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2024
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[2024] ZANCHC 57
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Buys v S (KS 14/15) [2024] ZANCHC 57 (14 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: KS 14/15
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
DAVID
BUYS
Applicant
and
THE
STATE
Respondent
Coram: Lever J
JUDGMENT
Lever
J
1. This
is an application to condone the late filing of an application for
leave to appeal on sentence, and that
leave to appeal the three life
sentences imposed on the applicant be granted to the full bench of
this division.
2.
The
applicant was convicted of two counts of rape and one charge of
murder. All three of these convictions were based on the fact
that
the charges were read with the provisions of section 51(1) of the
Criminal Law Amendment Act
[1]
(the CLAA or colloquially known as the Minimum Sentencing Act). The
upshot of the conviction under the said charges was that in
respect
of each conviction the minimum sentence to be imposed was life
imprisonment, unless the court found ‘substantial
and
compelling’ reasons to depart from the statutorily prescribed
minimum sentences.
3. On
the 12 October 2015 I sentenced the applicant to life imprisonment on
all three convictions, the sentences
to run concurrently with each
other and with a sentence the applicant was already serving at the
time he was sentenced.
4. The
basis for the application for condonation was that within seven days
of being sentenced he signed certain
forms with a female legal
representative whose name he does not recall, to prosecute an appeal
in respect of the sentences imposed.
Applicant was then transferred
from Kimberley to a correctional centre in Bloemfontein. He heard
nothing from this legal representative.
5. From
2019 he started corresponding with the High Court in Kimberley to
find out the status of his application
for leave to appeal. Legal Aid
first allocated the file to Mr Van Tonder who retired from Legal Aid
in 2022 when the matter was
transferred to Mr Steynberg.
6.
Further, the applicant contends that the national lockdown during the
response to covid further delayed the
prosecution of this application
for leave to appeal. Then, applicant contends that Mr Steynberg
requested copies of the judgments,
presumably both on the convictions
and sentence, the transcripts of the judgments were provided to Mr
Steynberg.
7. The
application for leave to appeal and condonation was filed on the 30
November 2023. Mr Barnard for the State
filed the State’s Heads
of Argument on the 21 December 2023. The States Heads of Argument did
not find their way into the
court file. Ultimately, a copy was sought
from Mr Barnard, which copy was received on the 11 June 2024.
8. The
State opposes the condonation application on the basis that the
application for leave to appeal has no
prospects of success.
9.
Having regard to the fact that the applicant alleges he signed papers
within the 14-day period he had to lodge
an application for leave to
appeal and the fact that the covid lockdown period intervened, taken
together with the fact that the
applicant was transferred to another
facility in a different province, I think the circumstances warrant a
consideration of the
merits of the application for leave to appeal
the sentences imposed on the applicant. In these circumstances, I am
willing to condone
the late filing of the application for leave to
appeal.
10. Both the applicant
and the respondent requested me to deal with this application on the
papers alone. Given the history outlined
above and the nature of the
application I believe it is appropriate in the circumstances to
consider both the application for condonation
and the application for
leave to appeal on the papers filed.
11. The application for
leave to appeal is in respect of the three life sentences only. There
is no application for leave to appeal
on the convictions for the two
rape charges and the conviction for the murder.
12. Turning now to the
merits of the application for leave to appeal itself.
13.
Mr
Steynberg on behalf of the applicant submitted that: “…the
sentences of life imprisonment are shockingly harsh and
inappropriate, and a result of the following misdirection: That the
court erred in finding that there aren’t any substantial
and
compelling circumstances to deviate from the prescribed minimum
sentences of life imprisonment.”
[2]
14.
Mr
Steynberg then goes on to quote the determinative test as set out in
S v MALGAS
[3]
, which essentially
states that if the court is satisfied that the sentence prescribed is
so unjust that it would be disproportionate
to the crime, the
criminal and the needs of society, then such court would be justified
in imposing a lesser sentence.
15. Mr Steynberg then
goes on to concede that insofar as the commission of the relevant
offences are concerned, there are no mitigating
features. Mr
Steynberg concedes from the evidence adduced that the crimes for
which the applicant was convicted and sentenced were
carried out by
the accused in a manner that was both brutal and callous that led to
the death of the victim B[...] M[...].
16. Mr Steynberg further
concedes that the public should be protected against such offences.
17. Mr Steynberg then
points out that the personal circumstances of the applicant are as
follows: The applicant had a difficult
childhood; the applicant had a
strained relationship with his father; the applicant’s father
and mother are separated; the
applicant did not finish his primary
schooling due to brushes with the law; the applicant was a few days
shy of turning twenty-two
years old when he committed the offences
concerned; and the applicant was twenty-five years old at the time of
sentencing.
18. Mr Steynberg then
submits that the personal circumstances of the applicant coupled to
the fact that he was 21 years old at the
time he raped and murdered
B[...] M[...] makes the three life sentences imposed disproportionate
to the crime.
19. Mr Barnard who
appears for the State submits that: The assault on the deceased
B[...] M[...] was brutal and inhumane; the deceased
had injuries all
over her body; the deceased was raped both vaginally and anally; the
applicant had previous criminal convictions
and showed no respect to
for law abiding citizens and the community; the victim impact report
showed a tremendous long lasting
and devastating impact on the family
of the deceased; and that viewed holistically the aggravating
circumstances heavily outweigh
the mitigating factors.
20. Finally, Mr Barnard
submits, that there is no reasonable prospect that another court will
come to a different conclusion.
21. On re-reading the
pre-sentence report and the victim impact report, it is clear that
B[...] M[...] (the deceased), played a
meaningful role in both her
family and her community: She was a breadwinner in her family; her
father suffered a stroke and his
health deteriorated after her
murder; her older sister’s son was falsely accused of being the
murderer; in the community
the deceased organised activities for
indigent children; and she taught at her church’s Sunday
school.
22. The applicant never
took responsibility for his actions. His previous convictions show a
pattern of criminal conduct and contempt
for his community.
23. Usually being
convicted and sentenced at a relatively young age leaves scope for
the prospects of rehabilitation. However, this
in and of itself is
not sufficient. There can be no rehabilitation without an honest
appreciation of what you have done and an
acceptance of
responsibility for the actions that led to convictions and the
consequences that flow from such crimes.
24. The applicant accepts
no responsibility for his crimes and the consequences that flow from
such crimes. There is no sign of
any remorse on the part of the
applicant. In these circumstances, there is no realistic expectation
of rehabilitation.
25. Looking at the
evidence holistically, there is a pattern of criminal conduct.
Without any acceptance of responsibility for his
actions and the
consequences that flow from such actions, society at large remains at
risk for a repetition of his violent conduct.
26. Having regard to all
the evidence adduced at the trial, the only appropriate sentence for
each of the convictions is a life
sentence to run concurrently with
the other life sentences imposed as well as the sentence that
applicant was already serving when
this court originally sentenced
the applicant. Accordingly, on the determinative test set out in the
Malgas case there can be no
substantial and compelling reasons to
depart from the prescribed sentence. There is no reasonable prospect
that another court will
come to a different conclusion.
Accordingly,
the following order is made:
1)
The late prosecution of this application for leave to appeal is
condoned.
2)
The application for leave to appeal is dismissed.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
REPRESENTATION:
Applicant:
Mr H
Steynberg oio Legal Aid SA, Kimberley
Respondent:
Adv T
Barnard oio The Director of Public Prosecutions, Kimberley.
Date
of Judgment:
14
June 2024
[1]
Act 51 of 1997.
[2]
Applicant’s Heads of Argument p 4 para 12.
[3]
S v MALGAS
2001 (1) SACR 469
(SCA) at para 25 sub-paragraph I.