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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: CC44/2020
In the matter between:
THE STATE
and
DERICK KALMEYER
SENTENCE JUDGMENT
DELIVERED ON 24 JUNE 2024
___________________________________________________________________
ANDREWS, AJ
Introduction
[1] Mr. Derick Kalmeyer (“the accused”) was found guilty of assault with intent to
do grievous bodily harm, two counts of murder read with the provisions of Section
51(1) of the Criminal L aw Amendment Act, No. 105 of 199 7, as amended and one
count of contravening Section 67(1)(a) read with Section 1 of the South African
Police Service Act 68 of 1995, to wit, resisting arrest.
[2] The provisions of Section 51(1) of the Criminal Law Amendment Act 105 of
1977 is applicable to counts 3 and 4 which carries a minimum sentence of life
imprisonment in respect of murder as listed in Part I of Schedule 2 to wit where the
murder was planned or premeditated.
[3] In terms of Section 276 of the Criminal Procedure Act the court is cloaked
with inherent jurisdiction which empowers this court to impose life imprisonment
[4] In respect of Count 5, resisting arrest, in terms Section 51 of the CPA read
with Section 117 of the Correctional Services Act is a fine or incarceration for a
period not exceeding ten years or to imprisonment without the option of a fine or
both.
[5] In determining a fair, just and proportionate sentence, a court should have
regard to and be mindful of the foundational sentencing principles that the
punishment should fit the crime, as well as the criminal, be fair to society and be
blended with the element of mercy as enunciated in S v Rabie 1.
[6] It is against this backdrop tha t this court now considers the principles
applicable in maintaining a fair and balanced sentence as well as the general
approach to the imposition of suitable sentences.
Aims of punishment
[7] In determining an appropriate sentence, it is trite law that the court should
bear the main objectives of criminal punishment in mind, which are deterrent;
preventative, reformative and retributive .2 In S v Mhlakaza 3 the Supreme Court of
1 1975 (4) SA 855 (A) at 862G – H.
2 S v Swanepoel 1945 AD at 455; See also S v Rabie 1975 (4) SA 855 (A) 862A – B; S v Scott -
Crossley [2007] ZASCA 127; 2008 (1) SA 404 (SCA); 2008 (1) SACR 223 (SCA) at 35 ‘…any
Appeal, per Harms JA, held that the object of sentencing is no t to satisfy public
opinion but to serve public interest. A sentencing policy that predominantly caters, or
exclusively caters for public opinion, is inherently flawed. The court noted that it
remains the court’s duty to impose fearless an appropriate and fair sentence even if
the sentence does not satisfy the public.
The triad
[8] It is an established legal principle that the courts must impose sentences that
are proportionate to the gravity of the offence and take into account the degree of
responsibility of the offender. In sentencing the accused, the court is to have regard
to the Zinn triad which comprises of the nature and seriousness of the offences, the
personal circumstances of the accused as well as the interest of soci ety.4 In S v
Qamata5, it was held that an appropriate sentence actually means a sentence which
is in accordance with the blameworthiness of every individual offender. The punitive
sanction should be appropriate in severity to the degree of blameworthiness or the
seriousness of the conduct. It is therefore imperative for the court t o strike a balance
in the three elements. The court is aware that equal weight must be attached to
these traditional factors stated in Zinn (supra) and that the court should be cautious
not to attach undue weight to one factor and overlook, the other facto rs to the
detriment of the accused or society as was aptly stated by F riedman J, in S v
Banda6
‘The elements of the triad contain an equilibrium and a tension. A court should
when determining sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements in order to ensure that one element is
not unduly accentuated at the expense of and to the exclusion of others. What
is necessary is that the Court shall consider, and try to balance evenly, the
nature and circumstances of the offence, the characteristics of the offender and
sentence imposes must have deterrent and retributive force. But of course, one must not sacrifice an
accused person at the alter of deterrence. Whilst deterrence and retribution a re legitimate elements of
punishment, they are not the only ones, for that matter, even the overriding ones.’.
3 1997 (1) SACR 515 (SCA).
4 S v Zinn 1969 (2) SA 537 (A).
5 1997 (1) SACR 479 at 483.
6 1991 (2) SA 352 (BGD) at 355A – B.
his circumstances and the impact of the crime on the community; its welfare
and concern.’
Exhibits
[9] The following Exhibits were received into evidence during the sentencing
proceedings namely:
(a) DNA Report – Exhibit “G”;
(b) SAP 69’s – Exhibit “H”;
(c) Probation Officer’s Report – Exhibit “J”;
(d) Victim Impact Statement – F[...] A[...], - Exhibit “K”;
(e) Victim Impact Statement – D[…] A[...], - Exhibit “L”;
(f) Victim Impact Statement – Maria Fienis, - Exhibit “M”.
Previous Convictions
[10] The following previous convictions proven against Mr Kalmeyer namely:
24/12/1985 2 counts of Malicious injury to
property
Corporal punishment –
caning – 6 lashes
27/12/1988 Assault with intent to do
grievous bodily harm
6 months imprisonment
wholly suspended for a
period of 5 years and R200
compensation
19/09/1989 The suspended sentence of
20 /02 1989 was put into
operation
17/08/1989 Possession of dangerous
weapon
Fine 80- or 40 -days
imprisonment
06/07/1989 Assault with intent to do
grievous bodily harm
Corporal punishment
Caning – 6 lashes
08/09/1989 Dumping – contravention of
the local authorities Act
Fine R100 or 50 days
imprisonment
18/09/1990 2 Counts of Malicious
Damage to Property
6 months imprisonment on
each count – Ordered that
the sentences run
concurrently with each other.
23/09/1991 Assault with intent to do
grievous bodily harm.
180 days imprisonment
suspended for a period of 5
years with conditions.
25/07/1995 The sentence imposed on
23/09/1991 was put into
operation
09/01/1992 2 counts of malicious damage
to property
Both counts taken together
for the purpose of sentencing
– 6 months imprisonment
suspended for a period of 4
years on conditions.
In addition – R259 for
compensation.
09/01/1992 Assault with intent to do
grievous bodily harm
4 months imprisonment
suspended for a period of 4
years on conditions.
09/01/1992 2 counts of malicious injury to
property
Both counts taken together
for the purpose of sentence –
6 months imprisonment
wholly suspended for a
period of 4 years on
conditions.
04/02/1992 The sentence imposed on
09/01/1992 put into operation
20/10/1992 Assault Admission of guilty fine R50
02/11/1992 Assault with intent to do
grievous bodily harm
4 months imprisonment
wholly suspended for a
period of 3 years on
conditions.
25/07/1995 Putting into operation
suspended sentence
imposed on 02/12/1992
03/06/1993 Malicious damage to property Fine R400 or 200 days
imprisonment wholly
suspended for a period of 3
years.
In addition, R200
compensation
25/07/1995 Assault with intent to do
grievous bodily harm
1-year imprisonment
25/07/1995 Contempt of Court 60 days imprisonment
21/01/1999 Escaping or attempting to
escape
8 months imprisonment
10/03/1999 Breach of Peace Fined R100 or 25 days
imprisonment. Sentence
ordered to run concurrently
with the sentence he was
serving at the time.
26/10/2000 Assault with intent to do
grievous bodily harm
8 years imprisonment
20/06/2000 Malicious damage to property 3 years imprisonment
On 21/02/2008 – released on
parole supervision until
20/07/2009
24/01/2012 • Malicious damage to All charges were taken
property
• Assault with intent to do
grievous bodily harm
[not clear if it was 2
counts on each charge as
it was duplicated with the
date of commission of the
offences being the same
date]
together for the purpose of
sentencing – 12 years
imprisonment.
Accused warned in terms of
Section 286(1) of Act 51 of
1977.
[11] The accused admitted these previous convictions after placing certain
entries on the SAP 69 in dispute.
[12] In terms Section 2 71B(1) of the Criminal Procedure Act you can apply to
have your criminal record expunged if it has been 10 years since the date of your
conviction and 5 years if you were 18 years and younger at the time. In this regard, it
is evident that most of the previous convictions were committed while the accuse d
was under the age of 18 years and therefore Section 87 of the Child Justice Act
becomes relevant. In terms of Section 271A of the Criminal Procedure Act, a
previous conviction if a period of 10 years has elapsed after the date of conviction
falls away if certain conditions are met as set out in the provision.
[13] The accused’s last brush with the law was seemingly in 2012 for which he
was sentenced to 12 years imprisonment. However, if regard is had to the date of
the commission of these offences in casu namely 1 May 2019, there was a gap of
approximately 7 years. This therefore , means that the accused had committed these
offences whilst out on parole as he did not serve the full 12 years imprisonment.
DNA Results
[14] The DNA results reflected the following:
(a) the genetic material found on the “window frame wall”, from the wall by the
front door matched the reference sample of C[...];
(b) Unknown male DNA was obtained from the possible blood on top [“6”];
(c) No DNA result was obtained from the possible high friction from knife [“2”].
[15] It bears mentioning that no reference sample was taken from the accused.
The Evidence
[16] The Defence indicated that they wished to cross -examine the Probation
Officer on the content of his report. Mr Errol Daniel Pietersen was called to testify.
He placed his qualifications and experience on record. He also confirmed his
sources of information, namely the accused, Mrs Maria Fienis, the accused sister, Mr
Riaan Fienis, the accused’s brother – in – law, Ms S […] J[…], a previous victim of
the accused who was the complainant in an attempted murder matter under
Vredenburg CAS 108/8/2010, the file content as well as the accused’s SAP 69’s.
[17] Mr Pietersen testified that, it appears that the accused dropped out of school
at the age of 16 years and started working in construction. The accused was for the
most part, casually employed. He struggled a t school and made himself guilty of
recalcitrant behaviour showing a lack of interest. In this regard, Mr Pieterse n
indicated that he often got into trouble at school by misb ehaving and not respecting
authority. The accused was expelled from school and sent to live with family in
Atlantis with a view to him resuming his schooling there, but it appears that the
accused got into trouble there as well. He placed on record that the accused was
not drug dependent.
[18] The accused has no obvious indication of physical or psychological defects.
Mr Pieterse explained that the accused himself admitted to him that his behaviour
has been difficult since his early teens, which was also confirmed by the accused’s
sister. The ac cused is a self-confessed member of the 28’s gang. When probed
about his affiliation with the gang, and the normal trajectory whether he wouldn’t like
to put an end to this lifestyle, the accused informed Mr Pietersen that he is being
treated well inside prison. The accused gave him the impression that he was okay to
be in prison, although he would prefer to be outside.
[19] Mr Pieterse opined that the accused has a positive attitude towards crime
and remarked “I DO NOT BELIEVE THE OFFENDER CAN BE
REHABILITATED…I CONTEND THAT THE OFFENDER PRESENTS A CLEAR
DANGER TO SOCIETY.”
[20] Mr Pieterse testified that the family of the deceased children remain
traumatised. They experience sleeplessness. When interviewed by Mr Pieterse, they
appeared outraged and angered as they shared the account of what happened. This
event has made them hyper vigilant in respect of the other children as they
constantly worry. He explicated that they go into what he termed to be over -drive to
determine where the other children are.
[21] The accused has also caused much embarrassment to his own family
through what he did. The accused own sister feels victimised by the community
which has caused her to withdraw into herself
[22] Mr Pieterse opined that if regard is to be had to the accused’s criminal
history; and that he does not suffer from mental deficit; in other words, he was in full
control of his faculties, the only appropriate sanction would be to impose the
maximum penalty.
On behalf of the accused
[23] Counsel on behalf of the accused prepared heads of argument in mitigation
of sentence. The Heads of Argument addressed the factors which courts are to
consider when considering an appropriate sentence , with a sharp focus on the aims
of punishmen t insofar as it pertains to deterrence and retribution. The Heads of
Argument also addressed various other factors, which were argued would constitute
substantial and compelling circumstances in support of the contention that the court
should deviate from imposing the prescribed minimum sentence.
[24] It was argued that the state failed to prove that the accused is beyond
rehabilitation and reformation. In this regard, it was contended that the accused,
when he was released from prison , he did construction work and entered into a
romantic relationship and with F[...] A[...]. He cared for her children as a father figure
buying diapers and milk, which is indicative of his attempt to rehabilitate himself.
[25] Counsel on behalf of the accused subm itted that the court is to adopt a
wholistic approach and not just send the accused off to prison in circumstances
when there is a chance that he is capable of rehabilitation and become a productive
member of society. Counsel for the accused suggested that a cumulative period of
22 years imprisonment would be appropriate in the circumstances of his matter ,
taking into account further the time already spent awaiting trial.
On behalf of the state
[26] Heads of Argument were prepared by the state. In this regard, submissions
were made regarding the trite applicable considerations to sentencing; the nature
and seriousness of the crimes, the interest of the community. In the state’s address
the scourge of child murders plaguing the Western Cape and South Africa as a
whole was highlighted.
[27] It was contended that no substantial and compelling circumstances exists to
warrant a deviation from the prescribed minimum sentence of life imprisonment. It
was further argued that the crim inal activities of the accused followed an upward
trajectory to the most serious of violent crimes, namely the taking of the life of
another. It was furthermore submitted that although the accused appears to be
committing crimes habitually, the court is to invoke its inherent jurisdiction and the
applicable minimum sentence.
Personal Circumstances of the Accused
[28] The personal circumstances of the accused, is encapsulated in the
Probation Officer’s Report. The salient aspects thereof include that he is currently 54
years old. He is unmarried and is the father of two children, one of whom is
predeceased. His surviving daughter resides with her biological mother is Graaf
Reinet. The accused has no contact with her. Prior to his incarcer ation, the accused
worked for a construction company for a period of 6 months. He progressed
scholastically to grade 7. Prior to his incarceration, the accused resided in a Wendy
House on the property with his sister and her family. The accused shared this Wendy
house with F[...] A[...], with whom he had a romantic relationship, and her two
children.
[29] It is trite law that in passing sentence the personal circumstances of the
accused must be considered carefully, not only in so far as they led to the act, bu t
also to the extent that the intended punishment will affect the accused personally.
The personal circumstances of the accused are also important considerations in
determining the appropriateness of a suitable sentence. Moreover, it must be
considered in order to determine the extent to which his life and that of his family in
future will be affected by the imposition of a prescribed minimum sentence for
example. I deal with later in this judgment when discuss the minimum sentencing
regime.
[30] It has to be recognised that the circumstances of this matter call for an
approach that deals firmly with the offenders, who were convicted of very serious
offences. It must however, be balanced against safeguarding the interests and
preserving the rights of society . It is incumbent to have due regard to the nature, the
circumstances and motivation for the commission of the offences, but also give due
consideration to the personal circumstances of the accused.
[31] During cross-examination of Mr Pieterse n it came to ligh t that the accused
was 12 years old when his father passed away. He conceded that the death of a
father at that young age may potentially have a negative impact as there would be
the absence of a positive father role model. This, Mr Pieterse n conceded, ma y
possibly have impacted on the subsequent problems that the accused displayed with
authority.
[32] The punishment meted out when he first came into conflict with the law,
being corporal punishment ( lashes), such punishment would today be regarded as
cruel an d unusual punishment. Mr Pieterse n conceded that receiving such
punishment would also be degrading. He further conceded that it could probably
have sent out a wrong signal to young people that violence is an acceptable way of
dealing with problems.
[33] Mr Pietersen agreed that if there was proper intervention at the time it may
have had a positive effect on the accused. Interventions could have been through
the education system, or counselling by a social worker to the accused when he was
at the tender age of 16 years old. Mr Pieterse n agreed that the age category of 12 –
16 years were critical. He conceded that the accused may have been failed by
society and by the state at the time.
[34] As a child in conflict with the law, mediations and diversions would have
been probable outcomes for the types of offences he was found guilty on. These
alternatives for younger offenders may have given the accused a more positive
approach than to sanction him to the criminal justice system. Even community
service may have yiel ded better outcomes and awareness. It was suggested that
because the accused was young, he pleaded guilty and had no legal representation,
deprived him of the benefit of mediation or diversion.
[35] It was suggested by Counsel for the accused to Mr Pietersen that there were
signs of the accused’s attempt to walk the proverbial straight and narrow as he found
employment, entered into a committed relationship with the mother of the children
and in fact performed the role of father figure for them. Mr Pietersen indicated that he
had difficulty answering that question as although the accused demonstrated that
pattern of behaviour, same w as juxtaposed with the opposite behaviour. Mr
Pietersen conceded that the accused was caring towards the children.
[36] Counsel for the accused put it to Mr Pieterse n that the accused is compelled
to align with the gang system in prison for his safety. Mr Pie terse could not comment
on the accused’s affiliation to any gang outside of prison.
The victims
[37] The Victim Impact Report as encapsulated in the Probation Officer Report is
worth restating as it captures the devastating impact of the harrowing events of that
fateful night when F[...] and C[...]’s lives were senselessly ended in the most heinous
way possible:
‘The family of the two murdered children understandably continue to suffer as a
result of the untimely death of the two children. Despite be ing aware of the
offender’s proclivity towards criminality and violence, that he had taken the life
of the two children, especially of such a very young age struck the family
completely off guard.
Her surprise is further fuelled by the fact that she had kn own the offender for
most of her life, he had visited their home and had always treated her parents
with the utmost respect. Not only has it left her as well as the rest of the family
in shock, but they suffer despair, dismay, disbelief and outrage. They s truggled
to comprehend how anyone, especially someone whom they permitted into
their home and who was in a seemingly caring relationship with their daughter
capable of perpetrating such an unbelievably callous act.
They had no reason to imagine or suspect that he would harm them in any way
as he had treated the children with affection and care. Throughout the interview
with the mother, she had been tearful and melancholy and struggled to contain
her emotions. She proclaimed that her heart is shatter ed and that she hopes to
wake from the nightmare which continues to fill her with revulsion and anger
and the yearning to have her children back in her arms.
Not only do the family struggle to process the death of the children, but they
remain incensed at the offender’s lack of remorse, as he had never apologised
to them; refuses to admit to the offence and at times taunted them when he
sees them at court.
The mother and the rest of the family continue to struggle to sleep. Since the
death of the children, they have become hyper aware of their surroundings and
overprotective of the other children in the home.”
[38] In Mr Pieterse n’s view, the family is suffering from Post -Traumatic Stress
Disorder. It was further placed on record that substantial servi ces were already
rendered to F[...] A[...]. Mr Pieterse n indicated that he would be able to refer the
other family members for counselling as well.
[39] Inasmuch as Mr Pieterse n encapsulated the impact of these incidences
there are also further additional striking consequences worth mentioning:
Victim Impact Statement – F[...] A[...]
[40] The devastating trauma of that fateful evening has caused Ms A[...] to have
suicidal thoughts. She relives the shock and horror of that harrowing ordeal daily ,
experiencing nightmares. To numb the pain, she has fallen back into using drugs to
such an extent that she sold her parents belongings to support her drug habit . She
imagines hearing C[...] and F[...]’s cries constantly. She misses her children dearly
and finds it difficult to move on with life; C[...] and F[...] are constantly in her thoughts
and on her mind. She wonders how they would have been like now, attending
school, a privilege she was not given to share future milestones with them.
Victim Impact Statement – D[…] A[...]
[41] Mrs D[...] A[...], described the scene she arrived to when she came over to
the house on the day of the incident. She narrated how emotional she became she
saw the children lying on the floor and how C[...] cried out to his grandpa “DADDA”
when he saw him . At that stage, li ttle F[...] had was already deceased, lying on the
COLD TILES on the floor. She described how it broke her to see this scene. The
horror of that scene continues to cause her not to be able to sleep. The death of
these 2 children has had a significant impact on the household. To this end, they
have become almost paranoid about the other children, being hyper vigilant, not
leaving them out of sight. She expressed that she will never be able to forget what
happened. Despite the fact that she went for psychological treatment, she feels it
hasn’t helped her.
[42] She described her observations on how this incident has affected F[...]. Mrs
D[...] A[...] explained that F[...] is not the same; she roams around the streets
aimlessly and have become more drug dependent than she was before , to the point
where F[...] sold their household goods to support her drug dependency.
Victim Impact Statement – Maria Fienis
[43] Maria Fienis is the sister of the accused. She provided a victim impact
statement which she attested to under oath and was received into evidence as an
exhibit without any cha llenge. This statement is particularly telling as she expresses
how shocked she was when she saw the two children. She stated that she feels
embarrassed as this incident has had a negative impact for her and her own
children. She received psychological treatment. She stated that her own children
cannot sleep and have nightmares . She explicated that s he and her daughter were
on medication to help them sleep. She further explained that for about a month after
the incident, she cried herself to sleep every night. She gets flashbacks. The trauma
has impacted her to the extent that there were times that sh e was booked off on sick
leave. The incident has had a negative impact on her work.
[44] Mrs Fienis explained that they loved F[...] and C[...] very much. What is
telling is that she stated: “IT WAS A EMBARASSEMENT FOR ME THAT MY OWN
BROTHER WAS THE OFFENDER. I WAS FEELING HURT…FOR ME THAT KIDS
DON’T DESERVE IT. THEY WAS SO CUTE AND LOVELY KIDS. THEY WAS SO
SMALL”.
Remorse
[45] It is trite that remorse is generally used as a factor to determine an
accused’s ability to be susceptible to rehabilitation and reform.7 It was argued that
7 See S v Ntuli 1978 (1) SA 523 (A) at 528B – C.
the absence of remorse should not be considered as an aggravating factor. In further
amplification reference to S v Mbatha 8 was made where the court promotes not
treating an alleged lack of remorse as an aggravating factor be cause it conflicts with
an accused’s constitutional right to put forward a defence and to remain silent.
[46] In S v D 9 it was held that remorse is a gnawing pain of conscience for the
plight of another and that genuine contrition can only come from an appreciation and
acknowledgement of the extent of one’s error. This was not evident when the
defence addressed the court in mitigation of sentence , however, it was raised with
Mr Pietersen during cross -examination where the process of remorse through
programmes can be achieved over time and that a demonstration of remorse is not
an overnight p rocess. Mr Pietersen responded that whilst those programmes are
available they are only valuable if someone is capable of change. According to Mr
Pieterse, the accused had the benefit over years but it did not yield any effect…in
this instance, after 5 years there is NO REMORSE, NO SHAME AND NO GUILTY.
[47] The accused has failed to fully take the court in his confidence. The accused
continues to maintain his innocence. In S v Matyityi10 it was stated that:
‘There is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not, without more
translate to genuine remorse. .. Whether the offender is sincerel y 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
genuiness and contrition alleged to exist cannot be determined. After all, before
a court can fin d that an accused person is genuinely remorseful, it needs to
have a proper appreciation of, inter alia: what motivated the accused to comit
the deed; what has since provoked his or her change of heart; and whether he
8 2009 (2) SA 623 (KZP) at 30 – 31.
9 1995 (1) SACR 259 (A) at 261a-c.
10 2011 (1) SACR 40 (SCA) at para 13.
or she does indeed have a true appreci ation of the consequences of those
actions.’
[48] The court still has no sense of whether the accused does indeed have a true
appreciation of the consequences of his actions. To this end, the letter written shortly
after the incidents to the mother of F[...] A[...], dated 22 June 2019, Exhibit “C”, may
have been the accused’s way of apologising without actually admitting in so many
words to the crimes. In this letter he expressed his love to F[...] A[...] and
encourages her to be strong and to look aft er herself. He further states: “Ek weet dat
ek haar diep seergemaak het, maar ek sal vir haar om v ergifnis vra die dag as ek
haar deur die glasvenster sal sien...”
[49] What the accused did is however irreconcilable with his declaration of love
for F[...] A[...]. His vicious attack on her and the children is by no means an
expression of love but rather a demonstration of control, dominance, destruction,
cruelty and manipulation. It is by all accounts the most brutal dem onstration of
Domestic Violence, at a tim e when domestic violence has been labelled as a
pandemic. There can be no other hurt imaginable than killing what every mother
holds dear, her children.
[50] Remorse is usually a factor that may sway a sentencing court to be merciful.
Without an act of geniune contritition, the conclusion reached by the Probation
Officer appears apt, who scribed that the accused’s insis tence to profess his
innocence as demonstrative that he show s no remorse which “can only lead one to
conclude that he is heartless and therefore not deserving of sympathy”.
[51] When Mr Pietersen was asked whether rehabilitation is not realistic he
responded: “HE CANNOT BE REHABILILITATED …NOTHING WILL DETER MR
KALMEYER FROM COMMITTING OFFENCES”
[52] When it was put to Mr Pieterse n by Counsel for the accused that there was
still “valuable human material left in Mr Kalmeyer” his response was “I DO NOT
AGREE…THROUGHOUT MY INTERACTION WITH THE OFFENDER THERE
WAS ON ONE IOTA OF REMORSE… THE FAMILY OF THE CHILDREN
REPORTED THAT HE TAUNTE D THEM…SAME BEHAVIOUR HE DISPLAYED
TOWARDS THE FAMILY OF MS J[…] WHOM HE ATTACKED PREVIOUSLY”
[53] Mr Pieterse ended off with these profound words: “IT IS THE EFFORT TO
AFFECT CHANGE BUT CHANGE COMES FROM INSIDE”
Mercy
[54] The court is mindful of its duty to keep the element of mercy in mind and that
the firmness of the sentence must be blended with mercy as stated in S v Rabie11.
[55] This concept of mercy, and its interplay with other considerations in
sentencing, including the aims of punishment and the Zinn-triad, were also
considered in S v Nteta & others 12. The court is alive to the fact that a wrongdoer
must not be visited with punishment to the point of being broken and while justice
must be done, mercy, not a sledgehammer must be its concomitant.
The seriousness of the offences
[56] The serious nature of an offence plays an important role in determining the
appropriateness of a sentence. Our country is plagued with violent offences and we
live in a society, which is becoming increasingly lawless. The seriousness of the
crime depends upon the outlook of society, the indignation with which the crime is
held in the eyes of society, in other words, the more repugnant a crime is in the eyes
of society, the more public outrage is elicited and the greater the punishment should
ideally be.
11 1975 (4) SA 855 (A) at para 862D – F, where Holmes JA stated: ‘(i) It is a balanced and humane
state of thought.
(ii) It tempers one's approach to the factors to be considered in arriving at an appropriate sentence.
(iii) It has nothing in common with maudlin sympathy for the accused.
(iv) It recognises that fair punishment may sometimes have to be robust.
(v) It eschews insensitive censoriousness in sentencing a fellow mortal, and so avoids severity in
anger.
(vi) The measure of the scope of mercy depends upon the circumstances of each case.’
12 2016 (2) SACR 641 (WCC).
[57] It was held in S v WV13 that:
‘It is the kind of sentence which we impose that will drive ordinary members of
our society either to have confidence or to lose confidence in the judicial
system…The sentences that our courts impose when offences of this nat ure
are committed, should strive to ensure that people are not driven to take the
law into their own hands…’
[58] The accused has been found guilty of very serious offences. In respect of
count 1, had it not been for the intervention of Ms A[...], Ms O[…] and Mrs Fienis, the
consequences could have been dire. The accused intended to cause grievous bodily
harm; wielding an iron object and declaring that he would kill Ms A[...] and the
children. His own sister had to physically kick the door of the Wendy house open
which allowed Ms A[...] and Ms O[…] to escape the accused’s wrath. Unfortunately,
little F[...] and C[...] wasn’t spared.
[59] It was also highlighted in my judgment on conviction that the rage displayed
by the accused had to have been so bad that Ms A[...] and Ms O[…] did not only flee
to safety, they were locked and hidden in the bedroom and Ms A[...]; Ms A[...] in the
wardrobe in the bedroom. The door of the main house was also locked. This
corroborated by the fact that the accused knocked on the door, an d even when he
enquired, he was told Ms A[...] wasn’t there. This was clearly done to protect Ms
A[...] from the accused. What followed was the propelling of C[...] who had already
sustained multiple knife wounds, through the glass window of the living room.
[60] When Ms A[...] was eventually let out of the room she walked into the most
devastating consequence and I suppose a mother’s worst nightmare, seeing her 18 -
month-old in pain lying amongst shards of glass and then seeing the lifeless body of
F[...] being carried in by the accused’s sister.
[61] According to Dr Scherman, the body of three (3) year old F[...] sustained 19
incised wounds of which some were penetrating ;11 wounds on the right arm could
13 2013 SACR 204 GNP.
have been defensive wounds. Al l the wounds were caused by sharp force trauma
inflicted by a knife or any sharp object. Little F[...] was declared dead on scene and
stood absolutely no chance against the violent anger of her assailant, which the
court found, could have been none other but the accused.
[62] As was pointed out by the state, F[...] had to be aware that she was being
hurt which is evident from the defensive wounds as she was brutally attacked by the
accused; the very person that fulfilled the role of father -figure to her. It is
unfathomable that the accused would take out his anger on this 3 -year-old child.
Repeatedly bludgeoning her little body with a knife no fewer than 19 times.
[63] The little body of 18 -month-old C[...], according to Dr Scherman, sustained
14 wounds, with 5 defensive wounds on the left arm. She explicated that 13 of the
wounds were sharp force trauma and 1 was caused by blunt force trauma to the
head, caused by him being hit by a beer bottle and /or then thrown through the
window of the main house. Dr Scherman explained that it was very upsetting to
examine the two bodies of 2 young children and opined that whoever is responsible
for their death “It was overkill”. A 3-year-old toddler and an 18 -month-old baby
could not have defended themselves.
[64] Denise Verna Thompson stated that she reported to her manager that they
were too traumatised to continue working and counselling was provided for them.
[65] The accused failed to give himself up and resisted arrest despite Sergeant
Marchell Anthony Petré Fortuin (“Sgt Fortuin”), being was dressed in full police
uniform. He tried to hit him with an iron object, wrestled with Sgt Fortuin and only
when teargas wa s used, did they manage to subdue the accused and place him
under arrest. The accused by no means made it easy for the police to place him
under arrest.
[66] The evidence on record described the scene as being chaotic, with
community members already being pres ent prior to the police arrival to effect the
arrest of the accused. In this regard it was contended by Counsel on behalf of the
accused that the court is to have regard to the fact that there was a community
uproar and that the accused himself was in dang er of being attacked. The evidence
is that the police had to control the crowds and when the accused was ultimately
placed in police custody they had to ensure his safe passage to the police vehicle.
[67] It was reiterated that the accused maintains his innocence. it was submitted
that the court is to have regard to the fact that the police did not sustain any injuries
and that the accused at the time did not pose a danger to the public. It was
submitted that the circumstances of this case ought to be viewed on the lesser scale.
Moreover, it was submitted that the resisting arrest charge flows from the incidents of
assault and murder and that the court should consider imposing concurrent
sentences, having regard to the cumulative effect of the sentence and prevent
possible duplication.
Interest of society
[68] Society demands that people who commit heinous crimes must be
punished.14 The court must consider the public’s interest in seeing that convicted
criminals are adequately punished, and seen to adequately punished, for their
crimes.15
[69] Society is looking at the courts for their protection against people who
commit crimes like the accused. If the courts fail to deal appropriately with criminals,
society will lose confidence in the courts and this will prompt society to take the law
into t heir own hands. In casu the community wanted revenge. The accused was
essentially protected from them taking the law into their own hands.
[70] It is the duty of this court to restore the confidence of the community to the
courts.
[71] It is so that violent crimes such as murder and robbery involving the use of
dangerous weapons such as knives have now become dangerously prevalent and
can be termed a pandemic. There is no doubt, that this has become a great concern
14 See R v Swanepoel 1945 AD 444 at p455.
15 S v X 1996 (2) SACR 288 (W) at 289 C-D.
to our citizenry and rightly so. It is therefore in the public interest that such crimes be
punished adequately and should serve as a deterrent to others who are like minded.
[72] Mr Pietersen testified that the manner in which the children were killed, fills
society with outrage as the murders were particularly brutal. Mr Pietersen opined that
the accused should be removed from society . Mr Pietersen testified that he lives
close to where th e incident occurred and stated that there is still a buzz in the
community. People are angry and they want justice. There are still people who
allegedly threaten the sister of the accused because the accused’s sister agreed to
have the accused live with her after his release from prison.
[73] According to Mr Pieterse n, the community holds a grudge against the
accused’s family and it is very likely that is he were to be released from prison, harm
will be done to him.
Minimum Sentences with reference to substantial and compelling circumstances
[74] Prior to the enactment of the prescribed minimum sentences, sentencing
primarily and exclusively fell within the discretion of the Courts. The courts ha d due
regard to the triad, the crime, the interests of society and the circumstances of the
accused, were free, to impose whatever sentences, they deemed just and fair as per
the common law. This position has however changed, to the extent, that whenever
an accused, is charged with one of the listed offences in the Schedules, the starting
point now is Section 51 of the Criminal Law Amendment Act 105 of 1997.
[75] It is trite that in considering whether there are substantial and compelling
circumstances, the cour t should consider all the aggravating and mitigating
circumstances collectively. As to the approach to be followed, this court is bound to
follow the guidelines laid down in S v Malgas 16. This case sets out how the
minumum sentencing regime should be appr oached and in particular how the
enquiry into substantial and compelling circumstances is to be conducted by a court.
The court stated as follows:
16 2001 (1) SACR 469 (SCA).
‘What stands out quite clearly is that the courts are a good deal freer to depart
from the prescribed sentences than has been supposed in some of the
previously decided cases and that it is they who are to judge whether or not the
circumstances of any particular case are such as to justify a departure.
However, in doing so, they are to respect, and not merely pay lip service to, the
legislature’s view that the prescribed period of imprisonment are to be ordinarily
appropriate when crimes of a specified kind are committed.’17
[76] Malgas, according to Navsa JA, in DPP KZN v Ngcobo 18 states it is ‘not
only a good starting point but the principles stated therein are enduring and
uncomplicated'. Malgas, which has since been followed in a long line of cases, sets
out how the minimum sentencing regime should be approached and in particula r
how the enquiry into substantial and compelling circumstances is to be conducted by
a court. I paraphrase from Malgas, ‘[t]he fact that Parliament had enacted the
minimum sentencing legislation was an indication that it was no longer business as
usual'.19
[77] ‘A court no longer had a clean slate to inscribe whatever sentence it thought
fit for the specified crimes. It had to approach the question of sentencing conscious
of the fact that a minimum sentence of 15 years imprisonment had been ordained as
the sentence which ordinarily should be imposed unless substantial and compelling
circumstances were found to be present... That 'determinative test' for when the
prescribed sentence may be departed from was expressed as follows in Malgas
supra and it deserves to be emphasised, ‘[i]f 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.’
17 At para 25.
18 2009 (2) SACR 361 (SCA) at para 12.
19 At Para 7 and 8.
[78] It was made clear in Malgas that the relevant provision in the Act, vests the
sentencing Court with the power, indeed the obligation, to consider w hether the
particular circumstances of the case require a different sentence, to be imposed. And
a different sentence must be imposed if the court is satisfied that substantial and
compelling circumstances exist which "justify" the imposition such a sentence.20
[79] Apart from the obvious question as to what sentences are appropriate, so
too is the question whether or not substantial and compelling circumstances are
present, justifying a departure from the prescribed minimum sentences. The age of
the offender, the criminal record of an accused has all been held to be factors that
need consideration, when the appropriateness of a sentence is to be considered.
[80] The Supreme Court of Appeal expressed the view that once a court finds
substantial and compelling circumstances to be present it may impose any sentence
which it regards to be appropriate. See also S v Hildebrand21.
[81] As rightfully pointed out by the defence, Section 51(3) of the Act, confers a
limited discretion upon the courts to depart from the prescribed minimum sentences,
as it creates two preconditions namely:
(a) It must determine, if substantial and compelling circumstances are present,
that justifies a departure, from the prescribed sentence.
(b) The substantial and compelling circumstance(s) is to be placed on record.
[82] In the absence of these two preconditions, courts are obliged, to impose the
prescribed minimum sentences, and m ay nevertheless, despite such circumstances,
still impose the prescribed sentence. 22 When imposing the prescribed sentences,
courts are bound, to focus more on the retributive and deterrent purposes of
sentence, than the rehabilitation and reformation of the offender.23 The result may
20 See also S v Dodo 2001 SACR 594 (CC) at 615f-h.
21 (00424/2015) [2015] ZASCA 174 (26 November 2015) at para 8-10.
22 S v Mthembu 2012 (1) SACR 517 (SCA) at para 11.
23 See S v Swart 2004 (2) SACR 370 (SCA) at para 12 and 14, and DPP -KZN v Ngcobo and Others
2009 (2) SACR 361 (SCA) at para 22.
be, that despite the favourable circumstances of the accused, a court may, after
having regard to the interests of society, and the nature of the offence, still decide, to
impose a heavier sentence than the prescribed one.
[83] It is trite that when the court decides to impose the prescribed sentences,
courts are bound, to focus more on the retributive and deterrent purposes of
sentence, than the rehabilitation and reformation of the offender. Boshielo JA in held
in S v PB 24 that ‘Minimum sentences to be imposed are ordained by the Act, They
cannot be departed from lightly or for flimsy reasons .’. The learned Judge of Appeal
held further that the term substantial and compelling circumstances was elastic
enough to include even ordinary mitigating circumstances and that it involves a value
judgment on the part of the sentencing court.
Submissions pertaining to substantial and compelling circumstances.
[84] The defence submitted that substantial and compelling reasons exist that
justify the court to consider imposing a lesser sentence. In this regard, the court is
enjoined to approach sentencing the accused on his unique circumstances in a
manner that promotes the spirit, purport and objects of the Bill of Rights.
[85] It was submitted that the court is to have regard to t he accused personal
circumstance, taking into account that the accused is not young, being in his mid-
50’s and that he grew up in poverty as well as his level of education, having failed
grade 8 three times. I t is round about this time, that the accused’s father passed
away. He has one surviving estranged daughter whom he did not want to burden
with his unstable and traumatising life. He admitted to being a member of the 28
gang only while incarcerated. In thi s regard it was argued that gang membership is
part of prison culture and necessary to remain protected from violence and death in
prison. Before his incarceration and after his release for his prior convictions, he was
not involved in any gang activity despite growing up and living in a community riddled
with drugs, poverty and gangsterism.
24 2013 (2) SACR 533 (SCA) at 539 para 20.
[86] It was submitted that the court is to take cognisance of the fact that the
accused, when he was sentenced at the age of 16 years was exposed to corporal
punishment. This, it was argued, conveyed an incorrect message to the accused that
violence was an acceptable means of meting out punishment. It was emphasised
that the accused d id not obtain the proper assistance and counselling through
government programmes. It was highlighted that Mr Pietersen made the concession
that there is a general decline in criminality that comes with aging.
[87] It was contended that the accused was not affo rded adequate legal
representation which culminated in the denial of his right to the expungement for his
offences older than 10 years, diversion, mediation and representation for his earlier
offences and property and adequate intervention by the state.
[88] It was argued that the accused’s personal circumstances are to be
considered in a manner that promotes the spirit and purport and objects of the Bill of
Rights in keeping with what the Constitution en visages, namely to redress injustices
of the past. This argument went on further to highlight the inequalities perpetrated by
apartheid; where dehumanisation deprived people of colour from their dignity and
basic rights. Various other factors were illuminated to demonstrate the aftermath of
apartheid on coloured communities in particular. It was argued that the historical
race-based disadvantage that the accused experienced as a coloured person ought
to be regarded as a mitigating factor as it negatively impacted his life and stunted his
growth.
[89] Counsel on behalf of the accused contextualised the fundamental underlying
reasons and circumstances which draws males in particular to gangsterism. In this
regard, research shows that vulnerable males who come from dysfunctional families,
with unhealthy and insecure parent relationships are targeted recruits. It was
submitted that the accused’s prison gang affiliation should not be held against him as
an aggravating factor nor as a factor that justifies a declaration of habitual criminal.
[90] It was furthermore contended that the time already served by the accused,
awaiting trial should be taken into consideration, having been arrested on 1 May
2019. It was furthermore submitted that pre-trial detention is generally regarded as
being more onerous than post-sentence detention.
[91] Counsel on behalf of the state contended that the seriousness of the crimes
and the interest of society outweigh the personal circumstances of the accused and
called for the imposition of minimum sentence on the murder charges. It was
submitted that no substantial and compelling circumstances are present to deviated
from the prescribed minimum sentence.
Discussion
[92] In Makwanyane25 the Constitutional Court held that violent act of those who
destroy life cannot be condoned and severe punishment should be meted out where
deserved. The wilful taking of a human life calls for a severe penalty. Perpetrators of
such crimes must be dealt with according to our system of criminal justice.
[93] This court wishes to emphasise that it is mindful of its duty to adjudicate
these proceedings on the unique facts of this matter especially insofar as it relates to
this accused before court. I would like t o pertinently mention that I have carefully
considered every detail of the accused’s personal circumstance as it has been
thoroughly and meticulously placed before me and have taken serious regard
thereto.
[94] This court is also fully aware that a Probation Officer’s report is there to
assist the court and a recommendation made by a Probation Officer in no way
usurps the court’s judicial function to decide on an appropriate sentence.
Concessions by the Probation Officer and omis sions by the Probation Officer as
illuminated by the defence are important considerations for this court to contemplate
when coming to an ultimate decision on sentencing.
Declaration as a habitual criminal
25 1995 (1) SA 391 (CC).
[95] Whilst the invocation of Section 286 of the Crimi nal Procedure Act was
suggested by the Probation Officer, the court does not deem it appropriate despite
the fact that the accused has been warned and view of the sentence that this court
envisages to impose.
[96] The court is astute not simply rubber stamping a recommendation from a
Probation Officer and will consider the matter in light of the unique circumstances of
this case and apply the appropriate sanction as I deem mete.
Conclusion
[97] This court has carefully listened to the submissions by the def ence as to the
accused’s difficulties and struggles after losing his father. The court acknowledges
that the accused may have been failed by various key role -players over time and it
may be that if he was afforded the necessary appropriate support and tool s, his life
and life choices may have followed a different trajectory and may have had different
outcomes for him.
[98] Whilst this court has a measure of understanding to the plight of the
accused, he cannot hide behind these failures to justify why his life has turned out
the way that it did; I say this because no matter who you are in life and where you
come from, as an adult you should be able to know the difference between right and
wrong. Every person has a moral compass. In the accused’s instance, it is apparent
that he came from a good home ; his parents being referred to as god -fearing must
have raised him up on Christian values with proper grounding . This in an d of itself
supports this court’s contention that the accused should have an inherent sense of
what is right and wrong.
[99] There is no doubt that there is no place in society for people such as the
accused. In considering an appropriate sentence the court must endeavour to
restore the trust of society in the criminal justice system. The court has due regard
for the bench mar ks set by the legislature and it is through the minimum sentence
legislation that life imprisonment has been ordained.
[100] Society needs to be protected from the accused who callously, brutally,
viciously and cowardous ly took out his frustrations, on two innocent, defenceless
children. These are the children he professed to care for as a so -called loving father.
The severity of the impact of the murders on the mother of F[...] and C[...]; the
grandparents, their sibling the community and the accused’s own f amily. The family
and community will mourn the untimely loss of the lives of F[...] and C[...] forever;
having to live with the traumatic consequences and wonder what could have driven
someone to murder two innocent children in such an inhumane manner.
[101] I have already indicated that despite the contention, a Section 286
declaration is not deemed suitable. It is noteworthy that t he accused began
displaying uncontrollable behaviour since his early teens , which behaviour was
described by Mr Pietersen to include aggression, disobeying his parents and being in
trouble with his teachers. It is evident that previous interventions have had no effect
on the accused as he was afforded numerous exposures to social workers’
interventions and programmes which has evidently not borne any fruit in shaping the
accused’s attitude towards crime and criminality.
[102] The accused’s resistance of arres t also speaks volumes about the
accused’s attitude towards authority and is demonstrative of the fact that the
accused has no respect for the law, let alone others. He is a self-confessed member
of the 28’s prison gang. I will accept in the accused’s favou r that he has no affiliation
with any gang outside of prison. I have taken cognisance of the history and origin of
the prison gang culture and ultimate reasons that inform the general prison
population to align with a gang inside prison; however, again it comes down to
choices that the accused makes.
[103] As previously stated, t he accused was raised by God -fearing parents who
strove to instil in him a strong sense of responsibility and decency. He was raised
with good morals and upon enquiry by the social work er, the behaviour of the
accused contrasts with the attestations of his sister Maria Fienis who describe d him
as a good man . Yet, the accused callously maintained a relationship with the family
of the victims; reaching out to the mother of Ms A[...] by way of a letter. He has been
said to taunt his victims, which actions he displayed in this matter as well. He was a
close frien d of the father of Ms A[...]. He is much older than her and should have
been there as her protector. The attack on Ms A[...] and gruesome killing of the
children, is a betrayal of his friendship with Ms A[...]’ parents who trusted him with
their daughter and grandchildren. This trust was indeed brutally violated through his
unexpected and unnecessary cruelty perpetrated against two innocent children. The
extent of the injuries on those two little bodies is unfathomable, F[...] having
sustained 19 stab wounds a nd C[...] having sustained14 stab wounds with a fatal
head injury is nothing short of barbaric.
[104] This court is further mindful that Ms A[...] sustained no injuries. This is not
because the accused did not want to hurt her, but because he was stopped before
he could actually hurt her; having made his intentions plain whilst wielding a n iron
object. Ms A[...] was essentially rescued before the accused could complete his
intention at that time the accused held her by the collar. Seen within the context of
the s cene is indicative that the accused had intentions to execute his threat. The
facts of this matter must be considered in its totality in order to appreciate how, why
and where the course of events started and how it all ultimately ended.
[105] The Constitution of the Republic of South Africa provides that all persons
have the right to life and to be free from all forms of violence. This court is aware that
any punishment will not bring little F[...] and C[...] back, but perhaps it will hopefully
assist the family and community to find some closure and commence the journey
towards healing. Counsel for the state likened what F[...] is experiencing to her still
being stuck in that Wardrobe because it is in that wardrobe that things changed
drastically. When she came out of the wardrobe she walked into nightmare and she
is still caught up in that nightmare, as she hears the cries of F[...] and C[...], hoping to
wake up and be told that it was all a dream.
[106] The accused has inflicted the deepest hurt p ossible to Ms A[...] then
anyone then in the letter “Exhibit C”, comforts that her with Psalm 50 verse 15.
[107] The accused’s violent, repugnant and heinous behaviour is demonstrative
of someone who is highly dangerous; more especially because he has not displayed
any guilt or remorse. I am not persuaded that the accused can be rehabilitated, given
the opportunities he had in the past and more especially the seemingly flimsy reason
that triggered Mr Kalmeyer’s rage . The question to be that arises is what e vent will
next trigger such rage. Society needs to be protected. Human life must be viewed as
sacrosanct. The egregiousness and brutality of these offences are so heinous that
there is no other sanction, but for the accused to be removed permanently from
society because of his egregious behaviour. This court is intent on sending a very
clear and strong message to the accused and all would be offenders that heinous,
senseless and brutal murders on our most vulnerable citizens of South Africa , our
children, will not be tolerated and will be meted with the full might of the law.
[108] After carefully considering the submissions made by Counsel for the
accused, t his court cannot find any substantial and compelling circumstances ,
individually or cumulatively to enable it to depart from the prescribed minimum
sentence ordained by the legislature and is mindful that it cannot do so for flimsy
reasons; which principle has been repeatedly endorsed by a plethora of cases
dealing with minimum sentences.
Sentence:
[109] As a result, of the aforementioned reasons, I consider the following
sentence to be fair, just and proportionate , taking all factors into account in these
circumstances as per Annexure “A”:
(a) Count 1 – Assault with intent to do grievous bodily harm - 5 years ’
imprisonment.
(b) Count 3 – Murder read with the provisions of Section 51(1) of the Crimi nal
Law Amendment Act 105 of 1997 - Imprisonment for Life.
(c) Count 4 – Murder read with the provisions of Section 51(1) of the Crimi nal
Law Amendment Act 105 of 1997 - Imprisonment for Life.
(d) Count 5 – Resisting Arrest - 2 years’ imprisonment.
By operation of law, all these sentences on counts 1 and 5 automatically
run concurrently with the sentences of life imprisonment, in terms of
Section 39(2) of the Correctional Services Act 111 of 1988.
Ancillary Orders:
1. In terms of Section103 (1) of the Firearms Control Act 60, (Act 60 of
2000), the court makes no order. The a ccused is hereby deemed unfit to
possess a firearm.
2. In terms of Section 103(4) of Act 60 of 2000 , the court issues a search and
seizure order for competency certificates, licences, authorisations and
permits; firearms and ammunition.
3. The Chief Registrar is ordered to inform the Registrar: Central Firearms
Control Register in writing of this order.
4. In terms of the provisions of Section 299A of the Criminal Procedure Act
51 of 1977 , as per Annexure “B”, the family of the deceased’s are to be
notified or if present in court are informed that they have the right to be
present should the accused be considered for parole that they can make
representations at such parole meetings . The Registrar is directed to
complete the relevant forms to hand to the complainant.
___________________________
P ANDREWS, AJ
Acting Judge of the High Court
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Annexure: A
Case Number: CC44/2020
In the matter between:
THE STATE
and
DERICK KALMEYER
SENTENCE ORDER
___________________________________________________________________
As a result, the following sentence is imposed on the accused:
(a) Count 1 – Assault with intent to do grievous bodily harm - 5 years ’
imprisonment.
(b) Count 3 – Murder read with the provisions of Section 51(1) of the Crimi nal
Law Amendment Act 105 of 1997 - Imprisonment for Life.
(c) Count 4 – Murder read with the provisions of Section 51(1) of the Crimi nal
Law Amendment Act 105 of 1997 - Imprisonment for Life.
(d) Count 5 – Resisting Arrest - 2 years’ imprisonment.
By operation of law, all these sentences on counts 1 and 5 automatically
run concurrently with the sentences of life imprisonment, in terms of
Section 39(2) of the Correctional Services Act 111 of 1988.
Ancillary Orders:
1. In terms of Section103 (1) of the Firearms Control Act 60, (Act 60 of
2000), the court makes no order. The accused is hereby deemed unfit to
possess a firearm.
2. In terms of Section 103(4) of Act 60 of 2000 , the court issues a search and
seizure order for competency certificates, licences, authorisations and
permits; firearms and ammunition.
3. The Chief Registrar is ordered to inform the Registrar: Central Firearms
Control Register in writing of this order.
4. In terms of the provisions of Section 299A of the Criminal Procedure Act
51 of 1977, as per Annexure “B”, the family of the dece ased’s are to be
notified or if present in court are informed that they have the right to be
present should the accused be considered for parole that they can make
representations at such parole meetings. The Registrar is directed to
complete the relevant forms to hand to the complainant.
____________________________
P ANDREWS, AJ
Acting Judge of the High Court
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Annexure B
Case Number: CC44/2020
In the matter between:
THE STATE
and
DERICK KALMEYER
NOTICE IN TERMS OF SECTION 299A
RIGHT OF COMPLAINANT TO MAKE REPRESENTATIONS WITH REGARD TO
PLACEMENT ON PAROLE OR CORRECTIONAL SUPERVISION OF OFFENDER
1. The complainant/immediate relative of deceased victim is informed that as the
accused has been convicted and sentenced to imprisonment for murder or any other
offence which involves the intentional killing of a person; he/she has the right to
make representation to the Parole Board of Correctional Services when placement of
the prisoner on parole or under Correctional Supervision is considered.
2. If the complainant or a relative intends to exercise the right by making
representations to or attending a meeting of the parole board, he or she has a duty—
(i) to inform the Commissioner of Correctional Services thereof in writing;
(ii) to provide the said Commissioner with his or her postal and physical
address in writing; and
(iii) to inform the said Commissioner in writing of any change of address. 3.
In terms of Government Notice R248 of 7/4/06 (The Directives), the
complainant or a relative is requested to complete the attached form
and hand it to the clerk or assistant registrar of the court before the end
of the court day. Copy handed to complainant/family member.
____________________________
P ANDREWS, AJ
Acting Judge of the High Court