The Verdict (29 April 2008)
The appellants appeared in the Regional Court, Pretoria facing two charges, namely murder and assault with intent to do grievous bodily harm. They pleaded not guilty to the charges. After evidence was adduced, the first, third and fourth appellants were found guilty as charged, and appellant no 2 (F DU PREEZ -2ND APPELLANT) was convicted of murder and common assault. After evidence was led in mitigation of sentence each of the appellants was sentenced as follows:
- count 1 – murder: twelve years imprisonment;
- count 2 – assault with intent to do grievous bodily harm (in respect of 1,3 and 4) and common assault in respect of no 2: two months imprisonment.
- The Court ordered that the sentence imposed on count 2 will run concurrently with the sentence imposed on count 1.
Lies and Arrogance
Pretoria regional court magistrate Len Kotze, who called Christoff Becker a “self-confessed liar”. He dismissed Becker’s evidence as lies and referred to the 19-year-old’s “astounding arrogance”.
A shocked silence followed Kotze’s verdict of guilty of murder and yet another guilty verdict on an assault count. The four – Becker, Frikkie du Preez, Gert van Schalkwyk and Reinach Tiedt (the last three all 18 years of age) – sat stony-faced while listening to the verdict.
Their parents, friends and family members in the gallery could be heard gasping in horror as Kotze gave reasons for his verdict. A short break followed the findings, and friends and family rushed to the dock to embrace the accused.
While most of the family members held back tears, several of their friends cried.
From the outset of the trial, the accused have exuded confidence bordering on arrogance. However, it was a different story on Tuesday June 15 2005 at their sentencing . Their confidence clearly ebbed away with each word uttered by the magistrate.
The four, who have always dressed in the latest fashion, got a glimpse of life behind bars when they had to spend the lunch break in the holding cells. They appeared solemn after returning to court.
They were freed on bail later in the afternoon, after Kotze referred the matter to the High Court for sentencing. He said the four could face life imprisonment and the regional court did not have the jurisdiction to sentence them. He agreed to extend their bail, but increased it from R2 000 to R10 000.
The state opposed the extension of their bail, saying it was a racially inspired murder which had caused much public outcry. In extending their bail, Kotze said he agreed that this was a racial incident which inflamed the emotions of the community.
“This was a terribly cruel and cowardly murder which you committed. It is with hesitation that I extend your bail,” he told them.
Bail conditions strict
As part of their bail conditions, the four may not leave the magisterial district or visit any nightclub or place of entertainment.
The defence pointed out that it may take more than a year before they will be sentenced, as the High Court’s roll was congested. Kotze referred to this and said the four were still young.
It could be to their prejudice if they had to stay in custody for such a long time.
The courts findings
The court found that the unidentified black man they assaulted in the early hours of December 1 2003 in Moreleta Park was the same person found dead by the police. Kotze found that the four kicked, stabbed and beat the man. They were found guilty on the doctrine of common purpose to commit murder.
Kotze said they severely assaulted the man and that even the dumbest person would have foreseen that he could have died of his injuries. The four denied guilt on a charge of murder and another charge of assault. Regarding the murder.
Becker, who was the only one of the accused to testify, said they had seen black people entering the park that night and thought they were burglars.
Becker and his co-accused were 16 at the time and still at school. He said the police came to their school prior to the incident and asked pupils to assist them in curbing crime. Becker said their aim that evening was to help the police and to arrest the man.
The foursome earlier denied that they assaulted another unidentified man in Constantia Park, because their cellphone record showed that only 14 minutes expired from their leaving Hatfield until they got to the murder scene in Moreleta Park. The defence argued that this was too little time in which to assault someone and to drive on to the park.
But Kotze found it was possible because the roads were empty at that time of night. He also found that Becker, who was driving his father’s BMW, drove extremely fast.
In conclusion, The Waterkloof four are guilty of committing “an extremely cruel” murder.
The appellants immediately after their sentence applied for leave to appeal against both conviction and sentence which was granted by the trial Court.
In the Heads of Argument, the appellants’ Counsel criticised the evidence of the State witnesses and submitted that the State has failed to prove its case, on both charges, against the appellants. In its detailed judgment, the trial Court analysed the evidence led, drew certain conclusions, accepted the version of the State witnesses and rejected the evidence of the first appellant and convicted the appellants as mentioned earlier.
He also pointed out that there were material contradictions in the evidence of State witnesses, and that Mr Heinrich von Landsberg had some liquor which might have affected him.
The State witnesses testified in detail how this offence was committed and there are no basis on which the trial Court could have rejected their version. On the other hand, only the first Appellant testified, and the other Appellants namely 2, 3 and 4th, did not testify despite the fact that there was direct evidence which implicates them in the offence in question.
As far as the murder charge is concerned, the defence Counsel submitted that the corpse of the person on whom the post-mortem examination was performed, and which was referred to in the trial Court, is not that of the man who was assaulted by the appellants on the night in question. The defence Counsel further submitted that, inter alia, lack of facial injuries and blood on the scene supports the above-mentioned submission.
During the cross-examination of Mr Heinrich von Landsberg, Counsel for accused one and three, said the following: “Die beskuldigdes, beskuldigde 1 en 3, ontken dat hulle hierdie oorledene aangerand het met die opset om hom te dood.”
Accused no 1, (Christoff Becker) who is the only one of the accused to testify, testified amongst other things that the man they assaulted was much bigger than they. Defence Counsel submitted that the deceased referred to in this case was much smaller and therefore was not the person that was at the park and had an altercation with the appellants on the day in question.
Superintendent Harris, one of the investigating officers, testified that he was with both Reinhardt and Heinrich von Landsberg at the scene of the crime, at the park. He showed them the photos of the deceased and they identified him as the person who was assaulted by the accused on the night in question.
The above-mentioned version of the first appellant was never put to the Von Landsberg brothers. In fact, the direct evidence of Heinrich and Reinhardt von Landsberg was never challenged in any way. The absence of blood on the scene, at the time of discovery of the corpse, could possibly be as a result of rain on that night. As mentioned earlier Mr Reinhardt van Landsberg testified that it rained on that particular night.
The absence of injuries on the face which are consistent with the assault meted out to the victim at the park, was not fatal to the State’s case. The events at the park, on the night in question, unfolded in quick succession and in the evening, consequently, the State witnesses could have made a mistake about the nature and extent of the assault on the face. That fact alone cannot justify a conclusion that their entire evidence should be rejected.
Another issue raised in the heads of argument by the appellants’ Counsel is lack of intent to murder. The said issue before us during oral argument was not pursued with vigour. When one takes into account the weapons that the appellants used, and the fact that they failed to get him to the hospital despite the fact that he was injured and he requested them to assist him, they had intention to murder him. When he asked for medical assistance, accused no 2 instead of assisting the victim, he kicked him. Furthermore, the first appellant, when he telephoned the police, he gave them wrong information. If he had given them the correct information, their victim could possibly have survived. Appellants 1 and 3 argued about whose fault it would be if the man died. They argued because they realised that the man was seriously injured and that his wounds could possibly cause his death. Their actions were so brutal that they realised that the victim could die from the injuries he sustained.
It also noted that murder is a serious offence and that the deceased died in a cruel manner. The trial Court also noted that after being seriously injured, the deceased asked for assistance to get medical attention, and instead of helping him, one of the accused again kicked him. Accused no 2, according to the trial Court, informed the probation officer that he kicked the deceased to determine if he is “alright”. The trial Court also noted that none of the accused showed any remorse.
Van Schalkwyk was “totally confused” because more than two years had passed and he was convinced they had left their victim alive in the park.
Tiedt and Van Schalkwyk agreed that their victim was not the man whose body the police found in the park a day after they assaulted a man. That man, whose body was never claimed, bled to death because of a deep stab wound in the leg.
The police also found a stolen radio in the park.
The Waterkloof 4 were sentenced to 12 years imprisonment each, five years after the crime was committed. Because of the extreme brutality of the assault, there was much public and media outcry for a harsh sentence. However the law differentiates between adults and minors for sentencing purposes. Taking into account that the perpetrators were juvenile (also first time offenders), different sentencing laws had to be followed.
Quoting an article by Zita Hansungule, who works at UP’s Centre for Child Law: “In 2009 the Centre for Child Law had challenged the constitutionality of the Criminal Law (Sentencing) Amendment Act which provided that minimum sentences should apply to 16 and 17 year-old offenders.
The High Court found that applying minimum sentences to these offenders was not in line with the Constitution which provides that children have the right not to be detained except as a measure of last resort, and then, if detention is unavoidable, only for the shortest appropriate period of time. The High Court held that in cases pertaining to minors, the courts must consider all available sentencing options, especially non-custodial sentences, before considering detention.
The Constitutional Court was approached to confirm the decision of the High Court. It confirmed the decision and held that the Constitution envisages that detention of young offenders may be possible, but it mitigates the circumstances of detention. It confirmed that for minors, detention is not a first or intermediate resort but a last resort. The Court held that each individual case needs to be examined on an individualised basis so that an appropriate sentence can be found. It stated that ‘legislation cannot take away the right of 16 and 17 year olds to be detained only as a last resort, and for the shortest appropriate period of time, without reasons being provided that specifically relate to this group and explain the need to change the constitutional disposition applying to them’.
These judgments confirmed that children should be treated differently to adults in sentencing, no matter how old they are. Both courts were of the view that children are less physically and psychologically mature than adults, more susceptible to pressure from others and more receptive to rehabilitation than adults.”
Taking this into account the Waterkloof 4 appeared to be sentenced fairly as this is about the maximum that a juvenile will face for a single murder charge.
Were four Afrikaner kids convicted with the wrong corpse?
The defence team was convinced the State had the wrong body – but nobody tried to find the real victim.
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