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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case number: CC67/2020

In the matter between:

THE STATE

versus

EBEN BASSON Accused 1

CHIVARGO FREDERICKS Accused 2
_________________________________________________________________

Coram : Da Silva Salie, J
Written Judgment delivered : 30 April 2025
Counsel for the State : Adv. J Ryneveld

Counsel for Accused 1 : Adv. C Viljoen
Counsel for Accused 2 : Adv. M Sebueng


OFFICE OF THE CHIEF JUSTICE
REPUBLI C OF SOUTH AFRICA
JUDGMENT DELIVERED ON WEDNESDAY, 30 APRIL 2025


DA SILVA SALIE, J

[1] This is the sentencing proceedings of the two accused before this Court for
the murder of Ms. E[...] S[...], a 7 year old child and other charges preferred against
Accused 1 and Accused 2 . This is my judgment on sentence following the
convictions handed down on 10 February 2025. No evidence was led in mitigation
or aggravation. The accused’s legal representatives made ex parte statements on
their behalf. Counsel for the State also made ex part e submissions and 5 victim
impact statements were placed before the Court deposed to by the minor brother of
the deceased, both her parents and her two grandfathers.

E[...] had been playing outside of her home in Libra Road, Ocean View when she
was shot and killed on 25 February 2020 . She collapsed outside of her home as she
was fleeing from hailing bullets which were fired from both sides of the road by you,
Mr Basson on the cul de sac side and you , Mr. Fredericks from the opposite side of
the road c/o Libra and Aquarius Roads. The Court also convicted you of attempted
murder charges (Counts 4 -7) for the attempted murder of t he target of your shooting,
Mr Anees Davis as well as 3 others whom had escaped your gunshots , namely, Mr.
Marco Simon, Mr. Michael Daniels and Mr. Oscar Daniels. In respect of count 9 and
count 10 you were both convicted of the charges in relation to the possession of an
unlicensed f irearm and unlawful possession of ammunition.

[2] Mr. Basson and Mr Fredericks , you stand before this Court today for an
appropriate sente nce to be meted out against you for the crimes you had committed
and in respect of which this Court had found you guilty.

[3] Submissions were made by your respective counsel in mitigation of sentence
which basically means that they highlighted factors which they consider as reasons
for me to impose a lesser sentence on you. Counsel for the S tate on the other hand,
as you would have heard, pointed out factors which to the State are indicative for me
to impose t he prescribed sentence of life imprisonment in respect of the murder of
E[...] and the harshest sentences for the remaining convictions.

[4] Now is the time for me to meet out an appropriate sentence for each of you. I
do so by explaining w hat goes through the mind of a presiding judge when
considering and imposing sentence.

[5] The Court in deciding upon a n appropriate sentence takes into accou nt the
triad as was set out in S v Zinn [1969] (2) SA 537 (A) which established the
fundamental pr incipl e in our law of the 3 factors which must be taken into account
when determining a just and equitable sentence. T he triad can be understood to be
like a triangle with three corners: each corner representing a specific interest in the
process of considering punishment:

[6] These three factors are:

i. The offender – that being the person who committed the criminal
offence/s in question and to that extent your pers onal circumstances
are taken into account .

ii. The crime committed – including the seriousness and nature of the
crime.

iii. Thirdly, the Court must consider the interest of s ociety and the need
to protect our communities from the type of crimes in respect of which
you had been convicted .

[7] The legislature or otherwise known as the lawmakers have recognized that
certain serious crimes must be met with a minimum or prescribed sente nce. The
count of murder in respect of which you had been convicted attracts a life sentence
in that the offence was committed by you as a group of persons or syndicate acting
in the execution or furtherance of a common purpose or conspiracy. The attempted
murder charges each attract a sentence which I consider appropriate in the
circumstances. The respective convictions of possession of an unlicensed firearm
and unlawful ammunition can warrant the imposition of a term of up to 15 years.

[8] As your counsel , Adv Viljoen and Adv Sebueng, would have informed you and
as per the caution which had been explained to you at the time you were asked to
plead to the charges which had been preferred against you, you have been informed
that the offence of murder attracts a prescribed minimum sentence of life
imprisonment if found guilty and that it becomes a mandatory sentence . This means
that the Court must meet out a life sentence as a punishment given that you had now
been convicted as charged of the murder. Similar ly the prescribed sentence applies
to the unlicensed firearm convictions. It is trite law however that only if a Court is
satisfied that substantial and compelling circumstances exist which justify the
impositi on of a lesser sentence, the Co urt may impose a lesser sentence and in this
case, sentence you to a lesser sentence than life imprisonment in respect of the
charge of murder and so too in respect of the so -called fire -arm and ammunition
convictions. Those factors must be carefully assessed and weighed into the totality
of the relevant facts of the matter. To this extent I am guided by the leading
authorities in relation to the laws on minim um sentences as were set out in the oft
quoted decisions such as S v Malgas [2001 SCA] and S v Vilikazi [2012 SCA ] In
essence these aforemention ed cases set out the principle that w hilst I am
empowered to deviate from the imposition of life imprisonment and so too the
prescribed sentence of up to 15 years in respect of the unlicensed fire arm charges, I
cannot do so for flimsy reasons and I cannot lightly depart from same. I need to be
satisfied that the imposition of such a sentence would not be dispropo rtionate in the
circumstances, and I must likewise be satisfied that the factors warranting a lesser
sentence is of such a nature that it compels and justifies the departure of the
prescribed sentence which I have referred to earlier.

[9] In the aforesa id process the Court must remain mindful of the objectives of
sentencing which are the following: retribution, deterrence, rehabilitation and
restitution . The appropriate weight to attach to each objective will differ from case
to case depending on the prevailing facts and circumstances of each matter.
Retribution is as per the meaning of the word: to impose a punishment as a pen alty
for the wrong you ha d commi tted. Deterr ence which is also an objective of
sentencing, serves not only to deter you from repeating unlawful behavior but also
deters other would -be offenders. Rehabilitation is the appreciation and recognition
that you as wrongdoers can repent and reform your con duct and strive to become
law abiding citizens in the future as responsible members of society. Lastly,
restitution is aimed to protect our community from you and harmful and unlawful
actions being perpetuated against our community . Mercy is an important
consideration in the course of determining an appropriate punishment. I pause to
add that a sentencing Court must also guard against h anding down punishment in
anger.

[10] I will now apply the aforesaid discussion of the various legal principles to the
facts and circumstances of this matter and explain how and why I impose the
sentence upon you to which I have come.

YOUR PERSONAL CIRCUMSTANCES:

[11] Accused number 1, Mr. Basson , I will start with you first. Your counsel
addressed me in respect of your personal circumstance s in so doing submitted those
factors which I need to keep in mind to arrive at a proportionate and just sentence.
In other words, these are facts which justify a lesser sentence and in particular for
me to deviate from the prescribed sentences which I have discussed above. I have
considered that you hav e been raise d in an area rife with hardships and
gangsterism . When you committed the se offences on 25 February 2020, you were
still relatively young, and today, at the age of 31 you still have a measure of
youthfulness on your side. You appear before this Court for se ntencing as a first
offender. You have been in custody since February 2020 pending finalization of
these proceedings, tha t being a perio d to date of approximat ely 5 years. During this
time, your partner, Ms. Tammy Mostert who was pregnant at the time of the
commission of these crimes had given birth to your daughter whilst you had been in
custody. Ms Mostert, who testified before this Court, is the primary care r of your
daughter and is gainfully employed.

[12] Accused number 2, Mr. Fredericks, you hail from a similar background as that
of your co -accused, y ou have no previous convictions and thus stand before this
Court as a first offender. Born in 2000 , you were almost 20 at the time of the offence
and 5 years later, you are now 25 . You are by all accounts still a young man. Like
that of Mr. Basson , the C ourt considers that you have been in custody for a period of
approximately 5 years from the date of your arrest pending the finalization of this
matter.

[13] I have also considered the pre-sentencing reports prepared recently dated 31
March 2025 by the Department of Social Development for each of you after
consultation conducted with you and with certain of your family members or collateral
sources of information. I need not repeat the contents thereof , same have been
noted and taken into account particularly so where it relates to your personal
circumstances and other relevant considerations as set out therein. It is significant
that neither of you ha ve displayed remorse for the crimes you have committed . Had
you expressed any contrition for yo ur actions, I would have taken that into account
as a mitigatory factor and to impose a lesser sentence. However, you did not do so
and in fact no such submission had been placed before the Court on your behalf.
Mr. Basson, in your case, t his is evidently so as you stood by your position that you
are a victim of a manipulated justice system, and that you have no sympathy for your
victim, the late 7 year old E[...], nor her family and their grief and that in fact you are
suffering as the victim . The position in this regard is similar for you, Mr. Fredericks,
who has not displayed any remorse or sympathy for the family of E[...] who had l ost
their child and sister. I hasten to add that had either of you displayed genuine
remorse for the crimes and loss of life you had caused it could have been considered
as a factor in m itigat ion of your sentence, however the converse does not apply.
Your lack of remorse or refusal to take accountability for your unlawful actions and its
conseque nces does not amount to an aggravating factor in the imposition of an
appropriate sentence . In other words, your sentence cannot be increased for lack of
remorse or accountability.

NATURE OF THE CRIME:

[14] Turning to the crimes which you have committed, it is a starkly and shocking
feature of the offences that it had been committed in a place and space which ought
to be a safe area for the residents, being their home and play area. These children
and the ad ults on that fateful day were going about their daily affairs. E[...] was just
an innocent child, who played with other children after school and before preparing
for bathtime, dinner and bed. The facts of this matter illustrate that you were not only
indifferent to their presence, but I consider it significant that these children were not
one of your own so to speak. The facts accepted by this Court are that they were
children of the road and the shooting did not risk any of your children or loved ones.
The chance that any one of them could get harmed or killed was a factor clearly
prevailed in your minds when you decided to launch this lethal and brazen attack.
An injury or death of these children, albei t they were not the main target, would in
any event facilitate the rival warfare between your gang and that of the territorial
gang as the residents would be less tolerant of the presence of the Taylor Gang in
this area thereafter . It is quite evident that you were alive to this. It is a most
disturbing feature of this offences that it was done with this children caught in the
middle of these gunshots, with these young and vulnerable children having to run for
protection. E[...] was shot in her back as she ran to the safety of her home and that
of her mother. The bullet exited through her chest and another gunshot hit her hand.
She fell to the ground in her garden. She was playing with her friends in an area
which you decided to make your shooting range and battlefield. An act which lacks
and defies basic humanity.

[15] The photographs also depict what her loved ones had to face and must come
to terms with : that being her body l ying fatally wounded on the ground, blood oozing
from her young and lifeless body . You both had time to reconsider and reflect on
what you had planned to do that day . You had time to refrain from your conduct. You
saw the children playing in the road. Even during the shooting, you had time to stop
and hold your fire. Yet, you mercilessly continued to rain bullets over these children.

[16] This Court heard and read the sentiments which E[...]’s brother (10 years old
at the time of her passing , now 15 ) had endured with her death. He suffers daily,
haunted by flashbacks, missing his sister and robbed of the joy of having his sister
grow up and old with him and their other sibling. E[...] had an infectious laugh he
stated, she had unwavering kindness, and she had shone a light to their family. The
grief and loss stated by her mother, her father, both her grandfathers g ave this Court
a very clear indication of the loss they have suffe red and how they continue to mourn
her death and the cruel manner in which she has been executed. This family remain
in anguish and anxiety and they continue to experience immeasurable pain as they
come to live without E[...] and cope with her savage murder . They have to accept
that their child had been brutally robbed of her life and dreams. She had a flair for
fashio n and beauty, she had dreams of being a beautician, she showed the talent for
being a successful businesswomen in the beauty and fashion industry. She also did
not get to fulfil her other wishes, having a family and children of her own. This family
and the community’s star had fallen. Your unlawful conduct has caused them a
permanent loss with this traum atic event and consequences continuing to haunt
them and the community. This is indeed aggravating in the determination of an
appropriate sentence. The emotional devastation caused to this child’s parents,
grandparents, siblings and communit y is glaring and devastating. The collective
trauma inflicted on the community, particularly where children can no longer feel safe
is aggravating. The shooting of a child, particularly in a publi c place in broad
daylight, reflects extreme callousness and cruelness on your part with complete
disregard for the sanctity of life. Gang related shootings are also an aggravating
circumstance as it endangers the public and undermines the rule of law. The crime
does not only kill an innocent child but also instills ongoing fear and terror in the
community, making ordinary life unsafe.

[17] This crime represents one of the most disturbing and devastating acts of
violence to come before it. A seven -year-old child, innocent, unarmed and engaged
in the most ordinary of childhood pursuits, playing outside after school. She was
entirely incapable of protecting herself . H er death , under such a violent
circumstance , is an egregious breach of her rig ht to life, safety and dignity. This
space in the cul de sac, with blocks marked to facilitate their ball games and playing ,
should be considered a space which is sacrosanct , particularly for the children. The
use of semi -automatic firearms in a densely p opulated street further compounds the
complete disregard of your vicious acts. Gang related shootings for drug and turf
control amounts to domestic terrorism in its most destructive form, shattering famil ies
and robbing communities of a peaceful life in t heir residential areas and hope for a
better future. The lives of those who have been affected have been irreversibly
altered. The grief they carry, the trauma experienced, and the psychological scars
inflicted on them as set out in the Victim Impact Stat ements by her loved ones are
relevant in this consideration of an appropriate sentence along with other factors.

THE INTEREST OF SOCIETY

[18] Society demands that brutal murder s such as these must be dealt with very
seriously . These sentiments also apply to the possession of unlicensed firearms and
unlawful possession of firearms which causes the continued spiral of our country to
greater depths of violence and crime . The C ourt has a duty to protect innocent
people fr om being murder ed by imposing long term prison sentences. Failing that ,
the community will l ose faith in the C ourts and our country’s judicial system. This
event is tragic to say the least and yet it has become a common occurrence in our
communities.

[19] The broader community impact cannot be ignored. The evidence before this
Court is that the residents of this area have been left reeling, fearful and angry.
Children are no longer safe to play in their own streets. It is the Court’s duty to
signal, through sentencing , that such conduct will be met with the full weight of the
law.

FINAL ANALYSIS :

[20] From the discussion above, the factors submitted to be sufficient to justify a
departure from the prescribed sentence of life imprisonment must be considered
collectively and not in isolation. I need to weigh this against each other to consider
what would be a just and appropriate sentence. R elative youth, being a first offender
and incarceration time when dealing with a life sentence is not a guaranteed factor to
amount to a substantial and compelling circumstance warranting a deviation from a
life sentence.

[21] Whilst it was argued on behalf of counsel that the accused both illustrate
relative youth , it was not the case that evidence had been placed before me that
your background, level of intelligence and mental capacity was of such a nature that
your respective ages can be suggestive of reduced blameworthiness. In S v Matyityi
[2011 (1) SACR 40 (SCA) at para 11 the Court held that:

“This whilst someone under the age of 18 years is to be regarded as naturally
immature, the same does not hold true for an adult. In my view a person of
20 years of more must show by acceptable ev idence that he was immature to
such an extent that his immaturity can operate as a mitigating factor.”

[22] The evidence of this case illustrates to the contrary that both accused had
capably planned the ambush, with a well -orchestrated plan and ambush at tack
tactics, illustrating your advance intellect and intuitiveness , capacity to have insight
and foresight. There is certainly no lack of maturity in t hose actions.

[23] As regards the time spent in custody, the test is not whether on its own the
period of detention constitute a substantial and compelling circumstance to depart
from the life sentence but rather whether the sentence proposed by the State (that
being the imposition of the prescribed sentence of life) is proportionate to the crimes
committed. It is trite law that pre -sentencing incarceration is but one of the factors to
take into consideration when determin ing the existence of circumstances which are
substantial and compelling to deviate from a l ife sentence. A Court cannot approach
a factor submitted as a mitigating factor such as time spent in custody on a
piecemeal basis to consider departure nor is deducting the period from the proposed
sentence permissible as a standalone factor . In S v Kammies [2019] ZAECPEHC 86
paras 34 – 49 this approach presents conceptual difficulty when life imprisonment is
the prescribed sentence . There is no rational way in which to take the pre -
sentencing detention into account . The answer is not a mere ca lculation by
deducting the incarceration time from a life sentence. These factors though need be
considered as a whole.

[24] As regards both accused standing before this Court as first offenders, I need
emphasis e that Section 51(1) unlike Section 51(2) d oes not differentiate between
first and multiple or repeat offenders. Th e fact that the accused is a first offender
may, in combination with other factors, lead a Court to the conclusion that the
prescribed sentence of life would be disproportionate however this factor must be
considered cumulatively and holistically with all prevailing factors and evidence.

[25] The aggravating features of this offe nce hardly need to be emphasized.
Notwithstanding the fact that no evidence had been placed before me that the
accused at 25 years (Accused 1) and 19 and 11 months (Accused 2) lacked
maturity, I am though satisfied that together with other mitigatory factors such as
time awaiting trial and being a first offender would make a life sentence for the
murder disproportionate and that a sentence of 2 2 years would be just and equitabl e.
In my considered view the four (4) attempted murder charges warrant a sentence of
5 years each to run concurrently . The conviction s in respect of possession of the
unlicensed firearm and unlawful possession of ammunition warrant the imposition of
a sentence of 8 and 3 years each, both sentences to run concurrently with each
other .

CONCLUSION:

[26] I thus impose the following sente nce upon both accused 1 and 2 :

(a) Count 3 – murder:

The accused is sentenced to 22 years direct imprisonment.

(b) Count s 4 to 7 – attempted murder:

The accused is sentenced to 5 years direct imprisonment ordered to run
concurrently.

(c) Count 9 and 10 – Possession of an unlicensed firearm and unlawful
possession of ammunition :

The accused is sentenced to 8 years in respect of count 9 and 3 years in
respect of count 10. The sentence s in respect of count 9 and 10 are
ordered to run concurrently , resulting in an effective 8 years ’ imprisonment
for both these counts.

(d) It is further ordered that the sentences in respect of count 3 shall run
consecutively with the sentences imposed in respect of counts 4 -7 and 9
and 10 resulting in an effective peri od of 35 years direct imprisonment.

(e) In terms of section 103(1) of the Firearms Control Act 60 of 2000 both
accused are declared unfit to possess a firearm.


____________________ _________
DA SILVA SALIE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE