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REPUBLIC OF SOUTH AFRICA

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

HELD INTHE DELMAS CIRCUIT

CASE NO: CC31/13

DATE: 28 MARCH 2014

In the matter between:

THE STATE

Vs

THABISO PRINCE MONTSHO

JUDGMENT

THULARE AJ

[1] The accused, a 27 year old male, is charged with one count of murder and one count of kidnapping. He pleaded guilty to both charges. The State did not accept the plea that the murder was not planned or premeditated.

[2] It is common cause that the accused was in an intimate relationship with the maternal aunt of the deceased and that she terminated that relationship contemporaneous with the developments leading up to the charges against the accused. The accused did not accept that the relationship has irretrievably broken down. He still harboured hopes that that relationship could be restored. The accused and the family of the deceased both lived in Wattville, in the magisterial district of Benoni. The deceased and his mother lived together with her younger sister, the accused’s erstwhile girlfriend, at the same address.

[3] It is common cause that on the afternoon of 11 August 2012, at around 17H00 the accused came and removed the deceased, Tshegofatso Moraswi, at that time a 3 year old boy-child who was to turn four years old the following month, from the street in front of their home where the deceased was playing with his twin brother and a friend, pushing old tyres along the street; that he carried the child for some distance, then walked with away and took the child to Wattville Dam, also known as Dalpark Dam, where he stabbed the child several times with a knife, with the intention to kill the child, and that he killed the child and then fled the scene leaving the deceased there at the dam.

[4] The evidence shows that Albert Basi, a 16 year old youth was at the corner of Padi and Poto street, not far from where the three young infants were playing the tyre game. Whilst there, he saw the accused at that corner. He noted that the accused was keeping observation. He knew the young children from sight but did not know their names, and also knew that the accused had an intimate relationship with a relative of the deceased. He saw the children playing their tyre game. It came as no surprise to him when the accused called the young boy to him, neither was it strange to him when the accused first carried the child and later walked away with the child. In his mind, they were on their way to the shops for the accused to spoil the child with some gifts.

He reported what he saw only later that evening when he heard that the child was missing. The accused had walked with the child to the direction of Wattville Dam. The evidence suggests that it is amongst others from the reports of Basi that the community of Wattville caught the accused, and assaulted him, before he was handed over to the police.

[5] Maputle Jeffrey Tlaka is a Captain in the SAPS, stationed in Etwatwa, who was asked by the Actonville SAPS to oversee a pointing out, which was done by the accused. When explained his right to legal representation, the accused had indicated that he does not need legal representation for purposes of the pointing out, although he may require legal representation in future. When explained that what he says will be noted down and that photos will also be taken, which may be used later as evidence against him during a subsequent trial, he indicated that he understood and when asked whether he still wished to make the pointing-out, he replied in the affirmative. He indicated that he was not assaulted, threatened or influenced by any person to make the pointing-out. When Captain Tlaka observed the bruises on his back, the accused told him that the bruises were as a result of the assault by the community members when they arrested him, before the police arrived.

[6] The accused, freely and voluntarily took Captain Tlaka, the photographer and other back-up police officers to the pointing-out scene. The accused directed Captain Tlaka from Benoni SAPS station through a number of streets in Wattville, leading them out of the squatter settlement towards the dam. At the dam the accused took them into the Dalpark area where he then asked them to stop . The accused walked them for about 300m and pointed at a wet and muddy area and said that is where he killed and left the small child, which he carried away from Poto street in Wattville, whereafter he threw away the knife with which the child was stabbed, and fled the scene. Photos which were taken, were handed in as exhibits.

Captain Tlaka was not cross-examined at all.

[7] The accused version is that the maternal aunt of the deceased was his girlfriend, and that her parents did not approve of their relationship. Arising out of a dispute which arose between her and her parents, she left her parental home and came to stay with him. He and his parents accepted her for she was pregnant with his child. The first attempt of reconciliation between her and her parents, in his room which he shared with her failed, but later she reconciled with her parents and moved back home. From then on, his attempts to meet with her were thwarted by her relatives and he was prevented from seeing her. Even an attempt through her friend to get to know her well-being, or see her, failed. For a few months he went about hurting, attempting to get to see and reconcile with her and or her parents, which attempts were always met with contemptuous disregard. Attempts by his parents to settle the issues between him and her family also failed.

[8] On 11 August 2012 he attended a traditional ceremony as he is a traditional healer. Whilst there, he shared his frustrations and hurt with other traditional healers and took a decision to join them dance as part of his emotional healing. He did not have his traditional regalia with him and decided to go home to fetch it, which he did.

[9] When he left home, he had with him a sports bag, containing his regalia as a traditional healer, which included his kangas, blanket, and beads to which a knife is attached. Carrying his sports bag, he decided to go first via his girlfriend’s home in yet another attempt to reconcile with her and her family. He knocked and received no answer.

[10] As he left the yard, he noticed a group of children playing in the street in front of that yard, amongst others was the deceased whom he knew as one of the twin boy children of Jabulile, the girlfriend’s elder sister. He picked up the child and does not know why he did so. He walked away with the child not knowing where he was going. He did not talk to the child, neither did the child talk to him throughout their 30 minutes walk from Poto street, through Silver Town and Tamboville, to the dam, in Wattville.

[11] He just walked aimlessly carrying the child and when he came back to his senses he was at the dam. He heard voices in his head, but could not hear what the voices were saying. However, it is not the voices that told him to kill the child. He does not know if he put the child down or whether the child dropped from his hold. He undressed the child, removing all the clothing and leaving the child naked. He opened his sports bag, searched for and took out the beads, removed the knife therefrom and started stabbing the child. He does not know how many times but he accepts it was 12 times. When he left the child, the child was still crying and it was dark. He walked away. He threw the child’s clothing amongst the reeds at the dam, some distance away from the child. He also threw away the blood-stained knife away.

[12] He ran home. In his room he changed the blood-soaked clothing which he had on and placed them in a plastic bag. He moved around the structures on the yard to the backyard where he hid the plastic bag containing his blood-soaked clothing.

[13] The parents of the deceased came to his house, looking for the child. He denied any knowledge of the whereabouts of the child. He was confronted with information that he was the person last seen walking away with the child. He denied this. He was afraid of the parents and the community. He was taken away to the child’s home. The Police were called to the house. They asked him about the whereabouts of the child and he denied any knowledge and denied walking away with the child. He later admitted to the Police that he took the child away but did not tell them that the child was injured. He did not tell the Police everything that happened.

[14] Upon searching his parental home, his blood-stained clothing was discovered where he had hid them inside the plastic bag behind the house. The child was searched for but was never found that Saturday. It was only the following day, the Sunday, on further searches by the community and the Police, that the body of the child was discovered at the dam. His version is that he could not take the Police or the community to the child as he did not remember where he had left the child.

[15] He did not plan what happened. He cannot explain why he did what he did. He never had any problems with the biological parents of the child. He went to school with them. He asked for forgiveness for what he did.

[16] After the testimony of the accused the State applied to re-open its case, which application was not opposed and was granted.

[17] Jacobus Cornelius Coetzee (Coetzee) is a registered Clinical Psychologist who runs an independent practice but also renders his services to Weskoppies Hospital in clinical psychology and forensic psychological assessment. He holds a Bachelor’s degree in Theology and Psychology, an Honours degree in Psychology and a Master’s degree in clinical psychology. He is registered with the Health Professions Council of South Africa. He is a member of the South African Medico Legal Society as well as the International Association for Forensic Mental Health Services.

[18] He evaluated the accused at the request of the court whilst the accused was under observation at Weskoppies Hospital in Pretoria.

[19] In his psychological interview with the accused, the accused reported to him the voices that scream at him usually at night, and throw him with birds and chickens. The voices tell him to take a cable wire to hang himself and sometimes cut himself with a razor or to fight people.

[20] Coetzee conducted a psychometric test on the accused.

20.1 Under the personality assessment inventory (PAI), which test provides information relevant for clinical diagnosis, treatment planning and screening for psychypathology and covers constructs most relevant to a broad-based assessment of mental disorders, the accused answered the questions in a way to create a distorted profile. His interpretation of the marked elevation on the negative impression scale is that the accused made a deliberate attempt to create an overly negative impression of himself. Coetzee holds the view that this is indicative of an attempt to malinger psychiatric symptoms.

20.2 Under structured inventory of malingered symptomatology (SIMS), which test is a multi-axial, self-administered screening measure for detection of malingering in clinical and forensic settings, the accused scored positive for attempted malingering for all of the scales on psychosis, neurologic impairment, amnestic disorders, low intelligence and affective disorders. Coetzee interprets this as that the accused endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders, this may indicate an attempt to malinger these symptoms.

20.3 Under the inventory of legal knowledge (ILK), which is a test designed to assist the forensic examiner in assessing reponse styles of defendants undergoing evaluations of their competency to stand trial and is a measure of a defendant’s approach to inquiries about his legal knowledge, the accused obtained a score of 50, which score falls in the upper end of the normal range. Coetzee interprets this as that the test results support the fact that the accused did not attempt to feign limitations in his ability to understand or participate in the legal process.

[21] Coetzee’s opinion is that the accused does not currently suffer from any clinical psychiatric disorders and that at the time of the incident he did not suffer from any clinical psychiatric disorder. Coetzee’s opinion is that the accused shows antisocial and narcissistic personality traits. Coetzee is also of the opinion that the accused is currently malingering some psychiatric symptoms, specifically those in the psychotic disorder spectrum.

[22] Coetzee’s conclusion is that the accused is capable of understanding the court proceedings and can meaningfully contribute to his own defence, and that at the time of the commission of the offence, the accused was able to distinguish between right and wrong and was able to act in accordance with such understanding.

[23] Dr K Naidu, a State Psychiatrist and Dr PH De Wet, a Psychiatrist appointed by the Court, are both duly registered psychiatrists who compiled a joint report regarding the mental condition of the accused, which was handed in by agreement between the parties.

[24] Their examination consisted of clinical interviews with the accused and observation of his general behaviour in the ward. He was physically examined. A summary of court proceedings was made available to them, a psychosocial report was complied and he was psychologically evaluated.

[25] The two Psychiatrists found no psychiatric diagnosis. The diagnosis they found was malingering. They both noted his previous medical and psychiatric history.

[26] Their opinion is that the accused is capable of understanding court proceedings and is able to contribute meaningfully to his defence.

[27] Their opinion is also that at the time of the alleged offences, the accused did not suffer from a mental disorder or mental defect that affected his ability to distinguish between the rightful or wrongful nature of his deeds. A mental disorder or mental defect did not affect his ability to act in accordance with the said appreciation of the rightful or wrongful nature of his deeds.

[28] The only issue between the State and the accused is whether the murder was planned or premeditated.

[29] The joint report of the two Psychiatrists, Dr Naidu and Dr De Wet, was admitted by the accused. The only criticism that the court has, of their report, is that they do not set out their training, competency, skill and/or experience, to enable the court itself to conclude that they are persons qualified to be experts in their field. Moreover, they do not indicate the nature of the clinical interviews, other observations and examinations they carried out as well as the facts they found, upon which their diagnosis is based, to enable the court to draw its own conclusions. In the light of their being qualified as experts not being in dispute, for purposes of this judgment, their titles and their declaration that they are duly registered psychiatrists will suffice to meet their qualification as experts to make a psychiatric diagnosis. In the same breath, I accept their opinion as the opinion of the court and find that no psychiatric diagnosis was made in respect of the accused, and that what was diagnosed was malingering.

[30] The court finds that the accused is capable of understanding court proceedings and is able to contribute meaningfully to his defence. The court further finds that at the time of the alleged offences the accused did not suffer from a mental disorder or mental defect that affected his ability to distinguish between the rightful or wrongful nature of his deeds. A mental disorder or mental defect did not affect his ability to act in accordance with the said appreciation of the rightful or wrongful nature of his deeds.

[31] Having regard to the evidence of Coetzee, the court finds that the version of the accused that he heard voices is beyond reasonable doubt false. With specific reference to the psychometric tests conducted on the accused and with specific reference to the personality assessment inventory, the court finds that this is part of the accused’s deliberate attempt to create an overly negative impression of himself in an attempt to malinger psychiatric symptoms. The court further finds that the accused endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders. The court also finds that the accused falls in the upper end of the normal scale and that the accused did not attempt to feign limitations in his ability to understand or participate in the legal process.

[32] The court accepts the opinion of Coetzee, and finds that the accused has anti-social and narcissistic personality traits. The court further finds, in favour of the accused, that the murder was not planned.

[33] Section 51(1) of the Criminal Law Amendment Act, 1997 ( Act No. 105 of 1997) provides as follows:

“Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life.”

Part I of Schedule 2 referred to provides as follows:

“Murder, when –

(a) It was planned or premeditated; …”

[34] The terms “planned” or “premeditated” are not defined in the Act. The Cape Provincial Division, through Bonzalek J writing for the Full Bench, pronounced itself as follows on this aspect in S v Raath 2009(2) SACR 46 (C) at paragraph [16] c-g:

“The concept of a planned or premeditated murder is not statutorily defined. We were not referred to, and nor was I able to find, any authoritative pronouncement in our case law concerning this concept. By and large it would seem that the question of whether a murder was planned or premeditated has been dealt with by the court on a casuistic basis. The Concise Oxford English Dictionary 10 ed, revised, gives the meaning of premeditate as ‘to think out or plan beforehand’ whilst ‘to plan’ is given as meaning ‘to decide on, arrange in advance, make preparations for an anticipated event or time’. Clearly the concept suggests a deliberate weighing-up of the proposed criminal conduct as opposed to the commission of the crime on the spur of the moment or in unexpected circumstances. There is, however, a broad continuum between the two poles of a murder committed in the heat of the moment and a murder which may have been conceived and planned over months or even years before its execution. In my view only an examination of all the circumstances surrounding any particular murder, including not least the accused’s state of mind, will allow one to arrive at a conclusion as to whether a particular murder is ‘planned or premeditated’. In such an evaluation the period of time between the accused forming the intent to commit the murder and carrying out this intention is obviously of cardinal importance but, equally, does not at some arbitrary point, provide a ready-made answer to the question of whether the murder was ‘planned or premeditated’.

[35] Clearly, the Full Bench approached “planned or premeditated” as a concept, meaning it as one idea. It appears in my view, with respect, that the learned Judges accepted the word “or” between the two words as meant to introduce a synonym or explanation of a preceding word.

[36] In my view, the two words, “planned” and “premeditated”‘ are two different concepts representing two different ideas. “Premeditated” refers to something done deliberately after rationally considering the timing or method of so doing, calculated to increase the likelihood of success, or to evade detection or apprehension. On the other hand, “planned” refers to a scheme, design or method of acting, doing, proceeding or making, which is developed in advance as a process, calculated to optimally achieve a goal. Such process has general features which include:

1. The identification of the goal to be achieved.

2. The allocation of time to be spend.

3. The establishment of relationships necessary to execute.

4. The formulation of strategies to achieve the goal.

5. Arrangement or creation of the means or resources required to achieve the goal and

6 Directing, implementing and monitoring the process.

In my view, the word “or” between “planned” and “premeditated” in Part I of Schedule 2 introduces the second of the two alternative concepts. In my view, the use of the word “or” indicates that the Legislature did not favour a composite description of the circumstances, to meet the test.

[37] There is no evidence to suggest that the accused conceived an intention or plan to kill the deceased before that fateful afternoon, or specifically before he met the deceased in the street. From the accused’s own version, it is clear that he was angered by the actions of the blood relations of his girlfriend, in particular their disapproval of his relationship with their daughter and their actions in a quest to bring that relationship to an end. His anger seems to have been fuelled by Tshepiso, girlfriend, ending their relationship on Friday the 10th August 2012, the day before he killed the deceased, on the accused’s own version as related to Coetzee.

[38] The court accepts the evidence of Coetzee and finds that the accused’s identity is one of ego-centrism with a self-esteem derived from personal gain, power or pleasure and that his goal-setting is based on personal gratification. He has a lack of concern for feelings, needs or suffering of others. Exploitation is his primary means of relating to others, including coercion and use of dominance. The court also accepts that the accused has a personality trait of grandiosity with feelings of entitlement, either overt or covert self-centredness, firmly holding the belief that he is better than others and is condescending towards others and is attention seeking with excessive attempts to attract and be the focus of the attention of others in admiration seeking.

The court finds that the version of the accused that his possession of the knife that afternoon in Poto street, Wattville, was simply a co-incidence, is highly improbable. So is his version that the reason for him to be in that street, where Tshepiso’s parental home is situated, was an attempt to reconcile. Both are beyond reasonable doubt false, in my view.

[39] When the accused saw the 3 year old boy pushing a tyre playing with his twin brother and friends, he conceived the idea of killing the infant as a sign of his power to satisfy his self-esteem. The killing was an act calculated to force Tshepiso’s relatives towards benevolence and acceptance of his relationship with her, thus seeking their attention. It was also an act of revenge to Tshepiso for ending the relationship, and her family for their disapproval of him as a suitable partner for her.

[40] The deceased and his twin brother were playing without any adult supervision from a relative. The accused stood by the corner, doing an observation. The likelihood is that he had hoped to see and meet Tshepiso. He had sufficient opportunity, as he stood and observed, and as he noted the children playing, to ponder. The accused did not take any child and stab him or her, there and then in a moment of rage or impulsively in a spur of a moment. He specifically called the child of Jabulile, the elder sister of Tshepiso. When the accused carried the child away, he had rationally considered the timing and circumstances as suitable for the removal of the child to an isolated spot. The 30 minute walk to an isolated dam outside the township increased the likelihood of him succeeding to kill the child without any interference, detection or apprehension. The brutal killing of the child was an act of power, an act of dominance in the sense of having the last laugh in the whole episode, an act of personal gratification, an act of revenge, an act of hurting Tshepiso and her family, an act to influence control and manipulate Tshepiso and her family, an act of callousness, an act of hostility in response to the discipline which Tshepiso’s family tried to enforce. It was unnecessary. It was unnecessary to undress the child, with the attendant cold temperatures of the closing stages of the winter months in Gauteng, South Africa, especially the East Rand, at that time of the day, and month. Not only was it an act of lack of concern for feelings of the child and accused’s lack of guilt or conscience about the harmful effects of his aggressive actions. It was also an act of humiliation not only to the child, but also to his family.

[41] The court finds that the murder was premeditated.

My understanding of the decision in S v Malgas 2001(2) SA 1222 (SCA), as well as the decision in S v Khiba 1993(2) SACR 1 (A), in my view, having regard to the terminology therein employed, does not convey facile enough to me that the Supreme Court of Appeal itself interprets “premeditated” to be incapable of being understood as a concept on its own. I have not been referred to, nor self been able to trace any judgment where this question was specifically discussed.

[42] The accused is found guilty of the premeditated murder, as set out in count 1. He is also found guilty of kidnapping, as set out in count 2.

DM THULARE

ACTING JUDGE OF THE HIGH COURT

ON SENTENCE

[42] Section 51(3)(a) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997 provides that:

“If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence that the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence: …”

[43] The approach to this provision was set out in S v Malgas 2001(2) SA 1222 (SCA) at 1233-1234 paragraph [18] by Marais JA as follows:

“The absence of any pertinent guidance from the Legislature by way of definition or otherwise as to what circumstances should rank as substantial and compelling or what should not, does not make the task any easier. That it has refrained from giving such guidance as was done in Minnesota from whence the concept of ‘substantial and compelling circumstances’ was derived is significant. It signals that it has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence. In doing so, they are required to regard the prescribed sentences as being generally appropriate for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so. A departure must be justified by reference to circumstances which can be seen to be substantial and compelling as contrasted with circumstances of little significance or of debatable validity or which reflect a purely personal preference unlikely to be shared by many.”

[44] In S v Dodo 2001(3) SA 382 (CC) at paragraph [11] The Constitutional Court, through Ackermann J, endorsed the interpretation of the words ‘substantial and compelling circumstances’ in s 51(3), and the detailed step-by-step procedure to be followed in applying the test to the actual sentencing situation. Ackermann J said at 393 B-D:

“The interpretation, as an overarching guideline, is one that this Court endorses as a practical method to be employed by all judicial officers faced with the application of s 51. It will no doubt be refined and particularised on a case by case basis, as the need arises. It steers an appropriate path, which the Legislature doubtless intended, respecting the Legislature’s decision to ensure that consistently heavier sentences are imposed in relation to the serious crimes covered by s 51 and at the same time promoting the ‘spirit, purport and objects of the Bill of Rights’”.

[45] In that step-by-step procedure, Marais J said at 1235 paragraph [25] from his letters B-G:

“B. Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C. 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.

D. 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.

E. The Legislature has, however, deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored

F. All factors (other than those set out in D above) traditionally taken into account in sentencing ( whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. 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 cumulatively justify a departure from the standardised response that the Legislature has ordained.”

[46] The totality of the evidence shows that the accused is swimming against the tide of the national agenda, which agenda seeks to confront the frontiers of violence against women, children, the differently able-bodied as well as older persons. In my view, the national agenda seeks to sweep these frontiers away and to deposit them onto the shoreline amongst the debris of our history where the stubborn monument of patriarchal chauvinism belongs, in the sea of a democratic and constitutional milieu.

[47] Two days after the commemoration of National Women’s Day, when the consciousness of celebrating women was still fresh in the memories of all South Africans who care to listen, the accused approached the home of his former girlfriend armed with a knife, seeking to revenge his grief and anger occasioned by being told that the girlfriend has lost love and affection for him.

[48] Accused had a history of domestic violence with his girlfriend. He was controlling and manipulative, according to her. She left the common home she shared with the accused after accused had assaulted her again, and this time whilst she was pregnant. Knowing that she was pregnant, he had assaulted her on her womb. She realised that the accused was a danger to her, and to her unborn child, and left the common home. When she arrived at her parental home, she bled from her private parts and ultimately lost the unborn child.

[49] Around the period of the commission of the offence, it is well known that the nation is already in dialogue, with logistical arrangements already being made and speakers arranged, at least now for more than ten years, in preparation for the 16 days of activism against women and child abuse, which starts two months thereafter, from 25 November to 10 December annually. It is around the time of the national engines of mobilisation to start roaring to run for the protection of children, that the accused removed a child from the care of its parent with the intention to kill him.

[50] There is no doubt that the killing of a defenceless child is a serious crime, which is prevalent in this country, and that society expects of the courts to deal decisively with offenders. The accused was undoubtedly in a position of trust in relation to the child. It may be so that the child also had in mind what Basi thought, to wit, that he is being taken to the shops to be spoilt with gifts by its uncle. Three year olds are known for their being talkative and speaking their minds. This explains why the wisdom of African ancestors is to remove children of that age for the bedroom of their parents to their grandmothers. It is highly unlikely, in my view, that the boy-child did not talk to the uncle. The probabilities favoured a conclusion that the accused must have said something to the child, which stirred the interest of the child so much so that it left to play. The probabilities favour a conclusion that what the accused said to the child settled the child and in trust and hope the child left with the accused without any resistance.

[51] The child must have been shocked, and felt betrayed, when the person he had trusted would protect him, started to stab him. A then 25 year old man stabbed a naked defenceless child 12 times. The child had been removed to an isolated area early evening where there was no chance of anyone coming to its rescue. At dusk, alone amongst the reeds, naked and brutally injured, a young life was painfully lost. Aspirations died. Dreams were lost. A chapter ended. The motive was revenge and jealousy, informed by antisocial behaviour and a narcissistic personality. The murder was premeditated.

[52] The accused pleaded guilty to the charge. He has a previous conviction of assault. It was not a serious assault such that it is even possible that the provisions of section 112(1)(a) of the Criminal Procedure’s Act 51 of 1977 were applied, having regard to the sentence imposed. He is 27 years of age. He worked as a traditional healer and earned approximately R7000-00 (seven thousand rands) a month.

[53] Counsel for the accused argued that the accused showed remorse. I am inclined to disagree. It is difficult, if not impossible, to detect any remorse on the side of the accused, as he appears to always shift the goal-posts away from a frank, candid and honest approach.

He initially denied any knowledge of the whereabouts of the child and only made admissions when confronted with evidence for which he could not provide a satisfactory answer.

When it was clear that there was evidence by eye-witnesses that he had left with the child, only then did he admit leaving with the child, but claimed he did not know where the child was.

When his blood- soaked clothing were found and the child was discovered, he made a pointing out, but malingered mental illness or mental disorder.

[54] The court also takes into account that the accused has an antisocial personality disorder and a narcissistic personality disorder. The evidence of Coetzee is that these disorders may be genetically transferred, but can also be acquired from the systems under which one grows up or from the society from which one emerges.

[55] The family set-up of the accused appears to be such that it allowed him to fail to conform to culturally normative ethical behaviour. His parents allowed him to remove a school girl from her parental home and bring her home to live with him in his outside room as husband and wife, whilst that girl was still at school, without at least any resistance or at most involving the parents of the girl child.

Sent by him, his elders reported a pregnancy of the girl-child to her parents, contrary to established indigenous practice and custom, in terms of which the parents of the boy-child are reported to, by the elders of the girl-child.

With the greatest of respect to the accused parents, the evidence suggests that they simply asked: “How high” when he said: “Jump”, instead of them being in authority over him.

The silence of the accused parents in the struggle of Tsepiso’s parents to have their daughter back at home and in school, and to have the accused reigned in, is too loud to be disregarded, as a contributory factor in the antisocial personality make-up of the accused.

It seems to me that the accused was so used to the absence of parental authority over him that he harboured a belief that he could do as he pleased with any child and/or any parent at any household. This in my view, informed his hostility and anger to the parents of Tshepiso when they stood their ground against his behaviour.

The court is inclined to find that the accused’s antisocial personality disorder and narcissistic personality disorder were nurtured and developed by the family from which he emerges.

In my view, the presence of the accused within the environment of his family constitutes a danger to society, unless and until there are programmes for interventions. As things stand, the accused is a danger to society.

[56] The right to life is sacred, basic to humanity itself and enjoying Constitutional protection. Children in this country are entitled to play in the streets, especially just in front of their parental home. They have a legitimate claim to play peacefully on the streets, to enjoy their youth, to run around and enjoy the peace and tranquillity of their homes and neighbourhoods without the fear, the apprehension and the insecurity which constantly diminishes the quality of their lives.

[57] The accused showed no respect for life. He prowled the streets, deceptively pretended to care for the child by lifting him up and carrying him away and then proceeded to kill him callously and brutally with a knife.

[58] Dealing with callous and brutal acts after victims were deceived by an accused and their rights were not respected, the Supreme Court of Appeal expressed itself as follows in S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) at 345 C-D:

“The Courts are under a duty to send a clear message to the accused, to other potential rapists and to the community: We are determined to protect equality, dignity and the freedom of all women, and we shall show no mercy to those who seek to invade those rights.

We communicate that message in this case …”

In this case before me, Tshepiso and her family in particular, the community of Wattville, as well as the society in general, have a right to be protected from a fearful life, fearing for their lives. This court must speak, as a protrusion of society, the language that society speaks, to wit: “Freedom for all.” Not freedom for some.

[59] In S v Khiba supra, Eksteen J, said the following after referring to decisions wherein the death sentences were imposed, at page 4 paragraph to page 5 paragraph c:

“These decisions seem to reflect the gravity with which this Court regards murderous attacks on victims in their own homes and more particularly isolated farms. Sentences of death have been confirmed not only when the victims were old and frail but also where they were ablebodied and strong. So, too, even where the intention was dolus eventualis, and where the appellants have been comparatively young, and even first offenders. The reasoning in these cases, as exemplified in the dictum from Shabalala’s case quoted above, is compelling and commends itself to any reasonable mind. The present case is but one more in this sad category. The deceased and his wife lived alone on their farm and had done so for 40 years. This must have been common knowledge in the area, and was certainly known to the appellant and his accessories who lived on neighbouring farms. Their plan of attack was premeditated and carefully laid, as was evidenced by their abortive foray on the Saturday evening. It was carried out with violent determination and persistence, and resulted in the death of the hapless deceased in his own farmyard while he was about his farming activities. …

On consideration of all these mitigating and aggravating factors the latter seem to me to far outweigh the former. Seen in the context of the recognised objects of punishment, the interests of society seem to me to demand that deterrence and retribution must outweigh considerations of reformation. I therefore share the view of the trial Judge that this is one of those exceptionally serious cases where the death sentence is imperatively called for and where it is the only proper sentence.”

These comments of the Supreme Court of Appeal, as regards the removal of children from their homes and/or playgrounds, taken to isolated areas and brutally abused and killed, generally by persons known to these children, are as relevant today as they were then, save for the form of sentence.

[60] Having regard to the evidence of Coetzee, accused is not the person who one can easily conclude that simply because of his youth, rehabilitation is a real prospect in the ordinary course, even after a long period of imprisonment.

[61] In my view, it cannot be said that the circumstances in this case call for a departure from the prescribed sentence. After careful consideration of all relevant factors, the court is satisfied that the following represent a just, fair and informed pronouncement on sentence:

1.On count 1, of premeditated murder, accused is sentenced to imprisonment for life.

2.On count 2, of kidnapping, the accused is sentenced to 8 (eight) years imprisonment.

The sentence on count 2 is to run concurrently with the sentence in count 1.

The accused is declared unfit to possess a firearm.

DM THULARE

ACTING JUDGE OF THE HIGH COURT

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