IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case Number: SS 17/2016

In the matter between

THE STATE

and

HENRI CHRISTO VAN BREDA

HEADS OF ARGUMENT ON SENTENCE BY THE STATE

A. INTRODUCTION

1. The Accused in this matter has been convicted by this Honourable Court
of the planned murders of his parents, Martin (“Martin”) and Teresa van
Breda (“Teresa”), and his brother, Rudi van Breda (“Rudi”) as well as the
attempted murder of his sister, Marli van Breda (“Marli”). The Accused
was also convicted of defeating or obstructing the administration of justice.

2. The crimes were committed on 27 January 2015 at 12 Goske Street, De

Zalze Estate, Stellenbosch. This was the family residence.
 2

3. It is humbly submitted that the factors to be considered are trite as set out
in the trilogy listed in S v Zinn 1969 (2) SA 537 (A), i.e. the crime itself,
the personal circumstances of the Accused and the interests of society.

THE CRIMES ITSELF

4. It is submitted that it is common cause that the crimes the Accused has
been convicted of are very serious in nature.

Minimum sentence:

5. This is highlighted by the applicable penalty for planned murder, i.e. life
imprisonment.

6. In terms of the provisions of Act 105 of 1997 a minimum sentence of life

imprisonment must be imposed except if the Court finds substantial and
compelling circumstances justifying a deviation from the prescribed
sentences.

7. In the judgment of S v Malgas 2001 (1) SACR 469 (SCA) at 476f – 477f
it was found that, when dealing with certain types of crimes, it is no longer
“business as usual” and that minimum sentences should “not to be departed
from lightly and for flimsy reasons which could not withstand scrutiny.
Speculative hypotheses favourable to the offender, maudlin sympathy,
aversion to imprisoning first offenders, personal doubts as to the efficacy
of the policy implicit in the amending legislation, and like considerations
were equally obviously not intended to qualify as substantial and
compelling circumstances. Nor were marginal differences in the personal
circumstances or degrees of participation of co-offenders which, but for the
 3

provisions, might have justified differentiating between them. But for the
rest I can see no warrant for deducing that the legislature intended a court
to exclude from consideration, ante omnia as it were, any or all of the many
factors traditionally and rightly taken into account by courts when
sentencing offenders.”

8. This approach was confirmed in the judgment of S v Matyityi 2011 (1)

SACR 40 (SCA) where the Supreme Court of Appeal found, nine years
after the Malgas judgment, crime is still on the rise despite the minimum
sentence legislation.

9. The Court then confirmed and stressed the relevance of the minimum
sentence legislation at p 53 paragraph 23:
“Despite certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues to be alarming.
It follows that, to borrow from Malgas, it still is 'no longer business as
usual'. And yet one notices all too frequently a willingness on the part of
sentencing courts to deviate from the minimum sentences prescribed by the
legislature for the flimsiest of reasons - reasons, as here, that do not survive
scrutiny. As Malgas makes plain, courts have a duty, despite any personal
doubts about the efficacy of the policy or personal aversion to it, to
implement those sentences. Our courts derive their power from the
Constitution and, like other arms of State, owe their fealty to it. Our
constitutional order can hardly survive if courts fail to properly patrol the
boundaries of their own power by showing due deference to the legitimate
domains of power of the other arms of State. Here Parliament has spoken.
It has ordained minimum sentences for certain specified offences. Courts
are obliged to impose those sentences unless there are truly convincing
reasons for departing from them. Courts are not free to subvert the will of
 4

the legislature by resort to vague, ill-defined concepts such as 'relative

youthfulness' or other equally vague and ill-founded hypotheses that
appear to fit the particular sentencing officer's personal notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundational to the rule of law which lies at the heart of
our constitutional order.”

10.The “Malgas-approach” is still the approach to be followed with matters

listed in Schedule 2 of Act 105 of 1997. It is stated in the judgment of
Director of Public Prosecutions, Gauteng v Tsotetsi 2017 (2) SACR 233
(SCA) at p 242 paragraph [27]:
“As held in Malgas, confirmed in S v Dodo, and explained in S v Vilakazi,
even though 'substantial and compelling' factors need not be exceptional,
they must be truly convincing reasons, or 'weighty justification', for
deviating from the prescribed sentence. The minimum sentence is not to be
deviated from lightly and should ordinarily be imposed.”

11.It is against this background that this Honourable Court ought to approach
sentence in the matter at hand.

The crimes

12.The following is submitted as aggravating circumstances:

12.1. The Accused was, on his own evidence, part of a close-knit, loving
family who played board games, went on vacation and regularly
spent time together;

12.2. The family had no financial problems and thus they all had bright
 5

futures ahead of them;

12.3. The deceased and the remaining victim were most viciously attacked
in their own home by someone they trusted and loved;

12.4. The Accused chose to execute the attack on his father, mother,
brother and sister at a time when they were most vulnerable, that
being, after they had gone to bed;

12.5. The crimes were planned in that the accused armed himself with a
lethal weapon, an axe. This left his victims particularly defenseless;

12.6. The fact that Marli survived the attack is not due to any action or
mercy of the Accused but rather a miracle;

12.7. As the Accused did not see fit to play open cards with the Court there
is no apparent motive for the killing of his family. The court is
therefore been denied the opportunity of fully answering the
question “ Why did he do it?”.
Vide : S v Moosa 2009 JDR 1039 (WCC)

12.8. The Accused’s lengthy conversation with the emergency services

knowing that MArli is still alive, is indicative of the cold
bloodedness of his actions.

12.9. The crimes were committed without conscience. No remorse has

been demonstrated by the Accused.
 6

The victims

13.Is respectfully submitted that the deceased as persons should also be

considered as stated in S v Mokgiba 1999 (1) SACR 534 (O) at 551 where
the Court remarked as follows:
“…`n verkeerde benadering wat besig is om in `n toenemende mate pos te
vat in gevalle waar soortgelyke sake verhoor word. Dit gebeur al hoe meer
en meer dat die optrede van misdadigers en/of potesieel misdadige persone
met simpatie bejeën word en dat min of geen simpatie betoon word aan die
slagoffers of potensiële slagoffers van sodanige persone nie.”

14.The Court is reminded of the testimony of Mr Andrè van Breda the brother
of the deceased which described the deceased, the remaining victim and
the family prior to the incident:

14.1. Martin van Breda

 He was a highly intelligent man who was very successful in his

business ventures.

 He conducted his affairs in an honest, ethical way.

 He created a successful life for him and his family by using his
knowledge and skills.

 He was well respected and loved by his colleagues, friends and

family.
 7

 Martin clearly loved and trusted the Accused. This is evident by the
fact that he clearly did not expect to be attacked by his son.

14.2. Teresa van Breda

 She was a loving mother who cared for her family and wanted the
best for them.

 Her love for her family was so deeply rooted that the family returned
to South Africa because she wanted to be closer to them.

 One can only imagine what went through her mind when she must
have realized shortly before being attacked that the attacker was her
own son who she raised and loved.

14.3. Rudi van Breda

 Rudi was an intelligent, young man at the prime of his life.

 He was at the verge of completing his engineering degree.

 He was most brutally attacked by the brother who shared a room

with him when he was in South Africa.
 8

14.4. Marli van Breda1

 She was merely a sixteen year old vulnerable school girl at the
time of her attack.

 She is an intelligent young woman who now has to grow up alone

knowing that her brother brutally killed her parents and sibling.

 She has lost her family.

 She has lost her home.

 She has lost everything. Nothing will ever be the same for her.

 The medical evidence portrays, despite her age, she defended

herself and tried to ward off the attack vigorously.

 Despite the fact that she has no memory of the incident, she has
to go through life with the knowledge that her brother killed her
whole family and also tried to kill her.

 The unwelcome media attention she has received since the

incident is only a fraction of what this young girl had to go
through since her parents and sibling were murdered at the hands
of her brother. A curator had to be appointed by the Courts to

1
The State has consulted with Marli and her curator, Adv Buikman, SC. In respect of the State not
calling Marli or handing in a victim impact statement in aggravation of sentence, we have considered her
privacy. Marli has been haunted by the media and we believe that a victim impact statement will violate
her right to privacy and progress that has been made in her recovery.
 9

protect her interests and privacy even though she is legally an

adult.

PERSONAL CIRCUMSTANCES OF THE ACCUSED

15.Accused has no previous convictions.

16.It is humbly submitted that the only fact in favour of the Accused is that he
was 21 years old at the time of the commission of the offences.

17.It is conceded that the relative young age of an Accused could be seen to
be a factor in mitigation of sentence.
Vide : S v Lehnberg en `n Ander 1975 (4) SA 553 (A) at 561B

18.In S v Dlamini 1992 (1) SA 18 (A) at p 29 I – 30 B Nicholas AJA upon

considering the judgment in S v Lehnberg en `n Ander (supra) found
relating the mitigating effect of an offender’s age:
“…a teenager is to be regarded prima facie as immature and on that
ground extenuating circumstances could be found, unless it appears that
the viciousness of his deed rules out immaturity. In particular, the youth
of a teenager would be extenuating if other factors influenced his
personality by reason of his youth. This would mean also that a person
of 20 years or more can show, by acceptable evidence, that he was
immature to such an extent that his immaturity can serve as
extenuation.” (Our underlining)

19.It is argued that the youthful age of an Accused is, with respect, not
enough to prevent a Court from imposing a sentence of imprisonment.
 10

20.In the judgment of Director of Public Prosecutions, Kwazulu-Natal v P

2006 (1) SACR 243 (SCA) at 254F Mathiyane JA, in considering an
appeal on sentence of a child offender who was 12 years old at the time
of the commission of the crime (the vicious murder of her grandmother)
and 14 years at the time of the appeal stated that: “If I had been a Judge
of first instance I would have seriously considered imposing a sentence
of imprisonment.”

21.The Learned Judge continued and found at p249I – 250A that: “The
accused, in my view, and in spite of her age and background, acted like
an 'ordinary' criminal and should have been treated as such. She had no
mental abnormalities and, something the Judge had noted, was able to
pass herself off and in many respects acted like someone of about 18
years of age. That is what at least one witness thought her age was. All
the guesswork about her mental and physical age in contradistinction to
her actual age pales into insignificance.” (My underlining)

22.Long term imprisonment, when it is the only appropriate sentence given

the circumstances of the crimes can outweigh the personal and/or
mitigating circumstances of an Accused.

23.In the judgment of S v Van der Westhuizen 2011 (2) SA 26 (SCA) at p 66

paragraph [93] the Court found: “If only the mitigating factors and the
interests of the appellant are taken into account, one could conceivably
arrive at a sentence that does not amount to long-term imprisonment.
However, if only the aggravating circumstances are considered, it is
evident that a sentence of life imprisonment would potentially have been
appropriate.
 11

[94] The crime that the appellant committed is abhorrent and the enormity
of it can hardly be over-emphasised.”

24.No evidence has been presented to the effect that the Accused was
emotionally immature or addicted to drugs at the time of the offence.
Neither was any evidence presented to show that the Accused or his family
experienced any particular emotional or socio-economic problems.

25.To the contrary, the Accused is described as a fit, healthy young man and
his family as loving and close knit.

26.It is submitted that the relative youthfulness of the Accused and the fact
that he is a first offender is not enough to warrant a lesser sentence than
imprisonment for a longer period of time.

INTERESTS OF THE COMMUNITY

11. It is conceded that the traditional aims of punishment have been transformed
by the Constitution, but it is argued that there are certain crimes that
necessitate a custodial sentence (and lengthy ones) and such a sentence
should thus be imposed as the only appropriate sentence.
Vide : S v M (Centre for Child Law as Amicus Curiae)
2008 (3) SA 232 (CC) at p243A – B and p253 H – I
Director of Public Prosecutions, Kwazulu-Natal v P
(supra)
S v Van der Westhuizen (supra)

27.It is humbly submitted that, in the 20 years since the Constitution,

deterrence has indeed become the most important aspect of sentencing in
 12

this country – not only of a particular offender but also of likeminded

individuals.
Vide : S v Van Loggerenberg 2012 (1) SACR 462 (GSJ)

28.In the judgment of S v Van Loggerenberg (supra) at p 464 paragraph

[6] Willis JA describes the purposes of sentence when considering the
interests of society as follows:
“In addition to what I have said in the opening lines of this judgment,
sentence also has five important functions:
(i) it must act as a general deterrent, in other words, it must deter
other members of the community from committing such acts or
thinking that the price of wrongdoing is worthwhile;
(ii) it must act as a specific deterrent, in other words, it must deter
this individual from being tempted to act in such a manner ever
again;
(iii) it must enable the possibility of correction, unless this is very
clearly not likely;
(iv) it must be protective of society, in other words, society must be
protected from those who do it harm;
(v) it must serve society's desire for retribution, in other words,
society's outrage at serious wrongdoing must be placated.

Clearly, in this case a lengthy period of imprisonment is warranted, in

order to serve each of these five functions. I have no doubt that the
community as a whole cries out aloud for a lengthy and severe sentence
in a case such as this.”

29.It is, with respect, trite law that to sentence an offender too lightly can be
just as wrong as sentencing him too heavily.
 13

Vide : S v Holder 1979 (2) SA 70 (A)

30.Similarly the approach that too lenient sentences may lead to an

undermining of the respect the public has for the legal system and thus they
may well take the law into their own hands is also nothing new. It is trite
law that by imposing appropriate sentences the Courts thus regulate order
and stability in the community.
Vide : S v Hougaard 1972 (2) SA 70 (K)
S v Moosa (supra)

PROPORTIONALITY

31.It is submitted that the proportionality test as set out in S v Dodo 2001 (3)
SA 382 (CC) at 404I – 405E must also be considered in deciding on an
appropriate term of imprisonment.

32.Specific reference is made to count 4 the attempted murder of Marli van

Breda.

33.It is argued that a sentence similar to counts 1 – 3 ought to be imposed for

the following reasons:

33.1. The attack on her occurred during the same incident, using the same
weapon and with the same intent;

33.2. The injuries she sustained were similar in nature and location as the
deceased;
 14

33.3. The medical evidence related to her injuries (Exhibit “BBB12”) and
prognosis (Exhibit “HHH”) shows that her injuries were not just
potentially fatal but are usually fatal;

33.4. The Accused remained on the telephone with the emergency

services for a lengthy period of time knowing she is still alive and
seemingly in no hurry to get her medical attention. The Accused also
did not attempt to assist/comfort her.

33.5. The attempt on her life is hardly distinguishable from the murders.
Marli’s survival is a miracle. The Accused likely did not foresee her
surviving the attack.

34.Under the circumstances it is submitted that a longer term of imprisonment

than is usually imposed for a crime of attempted murder would not be
inappropriate.
Vide : S v Moosa (supra)

CONCLUSION

35.Having regard to all the facts and circumstances of the matter at hand, it is
the respectful argument of the State that:

35.1. The seriousness of the crimes and the interests of society outweigh
the personal circumstances of the Accused by far; and

35.2. There are no substantial and compelling circumstances

justifying a deviation from the prescribed sentences.
 15

SIGNED AT CAPE TOWN ON THIS 5th DAY OF JUNE 2018

S M GALLOWAY AND M BLOWS

SENIOR STATE ADVOCATES
DIRECTOR OF PUBLIC PROSECUTIONS: WESTERN CAPE

To: The Hon Mr Justice Desai

Judge’s Chambers
High Court
Cape Town

And To: Adv P Botha

Counsel for Accused
 16

BIBLIOGRAPHY

1. S v Zinn 1969 (2) SA 537 (A)

2. S v Malgas 2001 (1) SACR 469 (SCA)
3. S v Matyityi 2011 (1) SACR 40 (SCA)
4. Director of Public Prosecutions, Gauteng v Tsotetsi 2017 (2) SACR 233
(SCA)
5. S v Moosa 2009 JDR 1039 (WCC)
6. S v Mokgiba 1999 (1) SACR 534 (O)
7. S v Lehnberg en `n Ander 1975 (4) SA 553 (A)
8. S v Dlamini 1992 (1) SA 18 (A)
9. Director of Public Prosecutions, Kwazulu-Natal v P 2006 (1) SACR 243
(SCA)
10.S v Van der Westhuizen 2011 (2) SA 26 (SCA)
11.S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)
12.S v Van Loggerenberg 2012 (1) SACR 462 (GSJ)
13.S v Holder 1979 (2) SA 70 (A)
14.S v Hougaard 1972 (2) SA 70 (K)
15.S v Dodo 2001 (3) SA 382 (CC)