACTING JUDGE
APPEARANCES:
On behalf of the
State:
Adv Engelbrecht
(oio
The NDPP)
On behalf of the
Accused:
Adv Biyela
(oio
Legal Aid SA)
[1]
S
v Zinn
1969 (2) SA 537
(A) at 540G
[2]
1975
(4) SA 855
(A) at 862G-H
[3]
See
also Section 51(3) (a) of the Act
[4]
S
v Malgas
2001 (1) SACR 469
(SCA) at para 25
[5]
S
v Smous 2018 (1) SACR 108 (NCK)
[6]
S
v Meyer 1981 (3) SA 11 (A)
[7]
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA)
[8]
2014
JDR 2139 (SCA); (629/2013)
[2014]
ZASCA 158
,
para 20
[9]
116
of 1998
[10]
(28/2022)
[2022] ZAFSHC 266
(16 September 2022) at para 21
[11]
S
v Rohde (CC43/2017)
[2019] ZAWCHC 18
(27 February 2019)
[12]
2011
(1) SACR 40 (SCA)
[13]
Bam
v S
2020 (2) SACR 584
(WCC) (20 July 2020) at para 26