Brandt v State

Supreme Court of Appeal -513/03 Hearing date: 9 November 2004
  Judgment date: 30 November 2004
Sentence – s51(3)(b) of the Criminal Law Amendment Act 105 of 1997 interpreted – suitability of imprisonment for life as a sentencing option for child offenders considered

Media Summary of Judgment

On 30 November 2004 the SCA upheld an appeal by Jan Hendrik Brandt against the sentence of life imprisonment imposed on him for a murder he committed when he was 17 years and 7 months old and substituted in its stead a sentence of imprisonment for a term of 18 years. The appellant had been convicted in the High Court at Grahamstown of three charges: murder, robbery with aggravating circumstances and attempted robbery. Applying the minimum sentencing legislation (Act 105 of 1997) the trial judge sentenced him to life imprisonment. An appeal to the full court of the Eastern Cape against sentence was unsuccessful and with special leave of the SCA he appealed to it.

The appellant had pleaded guilty at his trial. He stated that he had become a member of a satanic coven in Port Elizabeth. On 12 June 2000 he had journeyed to his parents’ home in Hofmeyr with the express purpose of killing them as he believed that doing so would elevate him to the status of a high priest within the coven. He had earlier specifically purchased a knife in Cradock for that purpose. He was unable to go through with the deed. Having consumed brandy and dagga, he turned his attention to the deceased a 75 year old neighbour. He entered her home on the false pretext that he was there to borrow recipes and dealt her a single fatal blow to her neck with the knife. After trying to create the impression that she had committed suicide, he removed her car keys, the sum of R300 and a portable radio. When he went to the garage her car was not there.

The principal issue in the appeal was the application of the minimum sentence legislation to offenders under 18. An issue on which high courts have given conflicting decisions. The SCA stated that the traditional aims of punishment of child offenders have to be re-appraised in the light of the Constitution as well as key international instruments such as the United Nations Convention on the Rights of the Child, the Riyadh guidelines, the Beijing Rules and the African Charter on the Rights and Welfare of the Child. In interpreting the legislation, the SCA held that unlike adult offenders for whom the starting point is the minimum sentence prescribed by the legislature, for child offenders the sentencing court has discretion. It may impose the statutorily prescribed minimum sentence in the exercise of that discretion, but it is not obliged to do so. If it does it is required to enter its reasons for doing so on the record of the proceedings. In arriving at a sentence however a court must afford appropriate recognition to the fact that the legislature has ordained minimum sentences for offences of that kind.

In arriving at a sentence of 18 years’ imprisonment the SCA took into consideration that the appellant was raised in an atmosphere of social and emotional deprivation and that his childhood was characterised by neglect, substance abuse, admission to a place of safety and an industrial school, followed by two attempts at suicide. Against those factors, which were strongly mitigating had to be balanced an offence that was particularly heinous. The deceased an elderly lady who was known to the appellant had been killed by him in the sanctity of her home during the course of a robbery to avoid detection.