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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CIRCUIT LOCAL DIVISION, KNYSNA
CASE NO : CC10/2023
DATE : 2024.10.04
In the matter between
THE STATE
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and
WAYDON BEZUIDENHOUT Accused
SENTENCE
GAMBLE, J :
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INTRODUCTION
1. When a Court hands down sentence in criminal proceedings
it seeks to achieve a number of ends. The particular accused
must be punished for the crimes he has committed, and in that
sense, the sentences serve as retribution for the wrongs visited
by him on the members of society directly affected by the crimes
of which he has been convicted.
2. In addition, the sentence must serve as a deterrent for that
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individual offender to dissuade him from offending again, and also
more generally, for other likeminded persons who may be
considering going down the same path. In appropriate cases the
Court’s sentence must take into account the prospect for
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rehabilitation of the offender and for his reformation upon release
from prison.
3. In seeking to achieve these purposes the Court must have
regard to the so- called triad approach, which takes into account
the three fundamentals of any just sentence: consideration of the
crimes involved, the interests of society, and the personal
circumstances of the accused concerned. See S v Zinn 1969(2)
SA 537 ( A).
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4. All of these considerations must be blended with an
element of mercy or compassion, having regard to the innate
weakness of all human beings. Lastly, the Court must take into
account the cumulative effect of the sentences it will impose in
order that they do not have a crushing effect on the offender.
5. In this case, the State gave notice at the commencement of
the proceedings that it intended asking the Court to impose the
minimum sentence which the legislature deemed appropriate when
it passed the Criminal Law Amendment Act 105 of 1997, (“the
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minimum sentencing legislation”). In terms of Section 51 of that
Act , read with the relevant schedules, the minimum sentence
applicable in this matter is life imprisonment in respect of the
murder c onviction on count 2.
6. During his address on sentence, Mr Badenhorst that the
State persisted with its request that the Court consider adhering
to the minimum sentence. The conviction on the murder count
attracts a minimum sentence of life imprisonment under Part 1 of
Schedule 2 to the minimum sentencing legislation , because –
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“(a) it was planned or premeditated, a nd…
(d ) t he offence was committed by a person, group of
persons or syndicate acting in the exec ution or furtherance
of a common purpose or conspiracy. "
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7. Mr Badenhorst asked that the minimum sentence of five
years be imposed on the kidnapping conviction on count 1 under
Part 4 of Schedule 2, because, he argued, the accused used a
firearm in the commission of the offence. B ut that is not correct.
The Court found that the accused’s version that a firearm was
used to escort the deceased to the car at 5:00 in the morning was
not reasonably possibly true. On Wandu’s version regarding the
abduction around 22:30, there was no firearm involved.
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8. The minimum sentencing legislation was introduced by
Parliament in 1997 as an interim response to the extraordinarily
high levels of crime which pervaded our young democracy at the
time. And yet more than 27 years on the levels of serious and
violent crime have not abated. The opposite is rather the reality
which we all face on a daily basis. Rampant crime in public
places, at the workplace, and in our homes, as was the case here.
And more recently there has been a surge in cases of kidnapping
and extortion. The courts are therefore bound to have regard to
what Parliament has determined as appropriate sentences in the
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prevailing circumstances.
9. The minimum sentencing legislation obliges a Court to
impose the prescribed statutory minimum, and it is only entitled to
deviate therefrom if it is satisfied that there are substantial and
compelling circumstances present which warrant a deviation from
what is regarded as the sentence which should ordinarily be
imposed. In the result , the minimum sentencing legislation shifts
the emphasis to the objective gravity of the offence concerned
and the public’s need for effective sanctions against it. See S v
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Malgas 2001(1) SACR 469 SCA.
10. The Court in Malgas at paragraph 25 made it clear that:
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"C. Unless there are and can be seen to be truly
convincing reasons for a different response, the crimes in
question are therefore required to elicit a severe,
standardised, and consistent response from the courts.
D. The specified sentences are not to be departed from
lightly or for flimsy reasons. Speculative hypotheses
favourable to the offender, undue sympathy , aversion to
imprisoning first offenders, and personal doubts as to the
efficacy of the policy underlying the legislation… are to be
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excluded.
E. The legislature has, however, deliberately left it to the
Courts to decide whether the circumstances of any particular
case call for a departure from the prescribed sentence.
While the emphasis has shifted to the objective gravity of
the type of crime and the need for effective sanctions
against it this does not mean that all other considerations
are to be ignored.
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F. All factors other than those set out in D above
traditionally taken into account in sentencing, whether or not
they diminish moral guilt, thus continue to play a role. None
is excluded at the outset from consideration in the
sentencing process.
G. The ultimate yardstick of all the circumstances relevant to
sentencing must be measured against the composite
yardstick (“ substantial and compelling”) and must be such as
cumulatively justify a departure from the standardised
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response that the legislature has ordained."
Against that background I turn to the specifics of this case:
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THE ACCUSED
11. Mr Waydon Bezuidenhout is 32 years old and a first
offender. He is married, with one child from that marriage, and
four other children by other mothers. The status of his
relationship with those other children is not known. At the time of
his arrest the accused conducted the funeral parlour business
referred to in the main judgment and had also procured a tender
to install fibre cables for Wi -Fi in Knysna. He has been in custody
for just over two years, awaiting trial.
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12. Ms Luterek called the accused’s father, Mr Willem
Bezuidenhout , to address the Court in mitigation. This was at the
express request of Mr Bezuidenhout Senior . The accused’s father
is an upstanding retired person who has faithfully attended court
every day to support his younger son. The Court noted that
Mr Bezuidenhout Senior was always formally dressed, as a sign of
respect to the court proceedings. The Court commends him for
that. Other members of the accused’s family have also regularly
attended court to support him.
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13. Unfortunately, Mr Bezuidenhout Senior was excluded from
the Court when his son gave evidence in camera and was
therefore not privy to his son’s admissions of involvement in the
local drug underworld and of his adultery with a teenager in high
school . B ut perhaps that was a blessing in disguise, for I am sure
it would have pained him greatly.
14. Mr Bezuidenhout Senior made an address to the Court
and those in the public gallery who were here to support the
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Kondlo family , and he made that address on behalf of the
Bezuidenhout family, expressing their deep regret at the pain and
suffering that the death of the deceased has occasioned the
Kondlo family. It was a heartfelt demonstration of regret by the
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head of the family, which the Court accepts as genuine.
15. In addition, Ms Luterek handed up a handwritten letter
from the accused, EXHIBIT VV, in which he expressed sympathy
with the deceased’s family and asked for forgiveness. He
maintains that he still fears for his life, having spoken out at last.
Perhaps the Kondlo family would have preferred to have heard
those words directly from the accused in the witness box where
he could be cross -examined. But rather he chose to do so from
the dock, as is his right. I will accept that there has a measure of
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remorse expressed by the accused.
THE FAMILY OF THE DECEASED
16. The State handed up four victim impact reports written by
Ms Kondlo and the three children. The reports were drafted in
March 2023 and so the Court does not know what the current
position is as far as the psychological harm the family has
suffered, is concerned . The Court can only hope that the
counselling the family has received has helped in some small way
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to alleviate the pain and hurt they have all experienced. The Court
repeats that it was very impressed with Wa ndu and Umtha when
they gave evidence and hopes they make a success of their
school careers and beyond, in honour of their late father.
17. The state ments by the children in particular are
heartbreaking to read. They all adored their father very much and
looked up to him with great admiration. He was their role model
and confidant. He was a good man and an important member of
his society, who did not deserve to die young, and certainly not in 30
such a brutal manner. Now they have no- one in his place. It is
clear that this event has caused the children psychological harm
and trauma and the Court can only hope that the consequences
thereof do not affect them unduly as they grow older.
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18. There are truly no winners in a situation such as this. The
accused leaves behind a wife and a young child, who will also
have to bear the consequences of his criminal conduct and
unfaithfulness of which she has only recently become aware. It is
the Court’s sincere wish that the families, who are all faith- based
people, will find it in themselves to reach out to one another and
begin the process of healing. Perhaps Mr Bezuidenhout Senior ,
you can start that process by putting your heartfelt words in the
witness box into deeds? I leave it in your hands.
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THE CRIMES
19. I agree with the State that this was a most horrific
premeditated crime. For a reason we still do not know , an
upstanding member of the Knysna community was taken from the
sanctuary of a home which he had proudly built up into a
business, held hostage, probably tortured, and eventually brutally
attacked, suffocated and murdered.
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20. According to the accused’s evidence the plan was
hatched more than three weeks before and he was given an
unlicenced firearm to do the job because the deceased was his
friend and he would thus be able to get close to him easily. The
fact that the accused went to collect a firearm on the Satur day
morning when he and the deceased drove through to The Crags ,
suggests that he was contemplating doing the job then, but we
really do not know.
21. But imagine the shock of the deceased on the Saturday
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night when he saw that the man he affectionately called " Master"
was part of the plot to abduct him. And, imagine his fear and
horror at the Denron scene when he saw that the deceased was
back to participate in the attack which ended his life. It was a
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complete and utter betrayal of the trust he had in the accused.
Like Julius Ceasar he might have thought “et tu B rute. ”
22. The accused had ample opportunities to secretl y caution
the deceased of the im pending attack and afford him an
opportunity to avoid it , but he did not do so. Rather, he abused
the trust the deceased placed in him and allowed him to fall prey
to his attackers in his own home. And importantly, the accused
was there when the deceased was abducted and would have
known of his desperate call to Umtha, yet he did nothing. Perhaps
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he was powerless to do anything at that stage because the
abductors were operating in concert with each other and it would
have compromised his own safety if he had broken ranks. But ,
that is how criminal gangs operate: once you are in, there is no
way out.
23. But the accused walked into this with open eyes. It was
he who went to A li and asked to become a member of their
underworld syndicate. No -one forced him to join in. And he must
have been aware of the risks he was taking on at that stage
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already. After all , as he said he knew that these were violent men
who part of the local underworld who resorted to extortion and the
like.
24. Similarly, no -one forced him to go to the deceased’s
house that night, because as the accused claims, Mavusi had lost
faith in his ability to get rid of the deceased and had arranged for
an assassin to come down from Port Elizabeth. The movement of
the Mali phone confirms that there was a m ovement of one or
more person from PE to Knysna and back that weekend and that
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that phone was in the deceased’s house.
25. The accused could have avoided going to the house that
night. He is good at making excuse s and hoodwinking people, and
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he might even have arranged a flat tyre or the like which could
have legitimately kept him away from 147 Mbethane Street . But he
did nothing of the sort. He went to the house and actively
participated in stealthily luring the deceased out of the house,
thereafter leaving him in the hands of others while he went off and
danced the night away.
26. Having allegedly dropped his wife off at home after a
night on the town, at 5:00 in the morning the accused went to the
deceased’s house. And when the children told him he was not
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there, he rushed through to the Denron scene, where the
deceased was brutally assaulted. He stayed there for almost 20
minutes before setting off back down the R339, where he stopped
at the Gadafi store, probably to buy insulation tape and a bag to
cover the deceased’s head. From there he went down to the N2
and after making a U -turn r ushed back to the drop scene. It is
likely that the accused was not alone at that stage as he needed
someone to help him get the body in and out of the X -Trail.
27. The fact that the accused only idled for two minutes at
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the drop scene suggests that the deceased had already been
bound up at the Denron scene and was ready to be dumped. Then
the accused drove up and down the Bokkoppie Road passing the
body scene on another two occasions. That could only be because
he wanted to make sure that the deceased was not moving.
28. Once again, it was open to the accused to avoid having to
drive to the Denron scene. Surely his presence was not required if
Mavusi procured a hitman who was armed? The fact that the
accused persisted in driving on to the Denron scene clearly
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suggests that he intended to be there. Just why he had to be
there we will never know because the accused has still not taken
the Court into his confidence and explained the reason for this
senseless killing.
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29. For these reasons I am of the view that the accused’s
moral blameworthiness in relation to the kidnapping and the
murder is at a very high level. But it did not stop there. After he
had dropped the deceased he went back to the house and duped
the children into believing that their father was still alive by
asking them whether he was at home, when in fact he knew very
well that he had just dumped him the forest and left him for dead.
How callous can a person be? And that attitude persisted in the
days thereafter when the accused lied to, and misled, both
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Mrs Kondlo and the police and the children, doing his level best to
keep the police away from the car.
THE INTERESTS OF SOCIETY
30. Murder is rife is our society and the daily crime statistics
that one reads about in the media are truly staggering.
Assassinations are now common place all over the country.
Ordinary people going about their daily work and chores are sick
and tired of the level of violence that pervades our society and
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they look to the courts for protection. And if the courts fail them,
they take the law into their own hands and society descends
further into lawlessness.
31. It is thus important that the courts do what they can to
look after the interest s of society as best they can. Kidnapping in
particular has become rife of late. The prosecutor submitted crime
statistics that show that for the period July 2023 to September
2024 there have been 4 300 reported cases of kidnapping. That
figure is truly worrying.
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32. As far as the obstruction of the administration of justice
is concerned, the delay s caused and the extra work which the
police must do when they are obstructed in the course of their
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duties comes at a price for the public purse. The law -abiding
public demands that crimes be investigated without hinderance
and perpetrators brought to book as soon as possible.
SUBSTANTIAL AND COMPELLING CIRCUMSTANCES
33. The minimum sentencing legislation requires that the
Court consider the entire factual matrix of the case and determine
whether there are circumstances which, when considered
cumulatively , are serious enough to avoid the imposition of a
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sentence which the legislature has directed should be imposed in
these circumstances. These must be truly convincing
circumstances of substance, and not flimsy reasons. Ms Luterek
suggested in this regard that the accused was relatively young
and could benefit from corrective programmes in prison. With the
latter I agree. But the accused is hardly young at 34 years old. He
is a mature adult who ran his own business and served the
community as an undertaker, which is no easy task. His age is not
a mitigating factor.
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34. Then Ms Luterek said that the accused had spent two
years as an awaiting trial prisoner. It is a regrettable aspect of
our criminal justice system that there are delays in getting matters
into court. That is because our court rolls are overloaded and
cases take time. This case has taken seven weeks to bring to
finality. The protraction of this case may well have been arrested
earlier if the accused played open cards with the police and the
Court. In the circumstances of this case therefore I do not
consider the awaiting trial period to be a compelling reason to
avoid the mandatory sentence.
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35. Ms Luterek said that the accused continues to be
subjected to threats by his henchmen. Of that I have little doubt.
When one member of a gang falls foul of the law the rest will
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certainly do their best to ensure that they are not ratted out. But
that is now, and I have found that the accused did not commit
these crimes because he was threatened by others at the time.
The threats that he has received are after the event and they are
not a factor that led to the c ommission of the offence. They
should therefore not be considered as a compelling reason to
avoid the mandatory sentence.
36. The fact that the accused was not present throughout the
detention of the deceased might , in appropriate circumstances , be
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said to reduce a person’s moral blameworthiness . But here, his
involvement at the beginning and at the end of the escapade are,
as I have already said, significant and carry a high degree of
moral blameworthiness. It is not a factor to avoid the mandated
sentence.
37. Lastly, there is the evidence that the accused drank
regularly that night. But in his evidence he never raised this as a
factor for consideration. R ather , he bragged about it . It was he
who told his fellow criminals that he might need a little Dutch
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courage to do the job. But his actions that night were rational and
goal -directed. His consumption of alcohol is thus not a substantial
and compelling reason to avoid the designated punishment.
38. Sentencing is not an easy task for a judicial officer. One
has another fellow human being’s future in one’s hands ; but that
is what the criminal process requires to be done, and it must be
done. I have thought long and hard about this matter , but I am
unable to find any substantial or compelling reason to deviate
from what the minimum sentencing legislation requires me t o do.
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THE SENTENCES OF THE COURT ARE AS FOLLOWS:
COUNT 1 - KIDNAPPING :
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FIVE (5) YEARS IMPRISONMENT.
COUNT 2 - MURDER :
LIFE IMPRISONMENT
COUNT 3 - DEFEATING OR OBSTRUCTING THE
ADMINISTRATION OF JUSTICE : 10
TWELVE (12) MONTHS’ IMPRISONMENT
.
IN TERMS OF SECTION 39 OF THE CORRECTIONAL SERVICES
ACT 111 OF 1998 THE SENTENCES ON COUNTS 1 AND 3 WILL
RUN CONCURRENTLY WITH THE SENTENCE OF LIFE
IMPRISONMENT .
GAMBLE , J
JUDGE OF THE HIGH COURT 20