IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A185/2023
In the matter between:
BRADLEY SAMUELS Appellant
and
THE STATE Respondent
Coram: Thulare J, et Van Leeve, AJ
Heard on : 21 February 202 5
Delivered on: 28 March 2025
JUDGMENT
VAN LEEVE, AJ
[1] This is an Appeal in respect of a sentence handed down by the learned Magistrate
of Somerset West on 7 April 2019.
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FACTS
[2] On 7 April 2019 , the Appellant was convicted on two counts of murder in terms of
section 77 of the Child Justice Act 75 of 2008.
[3] The Appellant was sentenced to 10 years direct imprisonment in relation to each
count. It was further ordered by the learned Magistrate that 5 years of the sentence
in count 1 will run concurrently with the ten year sentence in count 2.
[4] At the time of the commission of the offences , the accused was a juvenile to wit
15 years old and as a result the minimum sentences Act did not apply.
[5] Section 77(3) of the Child Justice Act 75 of 2008 provides :
“A child who is 14 years as older at the time of being sentenced for the offence, and in
relation to which subse ction 2 does not apply, may only be sentenced to imprisonment if
the child is convicted of an offence referred to in (a) Schedule 3 .”
[6] Section 77 (4) stipulates :
“That a child referred to in subsection (3) may only be sentenced to a period of
imprisonment not exceeding 25 years. ”
[7] The Appellant was sentenced to an effective 15 years imprisonment.
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[8] Counsel for the Appellant argued that the 15 years sentence imposed by the
learned Magistrate is grossly disproportionate to the offence commi tted.
CIRCUMSTANCES UNDER WHICH THE MURDERS TOOK PLACE
[9] On 1 October 2017 , in Sir Lowry’s Pass, the accused approached the deceased
pursuing an argument. The accused was armed with a knife. The deceased did
not want to get involved in any altercation with the accused. The accused then
launched an unprovoked attack on the deceased, stabbing him in the chest and
he died as a consequence of the stab wound.
[10] The deceased was unarmed at the time.
[11] The accused was arrested and released into the care of his family in Macassar.
Three months later, the accused called the deceased in count two, Franco Arendse
who was standing with friends at the corner shop. When Franco Arendse
approached the accused, the accused armed with a knife , stabbed Franco
Arendse who died as a result of the stab wound.
[12] Counsel for the applicant argued that the applicant is a youthful offender and whilst
in Bonnytoun, awaiting finalisation of the matter, he attended various programmes
that indicates that the accused can rehabilitate. Whilst the State argued that the
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only consideration is whether the learned Magistrate had erred in imposing the
sentence that she did.
[12] It is apparent from the arguments presented by the applicant’s counsel that the
Magistrate cannot be faulted procedurally with the manner in which she dealt with
the sentence, save for the fact that counsel for the Appellant believes the sentence
to be excessive.
[13] The accused’s personal circumstances are as follo ws:
(a) The accused is the middle child of five children
(b) His home life was unstable
(c) He was exposed to domestic violence
[14] As a result of the ongoing domestic violence, the accused’s mother stabbed his
father to death when the accused was two years old. Since the age of fifteen, the
accused abused substances such as alcohol and dagga. The accused resides in
an area which is poverty stricken and crime is rife. Crime and poverty goes hand
in hand and flourishes in such an environment.
[15] The question is whether the sentence imposed by the learned Magistrate is
shockingly disproportionate to the offences.
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[16] Both these young men were in the prime of their lives and lost their lives for no
apparent reason. Disproportionality must be dete rmined by the unique
circumstances of every case.
[17] The circumstances of this matter are that 2 people lost their lives as a result of the
accused actions and it can hardly be said that the sentence of 15 years is
disproportionate.
[18] It is trite that sentence is a discretionary function of the trial court and a court of
appeal will only inter fere with this discretion if there is an irregularity that results in
an infringement of rights of the Appellant.
[19] Since there was no irregularity that occurred , the court finds that the sentence is
not disproportionate to the crime.
[20] I would order that the Appeal is dismissed.
THULARE, J
[21] I have read the judgment of Van Leeve AJ and agree with her order dismissing the
appeal. There are just a few comments both on the facts and on the law that I
deem necessary for consideration of the matter. Firstly, the appellant pleaded
guilty to both counts. The matter went to trial after t he magistrate noted a plea of
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not guilty on his behalf because the State did not agree with the facts set out upon
which the appellant based his pleas on both counts. The appellant was convicted
on 7 March 2019 after 5 State witnesses and 3 witnesses in de fence inclusive of
the appellant, testified. When the appellant was sentenced on 19 March 2019, the
sentence was antedated to 22 January 2018.
[22] The matter went on what is normally called an automatic review before a single
judge. The proceedings app eared to the Judge to be in accordance with justice in
May 2019. In the meantime, the appellant had instructed his legal representatives
at Legal Aid South Africa (LASA) of his intention to use his automatic right of appeal
to appeal against both convictio n and sentence and the papers were accordingly
filed on 1 April 2019 for the enrolment of his application. Although the notice and
request for enrolment referred to an appeal against conviction and sentence, the
application for leave to appeal filed only r eferred to leave to appeal the sentence
of 10 years imprisonment on each of the two counts of murder only. Covid 19
restrictions as well as the transfer of the appellant to a different juvenile prison
caused a delay, with the result that the application fo r leave to appeal was only
heard in April 2022. It was accompanied by an application for condonation for the
late filing. From my reading of the judgment, the fact that the matter had already
been before a Judge of the High Court which had considered the f acts and
sentence imposed, and the outcome of that review, weighed very heavy in the
mind of the magistrate, in holding that the appellant had no prospects of success
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on appeal. The application was dismissed. Although there was no reference at all
thereto, one accepts that the application for condonation was granted.
{23] The appellant enjoyed a right of appeal without first having obtained leave as
envisaged in section 309(1)(a) of the Criminal Procedure Act, 1977 (Act No. 51 of
1977) (the CPA) read with section 84 of the Child Justice Act, 2008 (Act No. 75 of
2008) (the CPA). The judgment of the magistrate on the application for leave to
appeal did not at all refer to these provisions. As indicated appellant applied for
leave and in his application specif ically drew the attention of the State and the
magistrate that he was exercising his automatic right of appeal. It can’t be said that
the attention of the magistrate was not drawn by the appellant to the provisions of
the law on this question. The failure of the magistrate to accord the appellant his
automatic right, and instead refusing it, caused the appellant to approach the
Judge President of the Division on petition. On 2 June 2023 two Judges of the
Division reviewed and set aside the decision of the m agistrate to refuse the
appellant leave to appeal against the sentence. The further delays in the hearing
of the appeal related more to the provision of a full record of proceedings which
were before the magistrate. Condonation for the late filing of the appeal was
granted at the hearing of the matter before us.
[24] The appellant was a first offender. He was arrested on 22 January 2018 and had
been in custody since. He was 15 years old at the time of the commission of the
offences. He lived with his pare nts in Sir Lowry’s Park in a two -bedroom wendy -
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house. The area was characterised by poverty and crime. The appellant’s father
passed away. He was stabbed to death by the mother during an episode of
domestic violence which characterised their 7 -year marriag e. This happened when
the appellant was only 2 years old. His mother was employed. The mother was in
a relationship with another person. The appellant had three sisters two of whom
were still minors and dependent whilst the elder sister and brother were
independent. The appellant completed primary education. At the time of his arrest
and detention he was in grade 8 in a Secondary school. He continued with his
education at the Child and Youth Care Centre where he was detained. He was
reported to be disciplin ed and completed the tasks given.
[25] The CJA sets out the objectives to sentencing a child, which are different to that of
an adult.1 See also S v KD 2021 (1) SACR 675 (WCC) at para 10 and 11. When
considering imprisonment, there are further factors t hat a court should take into
account.2 It is against the background of the objectives and factors to be
1 69 Objectives of sentencing and factors to be considered
(1) In addition to any other considerations relating to sentencing, the objectives of sentencing in terms of this Act are
to-
(a) encourage the child to understand the implications of and be accountable for the harm caused;
(b) promote an individualised response which strikes a balance between the circumstances of the child, the nature
of the offence and the interests of society;
(c) promote the reintegration of the child into th e family and community;
(d) ensure that any necessary supervision, guidance, treatment or services which form part of the sentence assist
the child in the process of reintegration; and
(e) use imprisonment only as a measure of last resort and onl y for the shortest appropriate period of time.
2 Section 69 (4) When considering the imposition of a sentence involving imprisonment in terms of section 77, the
child justice court must take the following factors into account:
(a) The seriousness of the offence, with due regard to -
(i) the amount of harm done or risked through the offence; and
(ii) the culpability of the child in causing or risking the harm;
(b) the protection of the community;
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considered that a child justice court must approach a sentence of imprisonment
for a child.3 To meet the objectives as set out in section 69(1) of the CJA, amongst
other pre -sentence reports, the court should know the vulnerabilities of the child
including the educational vulnerability of the child before and at the time that the
offence was comm itted. The individualised response required for the sentencing
of a child means that a child with academic learning barriers cannot be approached
the same way as a child with advanced cognitive abilities. The ability of a child to
stay focused on tasks, to recall information, to think through problems and to
resolve them and to process information relate to mental processes and skills.
(c) the severity of the impact of the offence on the victim;
(d) the previous failure of the child to respond to non -residential alternatives, if applicable; and
(e) the desirability of keeping the child out of prison.
3 77 Sentence of imprisonment
(1) A child justice court -
(a) may not impose a sentence of imprisonment on a child who is under the age of 14 years at the time of being
sentenced for the offence; and
(b) when sentencing a child who is 14 years or older at the time of being sentenced for the offence, mus t only do
so as a measure of last resort and for the shortest appropriate period of time.
(2) ......
[Sub -s. (2) deleted by s. 4 (a) of Act 14 of 2014 (wef 19 May 2014).]
(3) A child who is 1 4 years or older at the time of being sentenced for the offence may only be sentenced to
imprisonment, if the child is convicted of an offence referred to in -
(a) Schedule 3;
(b) Schedule 2, if substantial and compelling reasons exist for imposing a sentence of imprisonment;
(c) Schedule 1, if the child has a record of relevant previous convictions and substantial and compelling reasons
exist for imposing a sentence of imprisonment.
[Sub -s. (3) substituted by s. 4 (b) of Act 14 of 2014 (wef 19 May 2014).]
(4) A child referred to in subsection (3) may be sentenced to a sentence of imprisonment -
(a) for a period not exceeding 25 years; or
(b) envisaged in section 2 76 (1) (i) of the Criminal Procedure Act.
[Sub -s. (4) substituted by s. 4 (c) of Act 14 of 2014 (wef 19 May 2014).]
(5) A child justice court imposing a sentence of imprisonment must take int o account the number of days that the
child has spent in prison or a child and youth care centre prior to the sentence being imposed.
[Sub -s. (5) substituted by s. 4 (d) of Act 14 of 2014 (wef 19 May 2014).]
(6) In compliance with the Republic's international obligations, no law, or sentence of imprisonment imposed on a
child, including a sentence of imprisonment for life, may, directly or indirectly, deny, restrict or limit the possibility
of earlier release of a child sentenced to any term of imprisonment.
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[26] The court that sentenced the appellant did not have the benefit of such information,
some of which may be readily a vailable in his learner profile at the schools which
he attended. It is unknown whether the appellant presented problems identified
earlier by educators, including an education psychologist’s or other expert report
on him. On a simple age scale the appella nt is about a class or two behind. It
remains unknown whether he started school after the age of 7 or whether he
struggled in one or more classes. To hold the child to account as envisaged in
section 69(1)(a), it must be established that the child has the inherent and
necessary faculties to account. The understanding and accountability of the child
calls for some reports on the cognitive skills of the child. Section 69(1)(a) and (b)
means that resources like the school profile of a learner was a necessary s ource
of information to assist the court in its assessment. Section 69(1)(a) and (b) calls
for more than a psycho -social report. Subsections (a) and (b) reports must
establish that the child was able to understand and to account, in the context of
being ab le to process receipt and giving of systemic instructions, such that one is
able to weigh his conduct in relation to enlightened experiences. A psycho -social
report, generally provided by social workers or probation officers, is required by
section 69(1) ( c) and (d) of the CJA and does not meet the demands of section
69(1)(a) and (b). All the factors mentioned in section 69(4) points to a period of
imprisonment being the appropriate sentence. The appellant accepted this fate.
He only took issue with the per iod.
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[27] The sentencing court already pronounced that the appellant’s sentence started
running from the day of his arrest, 22 January 2018. In other words, as at the date
of his sentence, one year and two months of the sentence were already considered
served. The trial court had applied section 77(5) of the CJA to the sentence. The
appellant was a member of a criminal gang, known as the JCY. On 01 October
2017 the appellant approached the deceased who was standing at a tuckshop with
friends in Lowry’s P ass. The appellant confronted the deceased, accusing the
deceased that with others, the deceased had thrown objects at the appellant’s
uncle’s house and broken windows. The deceased was near a tuckshop. The
appellant drew out a knife from his pocket, point ed it at the deceased and stabbed
the deceased, Ronaldo, once on his left chest, and fled. It was one fatal stab that
penetrated the heart. After the incident the appellant was arrested. Amongst the
other interventions pending the trial, the appellant was moved from Sir Lowry’s
Pass to Macassar. In a space of three months, on 22 January 2018 at Macassar,
the appellant approached a mobile shop and called Franco, the deceased in the
second murder charge. Franco went to the appellant, and the appellant, withou t
saying anything, stabbed Franco once on his chest with a knife. The appellant had
the knife hidden in his long sleeves. After the fatal stab which also penetrated the
heart, the appellant ran, and was later that same day arrested, and detained until
his sentencing.
[28] Violent gang killings, by young men especially on other young men, are very
prevalent in the Western Cape, especially in the townships and shack settlements
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around the City of Cape Town. It is well -known that the prison gangs, or the nu mber
gangs as they are called locally, influenced the street, or name gangs, including in
the ranking or ‘magunya’ as it is commonly referred to. In other words, the killing
of another has the potential to earn one an advancement in the street gang or even
prison gang ranking, like a promotion. It is the environment in which the appellant
grew, and it is what one discerns from the probation officer’s report when it is said
that he grew up in an environment characterised by serious violent crime. It is
among st others this observation that makes it necessary for the courts to know the
educational response of a child. Unless the courts intervened, it mat be that instead
of diverting children with learning barriers to vocational and skills based technical
educat ion to produce the artisans that this country so dearly needed especially to
prop-up service delivery in local government, these children were simply frustrated
in preference of academic matric, and the gang culture offered them confidence
and a sense of b elonging, and a feeling that their lives matter. It seems that unless
there was serious intervention in the life of the appellant, the likelihood was that he
would be lost to violent criminal gangs.
[29] From the facts, the work of the Commissioner for C orrectional Services was
already carved out. The battle for the mind of the appellant was the priority. The
appellant was a person who clearly needed to undergo a paradigm shift. A serious
change of mindset. Very little is known about him as a person as re gards what
informed his response to systematic instruction, as I have indicated. School
children learn and compete about human rights in academic programmes. It can’t
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be said that the appellant did not know about the sanctity of life, at grade 8. His
age p ales into insignificance if one had regard to what he was convicted of, and
the circumstances under which the offence was committed. Other than to instil fear
of his person and his gang, the JCY, in the communities of Sir Lowry’s Pass and
Macassar, it is d ifficult to understand how a 15 -year-old could do what he was up
to, not only once but twice within a short space of time. Except for the selfish sense
of self -esteem and gang importance, the killings were senseless and foolish. They
reflected a lack of co mmon sense and were without a discernible meaning, except
in the gang culture. The appellant needed a proper case management assessment
for correction and sufficient time to put him through rehabilitative programmes
within a correctional facility. In Centr e for Child Law v DPP (JHB) and Others 2022
(2) SACR 629 (CC) it was said at para 45 to 47:
“[45] The UNCRC has also written that the best -interests -of-the-child principle is
an adaptable and flexible concept, which shall be applied in all matters dealing
with the child. Furthermore, the expression as worded in the CRC 'means the
child's best interests may not be considered on the same level as all other
considerations', but above all other considerations. In other words, viewing the
best interests of the child as a primary consideration means that the (best) interests
of the child are given priority in all circumstances. This strong position, the UNCRC
writes, 'is justified by the special situation of the child: dependency, maturity, legal
status and, ofte n, voicelessness'.
[46] The UNCRC has said that 'the full application of the concept of the child's best
interests requires the development of a rights -based approach . . . to secure . . .
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[the child's] human dignity'. Furthermore, it has been said that this principle is a
threefold concept — a substantive right, a fundamental, interpretive legal
principle, and a rule of procedure. Regarding the first ambit, it means that the
child's best interests must be considered and weighed against all other factors in
all matters dealing with the child, whenever a decision is being made about the
child. With respect to the second ambit, it means that, when interpreting legal
provisions, we must do so in the light of what is in the best interests of the
child. Finally , concerning the third ambit, it means that the decision -making
processes must consider the impact of such decisions on the child and that the
'justification of a decision must show that the right has been explicitly taken into
account'.
[47] The UNCRC h as also said that the best interests of the child must be
appropriately integrated and consistently applied in judicial proceedings that
impact the child. Moreover, judicial decisions must show that a child's best
interests have been a primary consideratio n. And, of relevance to the matter at
hand, the UNCRC has also underlined that 'protecting the child's best interests
means that the traditional objectives of criminal justice, such as repression or
retribution, must give way to rehabilitation . . . when d ealing with child offenders'.
I am unable to hold that the sentences were disproportionate to the offence.4 The
sentences were not excessive.5 The trial court ordered that half of the sentence in
count 1 should run concurrently with the sentence on count 2. The sentences were
4 S v Dodo 2001 (3) SA 382 (CC) para 38; Maphala v S [174/2017) [2018] ZASCA 08 (01 March 2018) para 26.
5 S v Scott -Crossley 2008 (1) SACR 223 (SCA)
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appropriate and served a legitimate purpose. For these reasons I agree with Van
Leeve AJ.
………………………………………..
A VAN LEEVE
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
…………………………………………
DM THULARE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Appellant : Adv L Adams
Instructed by: Legal Aid South Africa
For the Respondent : Adv. E Cecil
Instructed by: National Director of Public Prosecution