State v Janse Van Rensburg

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: CI Moosa J
• Judgment Date: 21 June 2022
• Court: Mpumalanga Division, Mbombela
• Hearing Date: 01 April 2022
• Docket Number: CC 70/2020

Moosa J:

[1]

MR NICHOLAS HENDRIK JANSE VAN RENSBURG ('accused') has been found guilty on Friday, 01 April 2022, on the following charges:

[a]

COUNT 1:

MURDER READ WITH THE PROVISIONS OF SECTION 51(1)(a) AND PART 1 OF SCHEDULE 2 OF ACT 105 OF 1997

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IN THAT on or about 13 October 2019 and at or near Mjejane RDP next to Walala Wasala Tuck-shop in the district of Komatipoort the accused did unlawfully and intentionally assault ZITHA ANDISWA NANCY, an adult female by beating her causing serious injuries as a result whereof the said ZITHA ANDISWA NANCY died on 15 October 2019 in the Tonga Hospital.

[b]

COUNT 2:

RAPE READ WITH THE PROVISIONS OF SECTION 51(1) OF ACT 105 OF 1997

IN THAT on or about the date and at or near the place mentioned in count 1, the accused did unlawfully commit an act of sexual penetration with ZITHA ANDISWA NANCY, a female person, by inserting a wooden spoon into her vagina, more than once, without her consent.

[2]

The court in imposing sentence, must have due regard to the facts of the case, and in addition thereto, must apply certain well-established legal principles relating to the extent and magnitude of punishment. An awesome responsibility is thereby vested in the Court.

[3]

The acknowledged objects and purpose of criminal punishment are deterrent, preventive, reformative and retributive.

[4]

What must also be considered is the triad consisting of the crime, the offender and the interests of society. [1] I am in respectful agreement with what has been stated in these cases. The elements of the triad contain an equilibrium and a tension. 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. This is not merely a formula, nor a judicial incantation, the mere stating whereof satisfies the requirements.

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What is necessary is that the court shall consider, and try to balance evenly, the nature and circumstances of the offence, the characteristics of the offender and his circumstances and the impact of the crime on the community, it's welfare and concern. This conception as expounded by the courts is sound and is incompatible with anything less. Therefore all the elements of the triad, although not identical are in dissociable.

[5]

The nature of the crime is of considerable importance. It may be of such significance or so far reaching that a lengthy period of imprisonment is the only adequate punishment. In passing sentence the trial court must take into account the moral and ethical nature of the crime, and the gravity of the offence. It is accepted and is indeed logical that a more serious crime will carry with it a greater moral blameworthiness than a minor or less serious offence. This involves a moral and value judgment. A process of arid intellectualism is insufficient. Mere theorising is insufficient. What matters finally is how the court views the crime on its own merits, and all the relevant proven facts and circumstances must be carefully considered and assessed.

[6]

Merely to find that a crime by itself is serious without regard to it's setting and it's factual context, and thereby concluding that the crime committed by the offender is therefore also serious, is not appropriate, and may result in a serious misdirection. The court does not and cannot rely on a catalogue of crimes. To do so would result in a purely mechanistic approach, whereby the court, in it's judicial discretion, would fail to pay due regard to the facts and circumstances of the particular crime.

The sentence therefore must be commensurate with the gravity or otherwise of the crime, and is a necessary concomitant of punishment. [2]

[7]

In considering the offender, due regard must be had, inter alia, to the following: his/her age and background; level of education, attainment, and position in society; family circumstances, whether married or not, and the

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question of dependants; motive in committing the offence, whether for personal gain or for reasons of avarice, or being actuated by some moral or laudable objective; whether the offender stood to gain by the offence; the question of the accused being a first offender; the effect of punishment on the offender, and more particularly if a sentence of imprisonment is imposed; the prospects of reformation and correction, and becoming a useful member of society; the presence or absence of remorse or contrition; whether instead of imprisonment an alternative method of punishment would not be appropriate in the circumstances; a perceptive understanding of the accused's human frailties as effected by the circumstances surrounding the commission of the offence in question and a balancing of those frailties against the evil of the offender's deed [3] ; influence or encouragement of another [4] .

[8]

Due weight must be given to the personal circumstances of the accused. As a general principle equal punishment for equal offences is to be imposed unless the personal characteristics of the respective accused make such differentiation necessary.

[9]

The feelings and requirements of the community, the protection of society against the accused and other potential offenders must be considered, as well as the maintenance of peace and tranquility in the land needs to be taken into account. Whilst considering the interests of society as a factor in determining sentence, the interests of society should not be over-stressed to the detriment of the personal factors of the accused.

I pause to mention that a balance should be maintained between the different elements of the triad.

[10]

It is noteworthy to mention that this triad has been criticised as inadequate, as the role of the victim is not emphasised. This anomaly has caused the courts to now give serious consideration to the victim during

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sentencing proceedings. This phenomenon has been termed as the squaring of the triad.

[11]

An enlightened and just penal policy requires consideration of a broad range of sentencing options from which an appropriate option can be selected that best fits the unique circumstances of the case before court. [5] To that should be added, it also needs to be victim-centred. Internationally the concerns of victims have been recognised and sought to be addressed through a number of declarations, the most important of which is the UN Declaration of the Basic Principles of Justice for Crime and Abuse of Power. [6]

The Declaration is based on the philosophy that adequate recognition should be given to victims and that they should be treated with respect in the criminal justice system. In South Africa victim empowerment is based on restorative justice. Restorative justice seeks to emphasise that a crime is more than the breaking of the law or offending against the state - it is an injury or wrong done to another person. [7]

The underlying philosophy of the Service Charter for Victims of Crime in South Africa [8] (also referred to as Victim's Charter) is to give meaningful content to the rights of all citizens, by reaffirming one of our founding democratic values namely human dignity. [9]

[12]

By accommodating the victim and/or their representative during the sentencing process the court will be better informed before sentencing about the after effects of the crime. The court will thus have at its disposal information pertaining to both the accused and victim and in that way hopefully a more balanced approach to sentencing can be achieved. Absent evidence from the victim and/or their families, the court will only have half of the information necessary to properly exercise its sentencing discretion. It is

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thus important that information pertaining not just to the objective gravity of the offence, but also the impact of the crime on the victim and/or their families be placed before the court. That in turn will contribute to the achievement of the right sense of balance and in the ultimate analysis will enhance proportionality rather than harshness. [10]

[13]

The convictions in this case relate to the cold blooded, callous, heinous, egregious, systematic, predatory, opportunistic, wretched, despicable and contemptible conduct on the part of the accused. His conduct further clearly displays an absolute flagrant disregard for the sanctity of human life.

[14]

The Accused has been found guilty of one count of Murder and Rape read with Section 51(1) of the Criminal Law Amendment Act 105 of 1997, which prescribes the imposition of life imprisonment, on each count.

[15]

It is clear from the evidence before this court, that the conduct of the accused involved a wanton disregard for his victim; an element of planning and premeditation, and a single-minded resolve on his part to commit the crimes, for which he has been convicted off. His behaviour and conduct can be described, and may be likened to a Slubberdegullion. This conclusion is fortified by the fact that he set upon the deceased in a vicious, brutal and unrelenting manner, like a hyena.

[16]

I have duly taken note of the fact that the accused does not have any previous convictions, and accordingly stands as a first offender before this Court.

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[17]

The accused testified, inter alia, in mitigation of sentence, as follows:

[a] He was born on 19 August 1981 and is currently 40 (forty) years old. His highest standard of education is Standard 8 (eight), which he completed in 1999.

[b] He is married and has one son who is 18 years old, and three daughters who are 13, 12 and 6 years old respectively. His son resides with the accused's friends in Mbombela, whilst his daughters are with his wife in...