IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: A13/2026
Case number (Regional Court): SWS 21/2023
JASON DE BRUYN Appellant
and
THE STATE Respondent
Coram: Nziweni, J et Van Zyl, AJ
Heard on: 24 April 2026
Judgment: 13 May 2026
Summary: Appellant convicted in the regional court of murder and defeating the
ends of justice – sentenced to 25 years’ imprisonment in respect of murder, plus two
years’ imprisonment in respect of defeating the end of justice – whether regional
court misdirected itself in imposing 25 years’ direct imprisonment in respect of
murder conviction – deviation from prescribed minimum sentence for murder –
regional court deviated upon considering the relevant circumstances – no further
deviation appropriate on the fact – appeal dismissed
___________________________________________________________________
ORDER
The appeal is dismissed.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. In August 2014 Mr Edmere Chinzete was hit on the head with a hammer, and
stabbed repeatedly.1 His body was pushed out of a car and over a wall on
the R44 coastal road near Gordon’s Bay. It was discovered by a traffic officer
two weeks later.
2. The appellant was a rrested in 2022. The charge sheet alleged that the
appellant had unlawfully and intentionally killed Mr Chinzete by hitting him
with a hammer . It was further alleged th at the appellant had defeated the
ends of justice by destroying the evidence implicating him, namely by
washing and cleaning the car used in the commission of the murder.
3. On 29 January 2024 the appellant 2 was convicted in the Somerset West
Regional Court of murder, read with the provisions of section 51 (1) of the
Criminal Law Amendment Act 105 of 1997 (the CLAA (the so-called minimum
sentence legislation) ), and defeating the ends of justice. The conviction
followed a plea of guilty in terms of section 112 (2) of the Criminal Procedure
Act 51 of 1977 (the CPA). The appellant was legally represented at the time.
4. On 29 April 2024, he was sentenced to 25 years ’ direct imprisonment on the
murder conviction. In respect of the conviction on the charge of defeating the
end of justice , he was sentenced to two years direct ’ imprisonment, which
was wholly suspended for a period of five years.
1 The pathologist’s report indicates extensive injuries.
2 The appellant was Accused 3. The State relied on the doctrine of common purpose.
5. This is an appeal against the sentence of 25 years’ direct imprisonment
imposed in respect of the murder conviction . The appellant is currently in
custody, and leave to appeal was granted upon petition.
This Court’s approach on appeal against sentence
6. The test on appeal in relation to sentence is “ whether the court a quo
misdirected itself by the sentence imposed or if there is a disparity between
the sentence of the trial court and the sentence which the Appellate Court
would have imposed had it been the trial court that it so marked that it can
properly be described as shockingly, startling or disturbingly inappropriate”.3
7. Sentencing is about achieving the right balance between the crime, the
offender and the interests of the community .4 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 the
others.5
8. The question is essentially whether, on a consideration of the particular facts
of the case, the sentence imposed is proportionate to the offence, with
reference to the nature of the office, the interests of society and the
circumstances of the offender.
9. In S v Pillay 6 the appellate division (as it then was) held that the word
“misdirection” simply means an error committed by the court in determining or
applying the facts for assessing the appropriate sentence. As the essential
enquiry on appeal against sentence is not whether the sentence was right or
wrong, but whether the court that imposed it exercised its discretion properly
and judicially, a mere misdirection is not by itself sufficient to entitle the
3 S v Van de Venter 2011 (1) SACR 238 (SCA) para 14.
4 S v Zinn 1969 (2) SA 537 (A) at 540G-H.
5 S v Banda 1991 (2) SA 352 (BG) at 355A.
6 1977 (4) SA 531 (A) at 535E-F.
appeal court to interfere with the sentence. The misdirection must be of such
a nature, degree or seriousness that it shows, directly or inferentially, that the
court did not exercise its discretion at all or exercised it improperly or
unreasonably. Such a misdirection is usually and conveniently termed one
that vitiates the court’s discretion on sentence.
10. Where prescribed minimum sentences are concerned, this Court must have
regard to what was stated in S v Malgas: 7 the Supreme Court of Appeal
provided guidelines to be followed in determining whether substantial and
compelling circumstances exist that justify departure from the prescribed
sentence.
11. Courts are required to approach the imposition of sentence conscious that
the legislature has ordained life imprisonment as the sentence that should
ordinarily and in the absence of weighty justification be imposed for certain
crimes. 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.
12. The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation, and marginal differences in
personal circumstances or degrees of participation between co -offenders are
to be excluded. All factors traditionally taken into account in sentencing
continue to play a role. None is excluded at the outset from consideration in
the sentencing process.
13. The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick (“substantial and compelling”) and
must be such as would cumulatively justify a departure from the standardised
response that the legislature has ordained.
7 2001 (1) SACR 469 (SCA) para 25.
14. Substantial and compelling circumstances need not be exceptional in the
sense that they are rare or seldom encountered, nor are they limited to
factors which diminish the moral guilt of the accused. As discussed in S v
Malgas, the essential issue is whether the sentence imposed is proportional
having regard the triad in S v Zinn.
15. It is against this background that the appellant’s case is considered.
The grounds of appeal
16. Under section 51(1) of the CLAA, “ a regional court or a High Court shall
sentence a person it has convicted of an offence referred to in Part I of
Schedule 2 to imprisonment for life” . Schedule 2, Part 1 of the CLAA
includes the offence of murder, when (amongst other circumstances) it was
“committed by a person, group of persons or syndicate acting in the
execution or furtherance of a common purpose or conspiracy ”, as in the
present matter.
17. The regional court deviated from the prescribed minimum sentence of life
imprisonment upon finding that substantial and compelling circumstances
existed to do so – hence the 25-year sentence on the murder conviction.
18. The appellant nevertheless contends that the sentence of 25 years’ direct
imprisonment is vitiated by multiple misdirections that collectively produced a
sentence that is disproportionate, unjust, and inconsistent with the values of
dignity, proportionality and rehabilitation that must underpin every sentencing
exercise in South Africa's constitutional democracy. These misdirections
included the following:
18.1 Failure properly to consider the probation officer's report which
detailed, in particular, the appellant’s childhood sexual abuse at the
hands of his cousin’s wife (Accused 1) , and the influence of his
domineering father. The appellant submits that the regional court's
engagement with the contents of this report was superficial and
inadequate. While the regional court made passing reference to
certain elements to the appellant's background , the detailed
professional findings contained in the report were not meaningfully
analysed or properly weighed against the aggravating factors.
18.2 The sexual abuse finding was not properly weighed . The probation
officer's report explicitly details that the appellant was subjected to
prolonged childhood sexual abuse by Accused 1. The finding was
not disputed and was acknowledged by both the magistrate and the
prosecutor. The appellant contends that the regional court
acknowledges the sexual abuse in the sentencing judgment but
treated it as one of many rather than as a profoundly significant
mitigating factor that fundamentally affected the appellant 's
psychological development and his capacity for independent moral
judgment on the night of the offence.
18.3 Reliance on unsubstantiated prosecutorial assertions: the appellant
argues that the regional court took into account facts that did not
constitute evidence, but that were submissions made from the Bar.
18.4 Overemphasis on the seriousness of the offence and the interests of
the community: the appellant contends that the general community
interest considerations applied by the regional court were overbroad
in the context of this specific case. The appellant was not a random
violent offender preying on strangers in public places. He was a
young man drawn into a specific and highly unusual set of
circumstances involving a dysfunctional family business, a
domineering abusive father , and a lifetime of conditioned
psychological obedience. The general community interest in
deterring random violent crime is not served proportionately by a
near-maximum sentence in these specific circumstances.
18.5 An erroneous finding regarding paternal influence : the appellant
states that t he regional court found in its sentencing judgment that
the appellant assaulted the deceased on his own accord and was
not influenced by his father to do so. The appellant submits that this
finding is factually incorrect and constitutes a material misdirection.
18.6 Inadequate weight was given to the appellant’s first offender status.
The appellant argues that t he regional court acknowledged that the
appellant was a first offender but did not give it adequate weight in
the sentencing calculation.
18.7 The appellant’s youth and immaturity were not sufficiently weighed.
18.8 The appellant’s g enuine remorse and willingness to testify against
co-accused: the appellant pleaded guilty to both counts at the
earliest opportunity, illustrating remorse and taking responsibility for
his conduct without wasting the court's time. Of particular
significance is the uncontroverted evidence that from the onset of
proceedings the appellant intended to become a section 204
witness against his co -accused and that he maintained this status
throughout the proceedings. The appellant says that the regional
court acknowledged that this was a mitigating factor but did not give
it the weight it deserves.
19. The probation officer recommended that the regional court consider
sentencing the appellant in terms of section 276(1)(b) of the CPA,8 including
a sentence in terms of section 276(1)(h) that provides for correctional
supervision as a sentencing option. This would enable the appellant to be
supervised within the community , including house detention, minimum hours
of community service per month , mandatory employment, participation in
rehabilitation programmes, movement restrictions, unannounced home visits,
drug and alcohol prohibition , and prohibition from contacting specified
8 “(1) Subject to the provisions of this Act and any other law and of the common law, the
following sentences may be passed upon a person convicted of an offence, namely …
following sentences may be passed upon a person convicted of an offence, namely …
(b) imprisonment, including imprisonment for life or imprisonment for an indefinite period … “
persons.
20. Having regard to all of the above , the appellant suggests that a sentence in
the range of 15 years ’ imprisonment would be appropriate. He requests the
court in terms of section 276(3)(a) 9 of the CPA to consider ordering that a
portion of such sentence be served under correctional supervision.
Consideration of the sentence imposed by the regional court
21. The murder of Mr Chi nzete was brutal. He was assaulted with a hammer ,
and sustained multiple injuries , including repeated stabbings . His body was
thrown to the side of the road , and was abandoned. It appears from the
content of the post-mortem report that t he appellant and his co -accused
showed no mercy when they committed the offence. The appellant cleaned
the car in which the murder took place, so that the perpetrators’ actions could
not be traced.
22. Mr Chi nzete had, at the time, been working for the same company as his
assailants, namely a distribution company known as M&I which was under
the management of Accused 1 and the appellant's late biological father, Mr
Raymond de Bruyn . He had a family ; he had his wife, a child , and a cousin.
His loved ones searched for him for two weeks, and even asked the appellant
and his co-accused whether they knew his whereabouts. His body was found
not because of the appellant’s change of heart, but because a traffic officer
stumbled upon it.
23. The appellant continued with his life, and it seems from the probation officer’s
report that he has tried to make it a meaningful one. One may ask, however,
whether, if the appellant had not been apprehended in 2022, his involvement
in the murder would ever have come to light. It is so that he showed remorse
after he had been caught, but there is no indication on the record of any prior
9 “(3) Notwithstanding anything to the contrary in any law contained, other than the Criminal
Law Amendment Act, 1997 ( Act 105 of 1997 ), the provisions of subsection (1) shall not be
Law Amendment Act, 1997 ( Act 105 of 1997 ), the provisions of subsection (1) shall not be
construed as prohibiting the court- (a) from imposing imprisonment together with correctional
supervision; …”
intention to come clean. He would have continued living his life – with his
secret – had there not, after many years, been a break in the case. It is in this
context that the appellant’s submission that the appellant has “genuine and
documented rehabilitative potential”, must be viewed. In any event, as
indicated below, the regional court took the appellant’s commendable attitude
in not wasting the court’s time, and his willingness to testify against his co -
accused, into consideration in finding that subs tantial and compelling
circumstances existed to deviate from the prescribed life sentence.
24. Mr Chinzete’s family will never get adequate support or compensation. His
death is a tragedy that will remain with them for the rest of their lives.
25. The following circumstances were placed before the regional court in
mitigation of sentence, together with the probation officer’s report : at the time
of the murder the appellant was 20 years old; he was not married and had no
children; h e was a first offender in relation to murder, and had been in
custody since his conviction. He had a previous conviction for reckless
driving, but it was an old one - a 10-year period had since elapsed. He was
gainfully employed as a security officer in a security company . He had
pleaded guilty; he had not wasted the court's time , and was willing to testify
against his co-accused.
26. The appellant was raised by both biological parents in Strand, together with
his four older brothers. His father founded and led a church and the family
was actively involved in religious life. During the appellant's middle childhood
years Accused 1 entered the family's life through his cousin's marriage. The
probation officer’s report states that h er entry onto the scene marked the
beginning of dysfunction , abuse (including sexual abuse) and psychological
manipulation that continued throughout the appella nt's formative years. This
manipulation that continued throughout the appella nt's formative years. This
was acknowledged by the regional court in both the sentencing judgment and
the ruling on leave to appeal.
27. Beyond the sexual abuse the appellant was subjected to a sustained
campaign of spiritual and psychological manipulation. According to the
probation officer, Accused 1 claimed to see ghosts and hallucinate, claimed
to cast spells over family members, demanded that the family to go to the
beach at night to escape evil and accused extended family members of
involvement in dark magic and other practices. The appellant's father was
described in the probation officer's report as ruling the family by dictatorship
and never allowing the children to make their own choices. He demanded
absolute obedience. This systematic deprivation of normal social
development, combined with absolute authoritarian control, created in the
appellant a deeply conditioned psychological framework for fear -based
obedience to his father that the probation officer identified as a primary
contribution factor to his conduct on the night of the offence.
28. The appellant’s childhood history is undoubtedly tragic, but I do not agree that
they justify a further reduction from the prescribed minimum sentence. No
expert evidence was pro ffered or defence raised that the appellant had
suffered from any form of mental incapacity as a result of his childhood
experiences at the time of the commission of the crime, or that he was
coerced into hitting Mr Chinzete with the hammer. The regional court clearly
considered the circumstances discussed in the probation officer’s report
within the broader context of the case. By implication, the regional court
considered the specific factors mentioned by counsel for the appellant,
namely that the appellant's childhood sexual abuse was central contributing
factor to his conduct, that he acted under the conditioned fear and obedience
to his father; that his family environment was dysfunctional and isolated.
29. One must keep in mind that there is no such thing as a perfect judgment.
Merely because a certain aspect is not mentioned in a judgment does not
necessarily mean that it was not considered. In Director of Public
Prosecutions: Limpopo v Molope and another10 the SCA held that its “function
Prosecutions: Limpopo v Molope and another10 the SCA held that its “function
is not to seek to discover reasons adverse to the conclusions of the trial
judge.... It is true that no judgment is perfect and all embracing, but it does
not necessarily follow that, because certain aspects were not mentioned in
10 2020 (2) SACR 343 (SCA) at para [55], confirming R v Dhlumayo 1948 (2) SA 677 (A) at
706.
the judgment, they were not considered.”
30. The regional court considered that compelling and substantial circumstances
appeared from the appellant’s personal circumstances, namely that the
appellant was relatively youthful at the time of the commission of the crimes,
that he had pleaded guilty to both offences and thus took responsibility for his
actions, and that he had spent about a year and six months in prison prior to
sentence. His willingness to testify against his co -accused was also
considered to be a contributing factor justifying deviation from the prescribed
minimum sentence.
31. In S v Muller11 the court stated that: "I take account that this accused has no
previous convictions and that he is a man in his fifties. However, I must also
take into account that there is no authority for the proposition that the
previous clean record of an accused convicted of offences in Part I of
Schedule 2 constitutes, in and of itself, a substantial and compelling
circumstance. At most it would be one of the considerations considered for
exploring the possibility that, in conjunction with other factors, it may
persuade the sentencing court to make such a finding.”
32. As indicated, the regional court found the appellant’s youth to be a factor
contributing to the existence of substantial and compelling circumstances to
deviate from the prescribed life sentece. The appellant was 20 years of age
at the time of the commission of the offence, and he fell outside the formal
provisions of the Child Justice Act 75 of 2008 (which applies to persons under
18). The SCA in S v Matyityi 12 confirmed that youth is prima facie a
mitigating factor, and that a court will not generally punish an immature young
person as it would a mature adult. The SCA held that a person of 20 years
must show by acceptable evidence that he was immature to an extent that his
immaturity can operate as a mitigating factor. In the present matter, the
11 [2006] ZAGPHC 51 (23 May 2006) para 59.
11 [2006] ZAGPHC 51 (23 May 2006) para 59.
12 2011 (1) SACR 40 (SCA) para 14. The SCA stated inter alia that it is “trite that a teenager is
prima facie to be regarded as immature and that the youthfulness of an offender will
invariably be a mitigating factor, unless it appears that the viciousness of his or her deeds
rule out immaturity”.
regional court exoressly dealt with this factor in declining to impose a life
sentence.
33. The fact that the appellant’s status as a first offender (in respect of murder) in
the present case was not regarded as a substantial and compelling
circumstance cannot be faulted. The appellant complains that his defence in
this respect, and his reliance on what was stated in Samuels v S13 in relation
to the issue of an accused’s first offender status, was insufficiently
considered. The regional court however (correctly, in my view) distinguished
Samuels on the basis that the minimum sentence provisions of section 51(1)
of the CLAA were not applicable in that case. That case dealt with a
completely different crime, namely the contravention of section 2 read with s
39(2) of the Arms and Ammunitions Act 75 of 1969 . The SCA in any event
did not imply that first offender status must be given particular preference in
the line-up of relevant factors. In the present matter, the appellant’s status as
first offender was not ignored, but was duly considered along with the other
factors relevant to the question of sentence.
34. As to the period in detention pre -sentence, it was held in Director of Public
Prosecutions North Gauteng: Pretoria v Gcwala and others 14 that such period
is but one of the factors that should be considered in determining whether the
effective period of imprisonment to be imposed is justified. It was further
stated that the test is not whether, on its own, that period of detention
constitutes a substantial and compelling circumstance, but whether the
effective sentence proposed is proportionate to the crimes and whether the
sentence in all the circumstances, including the period spent in detention
prior to conviction and sentence, is a just one.
35. The appellant’s case was brought to court fairly quickly in comparison to most
other cases. In any event, the regional court nevertheless listed it as a factor
other cases. In any event, the regional court nevertheless listed it as a factor
in finding that substantial and compelling circmstances existed for deviation
from the prescribed life sentence.
13 2011 (1) SACR 9 (SCA) paras 6 and 12.
14 2014 (2) SACR 337 (SCA) paras 10-19.
36. It does not appear, from a reading of the regional court’s judgment as a
whole, that the “unsubstantiated facts” upon which the regional court is said
to have relied were material in the consideration of what an appropriate
sentence would be. The mitigating factors far outweighed by aggravating
factors. There is no justification for the imposition of a lesser sentence in
further deviation from the prescribed minimum sentence , and the reliance or
not upon the impugned facts doees not change this postiion . The sentence
imposed in respect of the murder conviction is not shockingly
disproportionate. If anything, it is relatively lenient given the aggravating
circumstances. This is not a matter in which a non -custodial sentence is
appropriate. Section 276(3)(a) of the CPA expressly provides that a court’s
powers in pairing a custodial sentence with a non -custodial one is subject to
the provisions of section 51 of the CLAA. 15 I am also not in agreement with
the appellant’s suggested reduction of his current 25 -year sentence to one of
15 years.
37. It is of course correct, as counsel for the appellant pointed out , that the
Constitutional Court in S v Dodo 16 confirmed than an offender should not be
sacrificed at the altar of deterrence 17 for the benefit of the society, and that
every sentence must reflect a genuine and individualized assessment of the
specific offender before the court. The regional court in the present matter
did no sacrificing. Given the particular nature of the crime, I do not agree with
the appellant’s argument that it (the crime) was unduly emphasised at the
appellant’s expense.
38. The principle of mercy acknowledged in S v Rabie 18 requires that it be given
genuine rather than nominal content in the sentence actually imposed. The
regional court’s finding that substantial and compelling circumstances existed
to deviate from the prescribed minimum sentence shows exactly that: mercy
to deviate from the prescribed minimum sentence shows exactly that: mercy
towards the appellant in the particular circumstances of the case.
15 See footnote 9 above.
16 2001 (3) SA 382 (CC) at para 38.
17 See Phillips v S [2016] ZASCA 187 (1 December 2016) para 18.
18 1975 (4) SA 855 (A).
39. It can, in all the circumstances, not be said that the regional court misdirected
itself in sentencing the appellant as it did.
Order
40. I accordingly propose that the following order be granted:
The appeal is dismissed.
___________________________
P. S. VAN ZYL
Acting Judge of the High Court
I agree, and it is so ordered.
___________________________
C. N. NZIWENI
Judge of the High Court
Appearances:
For the appellant: Ms S. Kuun
Instructed by: Legal Aid South Africa
For the respondent: Ms M. Koti
Instructed by: Directorate of Public Prosecutions, Western
Cape