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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
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: CC68/2020

In the matter between

THE STATE

and

MARVIN MINNAAR Accused
______________________________________________________ ________________

JUDGMENT ON SENTENCE DELIVERED 18 FEBRUARY 2025
_____________________________________________________ _________________

NZIWENI, J :

Introduction and background

[1] The events that were chronicled in this case were tragic and very challenging to
hear about. On 0 3 October 2023, after the trial, Mr Minnaar was convicted on

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charges of kidnapping , rape and murder. In respect of the rape and the murder
convictions , the state invoked the provisions of S 51(1) of the Criminal
Amendment Act, Act 105 of 1997 (“CLAA”) . Consequently, the mandatory l ife
imprisonment is applicable to both the convictions of rape and murder , unless
this Court find s that there are substantial and compelling circumstances ,
justifying departure from the prescribed sentence.

[2] After the conviction s, this Court ordered a pre-sentence investigation in terms of
s 286A of the Criminal Procedure Act 51 of 1977 (“the CPA”) into whether the
accused can be declared a dangerous criminal.

[3] Since the date of convictions , this matter has taken quite a while to reach this
stage of sentencing . The protracted delay in the sentencing proceedings is the
result of obtaining a report as contemplated in s 286A of the CPA and is not due
to any fault of the part ies or this Court .

[4] I need to pa use here to note the following ; an accused person in terms of s 286A
has a statutory right to have a psychiatrist of his own choosing appointed if he or
she so elects . Mr Minnaar made an election to have a private psychiatrist of his
own choice . Unfortunately, the appointment of the psychiatrist for purposes of s
286A (3) (a) (ii) proved to be a very burdensome and challenging exercise.
Particularly, for the superintended of Valkenberg hospital and the Chief Registrar
of this Division. From the ou tset, it became evident that the process entailed a
great deal of red tape.

[5] After length y back -and-forth communication between the Chief Registrar of this
Division and the Valkenberg Superintende nt, it became evident that the State
was not in a position to speedily secure the services of a private psychiatrist,
amongst others, due to bureaucrac y labyrinth. The accused finally abandoned
the request for a private psychiatrist.

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[6] I was made to understand that efforts were thwarted , inter alia, because the
Department of Justice ( the DoJ) is supposed to compile a national list of
psychiatrists in private practice that can be utili sed, for purposes of s 286A .
Apparently, the existing private psychiatrists list for the Western Cape is very old
and outdated. And some of the psychiatrists on the old list are no longer
available. Another reason I was informed of was lack of assurance of the
psychiatrist fee. As such, no private psychiatrists are willing to take the brief ,
presumably because the rate offered by the D epartment of Justice is not worth
leaving their practice for.

[7] Clearly, s 286A guarantees an accused person, particularly an indigent accused
person, an entitlement to the services of private psychiatrists at State expense. It
is quite disheartening that what is provided for by s 286A (3) (a) ( ii) has proven to
be difficult to access . Surely , the right of an accused c onferred by a statute
cannot be denied because of financial limits or bureaucratic roadblocks . So far as
sentence proceedings are concerned , s 286A can be a vital provision of the CPA .
Moreso, in light of the fact that our country is plagued by violent crimes.

[8] To accomplish the worthy and obvious objective of the Act in determining whether
an accused person can be declared as a dangerous criminal ; it is vital that the
red tape should be dealt with. Surely, the Legislature was certainly aware of the
cost implication that may be occasioned or triggered by application of s 286A (3)
(a) (ii). Such vital provision of the crim inal procedure cannot be hamstrung by
red tape and financial constraints.

[9] It is thus highly critical that the red tape around the implementation of this is
looked into with the aim of reducing it for the smooth running of the court s and
the reduction of delays.

[10] After the accused had abandoned his request for an independent psychiatrist , all
the pre -sentence reports were obtained . For purposes of these proceedings, this
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court was provided with a probation officer’s report, a clinical psychol ogist report,
a report in terms of s 286A,and five victim impact statements The defence
requested that the clinical psychologist should be called so that she could be
interrogated about her report, specifically certain statements which defense
counsel asserted were based on a misunderstanding , or were denied by the
accused.

[11] Pursuant to the convictions, this Court shall now embark on a task of imposing
sentence upon the accused. Undoubtedly, sentencing involves a monumental
and a very complex p rocess , for any presiding officer.

[12] There is a plethora of authoritive decisions in our jurisprudence which contain
useful guiding principles and proper approach to follow in order to arrive at a
fitting sentence. The parties also referred this Court to such authorities.

[13] It is settled that in the consideration of an appropriate sentence, the Court also
needs to give regard to the well -known triad of factors and the four key aims of
punishment, which are the following:

1. Retribution ;
2. Rehabilitation;
3. Preven tion; and
4. Deterrence.

[14] This court is also mindful that, whatever sentence it imposes must be blended
with a measure of mercy and compassion. Depending of course on the
circumstances. I had the benefit of considering the pre -sentence report s that had
been produced in relation to the case. The professional reports included a report
by a clinical psychologist , probation officer ’s report and the psychiatric report in
terms of s 286A. This court had the benefit of obtaining 5 victim impact
statements for sentence purposes.
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Personal circumstance

[15] The accused is a single , 29 years old and a first offender . Left school in grade 11.
He also completed a year and 6 months diploma at a college. At the time of his
arrest, he was not formally employed but was a basket ball coach for an NPO,
called Hout Bay Snipers. The probation officer notes in his report that the
accused impressed as open, well spoken and attempted to present himself as
honest even though he is still denying that he also raped S[...]. The accused ‘s
family has reported to the probation officer that the accused is a generous, loving
person and was a beacon of hope for them. According to the social worker the
accused expressed a desire to apologise to the deceased’s family.

[16] Ms Abbas, a clinical psychologist and also a member of the panel that was
constituted in terms of s 28 6A, reported in her report that the accused during
interviews with her, was evasive when answering. The report noted that the
accused became uncomfortable during discussions r egarding his relationships,
sexuality, and the offences, stating that he does not feel comfortable speaking in
front of the security guard . The report also notes that the accused expressed that
he had gender identity confusion during his high school days. The report further
indicates that the accused has not been able to truly identify with his with his
sexual orientation due to the stigma associated with this both culturally and in his
community.

[17] The clinical psychologist further states that the accused admitted to often
masturbating and becoming aroused by watching pornography that included gay
content, underage pornography as well as pornography with aggressive, non -
consensual themes. It was put to the psychologist that the accused denies that
he told h er about these preferences. It is significant to note that the
psychologist’s evidence was not challenged with evidence given under oath.
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Furthermore, it would fly in the face of reason to believe that the psychologist
would simply make up these facts. I thus accept her evidence as being truthful.

[18] The psychologist’s report also reveals that the accused started to use cigarettes
at approximately 13 years of age; admitted to the use of cannabis mandrax, tik
and joining a gang in prison.

[19] The accused also indicated to the psychologist that he lost his employment due
to abuse of alcohol. He also reported to the psychologist that he preferred to do
things at his own pace and time and did not like to take orders.

[20] The report further states tha t the accused did not provide any detailed
explanation regarding his actions on the day of the offence . According to the
psychologist, the accused reported to her that he did not realise the extent to
which he had choked the deceased. The accused also admitted he felt rejected
by S[...].

[21] The psychologist reports that the MMPI -2 profile strongly suggests that the
accused has antisocial personality traits with a history of problems with authority
figures , trouble with the law and violating social norms with no regard for the
consequences thereof. She also stated that the accused has the presence of
psych opathic and anti-social personality disorder traits and were contributing
factors to his offending . She concluded that the a ccused poses and may continue
to pose a serious ongoing threat to victims of similar victimology. She further
adds that most of the accused’s risk factors are static. Hence, she concludes that
the accused is not open to change.

[22] According to Ms Abbas , the accused was viewed as minimizing the offences for
which he has been convicted and exhibiting superficial remorse and lack of
empathy. She further stated the following in her report :

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“If Mr Minnaar is amenable to receiv ing targeted interventions durin g his
incarceration in order to address the identified dynamic risks factors , his future
risks might be mitigated on future assessment. At this point in time however, I am
of the opinion that Mr Min naar poses a danger to the physical and wellbeing of
other persons.”

[23] The panel constituted in terms of s 286A concluded as follows:

“Based on psychiatric and psychological assessment Mr Minnaar does not
demonstrate genuine remorse for the offences instead he shows d eceitfulness
and lack of empathy. He has antisocial personality traits and features of
psychopathy. These inherent personality characteristics offer a poor prognosis for
intervention and rehabilitation.

Mr Minnaar therefore represents a danger to the physical and mental well-being
of other persons and should be declared a dangerous criminal as per S 286A of
the Criminal Procedure Act, 1977.”

The nature of the offences

[24] No words are adequate to describe what you did. All the charges against the
accused stemmed from an exceptionally brutal rape and ligature strangulation
murder of S[...], a twelve -year-old boy . Gregoria Biagi testified that when you
came with S[...] to his vehicle asking for a lift to Clicks, he observed that S[...]
appeared to be stressed or anxious. It was also his observation that S[...] was
quiet throughout the trip. S[...]’s age made him completely vulnerable and
defenceless . You took advantage of him because you were a coach. You abused
the most important position of trust, that of a coach and a community leader of
children. This on its own is a highly aggravating factor. I do not believe that this
was a random act. I firmly believe that you specifically targeted S[...].

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[25] He was alone with you in an isolated area . He tried to get away from you without
success . You chased after him with determination and speed . The image from
the video footage of you chasing S[...] and him running for his life will forever
haunt some of those who watched it. One can only wonder what was going
through his mind as you were chasin g him. When he ran away , you could have
stopped . He had no chance against the fast and much old er person . You
obviously knew this as you chased , raped and killed him. The torment that S[...]
endured in your hands is unimaginable. Clearly, S[...]'s vulnerability was not only
derived from his age but also from the circumstances of the case.

[26] You were so determined to commit the offences, and nothing could stop you. You
showed no mercy to your young victim. Behind the veil of normalcy and calm lies
terror, a callous and ruthless individual, prepared to unleash extreme violence to
satisfy his depraved morals and to save himself . I had the benefit of watching you
through out the trial, you have shown no empathy for what you did, instead it was
clear that you are more concerned about your situation. I do not believe that you
care about the impact of your actions on your victims. A child was murdered
because of truly selfish r easons.

[27] By all accounts, S[...]’s killing was a deliberate, callous and calculated rape. No
child deserves to die like that. You showed no mercy on the totally innocent boy.
You showed yourself to be a monster with absolutely no regard to sanctity of
human life. S[...]’s killing has all the hallmarks of a cold premeditated murder and
rape.

[28] After S[...] did not return home from the previous night; the ensuing da ys must
have been the most appalling time for all h is family. They had no idea where he
was and no idea what had happened to him. The police and S[...]’s dad asked
you if you knew anything about h is whereabouts. You told them that you had
been with him th e previous evening but that you parted ways at the police station
and you did not know where he was. You became part of the search team. You
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outrightly denied any involvement in the murder. And y ou pretended as if you
were helping with the search, whereas you knew that the search was not for S[...]
but for his body. Those circumstances together represent seriously aggravating
features of this crime .

[29] It need hardly to be pointed out that in this matter there are no mitigating factors
and a myriad of aggravating factors. From the beginning up until now you
showed no remorse. Until today you don’t want to fully accept what you have
done. In stead, you wanted to whitewash what you did. You still remain adamant
that you did not rape S[...]. Hence, I do not believe that you will be reluctant to
reoffend.

[30] As previously mentioned, I had the benefit of victim impact statement s. I consider
it unn ecessary to refer to them in any detail. I n essence they explain, as one
would expect, the devastating effects upon every one of the loss of S[...].

[31] I am sure what happened to S[...], a talented young boy with a bright future
ahead of him shook the community to the core. What you did is socially
reprehensible. I do not think the community will ever forge t what you di d. Society
expects that justice to be carried out. The family of S[...] also cries out for justice.
Judging from the victim impact statements and the letter from S[...]’s teacher, I
can sense the terror and anguish they must have felt when they learnt about his
brutal killing. There is a long list of collateral victims you left in your wake.

What sentence to impose

[32] No amount of sentences would be enough to make up for what you have done or
ease the family pain of the horrible loss. I am sure that these proceedings are a
little consolation to the heartbroken family. What you did was heinous and it
needs to be punished to the full extent of the law. You robbed your victim of life
and by not stating what all happened between you and S[...] you robbed the
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family of possible closure. What you did is horrible and horrific to the family and
loved ones S[...] left behind .

[33] As far as an appropriate sentence is concerned, both the State and your legal
representative addressed me fully and comprehensively regarding the options
that this Court has.

It is common cause that the provisions of s 51 (1) of the CPA are applicable to both the
rape and the murder convictions .

[34] Your counsel is requesting that this Court should sentence you in terms of s 286.
in essence he agrees that you are a dangerous off ender. As such, I am satisfied
that you represent a danger to the physical or mental well -being of other persons.
Thus, the community needs to be protected against you. I firmly disagree with Mr
Brand that this court, in the circumstances, should impose a sentence in terms of
s 286 of the CPA.

[35] In this regard I fully endorse the sentiments expressed by Henn ey J, in S v
Ruiters 2024 (1) SACR 391 (WCC) (30 November 2023) , when he states the
following in paras 18 , 20 and 21:

“[18] I am therefore satisfied that the accused is a person referred to in terms of
s 286A (1) of the CPA. This court however, even if it is satisfied that an accused
represents a danger to the physical or mental well -being of other persons and
that the community should be protected against the accused, there is no
obligation to declare the accused a dangerous criminal as stated in Chavulla .

What also needs to be considered in this particular matter, is that the legislature
has deemed it appropriate to prescribe a sentence in terms of the provisions of s
51 (1) of the Criminal Law (sentencing) Amendment Act 105 of 1997 (“the CLAA”)
because both these offences falls within Part 1 of Schedule 2 in that the murder
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was planned or premeditated. The court is obliged to impose the sentence unless
it can find that there are substantial and compelling circumstances to deviate
from the prescribed sentence of life imprisonment.

[20] What is illustrated by this case is that there is a disconnect between the
provi sions of the CLAA and the provisions of S 286A of the CPA. The first
anomaly is that if a court make a declaration that a person is a dangerous
criminal in terms of S 286A(1) of the CPA, it may lead to the court imposing a
lesser sentence than life impriso nment. In order to impose a lesser sentence in
this case, which is an order declaring the accused to be a dangerous criminal,
the court has to find that there are substantial and compelling circumstances to
deviate from the most severe sentence which is li fe imprisonment.

[21] A case can hardly be made out that once a person is viewed to be a
dangerous criminal, that, that can constitute a fact for a court to conclude that
there are substantial and compelling circumstances. In fact, it should be a
consideration that militates against a finding that there are substantial and
compelling circumstances. This is a factor which the legislature has overlooked. It
failed to pay due regard to the provisions of s 286A when the provisions of the
CLAA were introd uced; the provisions of s 286A was completely ignored in the
formulation of the CLAA. I think the reason for this was because initially in 1997,
when the CLAA was enacted, it was meant to be a temporary measure.”

Conclusion

[36] For all the aforegoing reasons, I am persuaded that this Court in the
circumstances is not in a position to impose sentence in terms of s 286 of the
CPA. Additionally, I find that there are no substantial and compelling
circumstances that justify this court to deviate from the sentence prescribed in
the CLAA. This was also the theme through the submissions of the parties that
there are no substantial and compelling circumstances in this case.
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[37] Consequently, the accused is sentenced as follows:

Order :

1. Count one kidnapping : Eight years imprisonment;

2. Count two rape: Life imprisonment

3. Count three murder: Life imprisonment.

[38] The Court further orders that in terms of section 280 (2) CPA, the sentence
imposed in count one shall run concurrently with the sentences imposed in
counts two and three.

[39] Additionally, t he Court makes the following ancillary orders:

1. In terms of s 103 (1 ) of the Firearms Control Act, Act 60 of 2000, the accused is
declared unfit to possess a firearm.

2. In terms of s 120 (4) (a) of the Children’s Act, Act 38 of 2005, the ex lege order
that the accused is unfit to work with children remains in effect.

3. In ter ms of s 119 of the Children’s Act, Act 38 of 2005, the ex lege order that the
details of the accused be recorded in the National Child Protection Register,
remain in effect.

4. In terms of s 50 (1) (a) of Act 32 of 2007, the ex lege order that the name of the
accused be recorded in the National Sexual Offenders Register remain in effect.

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5. The Registrar of this Court must furnish a copy of this judgment to the Director
General of the Department of Justice. His attention is particularly drawn to
paragraphs 2-10 of this judgment.

6. The Registrar must also furnish the Department of Correctional Services (“DCS”)
with the report compiled in terms of section 286A of the CPA and the report
compiled by the clinical psyc hologist (Ms Abba). The attention of the DCS is
drawn to the recommendations [aimed at the rehabilitation of Mr Minnaar ] made
by the Clinical psychologist .

[40] Lastly, what you did to the family of S[...] was horrible , I do hope that for the
family of S[...], there is some measure of justice that has prevailed .


--------------------------------------------
NZIWENI J
JUDGE OF THE HIGH COURT