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IN GAUTENG SOUTH HIGH COURT

JOHANNESBURG

CASE NO: SS114/00

DATE: 07/02/2001

In the matter between

THE STATE

and

JAN ADRIAAN VAN LOGGENBERG.....................The Accused

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JUDGMENT ON SENTENCE

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WILLIS J:

[1] It is well established in these courts and reflects the accumulated wisdom of many generations that sentence should fit the criminal as well as the crime, be fair to the State and to the accused and be blended with a measure of mercy. It must also reflect the interests of society.

[2] The accused is 27 years of age. He never knew his father. His mother died when he was very young, approximately 14 years old. She died of an overdose of medication. His mother was not the one who took primary responsibility for bringing him up. This was left to his maternal grandparents. It is clear that he has for many years had a serious problem with drug abuse. Before the time of his most recent arrest he was employed at a forklift company as a medical assistant earning R300,00 per week. His highest standard of education was Std. 7.

[3] The accused has a string of previous convictions for theft, housebreaking, assault and drug related offences. On his own version of events, he was released from prison only two days before the murder of Mrs Burger. Clearly the previous convictions of housebreaking, assault and theft are relevant to the overall sentence to be given in this case.

[4] The accused's life has been a tragedy with tragic consequences. I accept in his favour that his drug problem played a major role in the commission of his crimes. The accused had been convicted of two counts of murder; two of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977; one count of kidnapping and one count of malicious injury to property.

[5] These are very serious crimes indeed. Both the victims were innocent. Both were elderly. Both died gruesome deaths. The killings were random and the victims defenceless. Mrs Burger was murdered in the sanctity of her own home. Two families have been severely traumatised by these murders. In the case of Mrs Burger, a child would obviously have been severely traumatised by discovering her grandmother dead in a cupboard. These crimes were deliberate, planned and, in the case of Mrs Burger, clearly premeditated. They were ruthlessly executed. Crimes such as these affect society at the core of its being. Ordinary citizens know that they cannot go about their ordinary every day activities without fear for their safety.

[6] 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.

[7] While each of us is responsible for his or her acts, it has to be accepted that each of us is the product of his or her times and circumstances. I accept that the accused has had a dreadful life and that his background substantially shaped his personality such that he was capable of committing these crimes. It is clear, however, from the accused's previous convictions that he is a recidivist, that is a person who reverts to crime (and with increasing severity), despite opportunities for reform and rehabilitation.

[8] This case raises the most complex moral and intellectual issues involving sentencing. It is common cause that in terms of section 51 of the Criminal Law Amendment Act No. 105 of 1997 life imprisonment is stipulated for both crimes of murder their have been planned and/or premeditated, their having been committed in the course of committing a crime of robbery with aggravating circumstances and, in the case of the murder of Mr Halgryn, having been committed in the furtherance of a common purpose.

[9] Furthermore, in terms of the same section of that Act, minimum sentences of 15 years' imprisonment are provided for the robberies with aggravating circumstances. I can only impose lesser sentences if I am satisfied that there are substantial and compelling circumstances which justify such a course.

[10] Life imprisonment is a severe sentence. Our Constitution reflects our ideals as a society. Among these ideals is that freedom is a most precious condition of men and women. Contrasted against this, there is an ancient adage: salus populi suprema lex, the safety of the people is the supreme law. However sorry I may feel for the accused, however much I may accept that his life circumstances shaped his gruesome deeds, however forlorn my view of the accused as a recidivist may be, I should be failing in my duty as a representative of the judicial pillar of the sovereign state if I did not give a judgment designed to ensure that no member of our society ever falls victim to the accused's murderous tendencies again. This consideration overrides all others.

[11] I have given anxious consideration to the accused's life history but in view of society's interests in being protected from the accused I think that life imprisonment is appropriate. I do not think that the accused's life history, balanced against society's interests, permits a conclusion that there are substantial and compelling circumstances which justify a lesser sentence. Even without the provisions of section 51 of the Criminal Law Amendment Act No. 105 of 1997, a sentence of life imprisonment would in all probability have been imposed.

[12] In the case of S v Tcoeib 1996 (1) SACR 390 (NMS) our late Chief Justice Mohamed (then acting in his capacity as chief justice of Namibia), eloquently as usual, held that it would be wrong to extinguish any flicker of hope for an accused that he would ever be released on parole. In that case he referred with apparent approval to the European case Thynne Wilson & Gunnell v The United Kingdom EHRR 666 in which it was accepted that life imprisonment is appropriate where there is a very real risk of repetition at 669. He also referred with apparent approval to the South African case of S v Mdau [1990] ZASCA 126; 1991 (1) SA 169 (A) where similar views were expressed. He held that as there was provision in appropriate circumstances for parole to be given, life imprisonment in the circumstances approved in Thynne Wilson & Gunnell v The United Kingdom case (supra) could be the proper sentence.

[13] It is trite that whatever particular provisions there may be in any statute, the executive enjoys the prerogative of parole. This we inherited from our common law. The situation is in any event, currently regulated under the provisions of the Correctional Services Act No 111 of 1998. Although life imprisonment is the effective sentence that I shall impose in this case, the executive may in circumstances it considers appropriate release the accused on parole.

[14] Taking all the above into account, the following are the sentences which I impose:

Count 1, Kidnapping: 3 YEARS' IMPRISONMENT.

Count 2, Murder: LIFE IMPRISONMENT.

Count 3, Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977: 15 YEARS' IMPRISONMENT.

Count 4, Malicious injury to property: 3 YEARS' IMPRISONMENT.

Count 5, Murder: LIFE IMPRISONMENT.

Count 6, Robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977: 15 YEARS' IMPRISONMENT.

It is ordered that the sentences imposed on counts 1, 2, 3, 4 and 6 are to run concurrently with the sentence on count 5. In other words, the effective sentence is thus life imprisonment.

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