‘Why did Van Breda blow chance of lighter term?’
Siraj Desai says he'll consider axe killer's bid to appeal, but wonders why lawyer didn't speak up in the past
Judge Siraj Desai repeatedly asked in the past for reasons to give Henri van Breda a lighter sentence after he was convicted of axing his parents and brother to death.
But none was forthcoming.
Yet Van Breda was back in court room nine at the High Court in Cape Town on Tuesday, making an application for leave to appeal the judgment and the sentence.
Although Desai said that out of “kindness” he would consider the defence’s application for leave to appeal both the judgment and sentence until Monday, he once again posed a question that dangles without an answer: Why, when given the chance, did Van Breda’s advocate not proffer a single reason for a sentence shorter than life when he had the chance?
“I asked you several times,” said Desai on Tuesday, “to offer up information in mitigation of sentence. I was asking for a peg on which to hang my coat but I was faced with a situation where there was no argument put forward at all that could have ameliorated the sentence.”
But, replied defence lawyer Piet Botha: “Someone who is saying they are innocent cannot express remorse or anything else because to do so would be to accept that he is not innocent. I would love to have given more than I did, but I could not because those were the instructions of my client.”For 67 days over the course of more than a year, the gruelling trial had Botha and the rest of Van Breda’s legal team putting up a major battle against the meticulous work of prosecutor Susan Galloway and her team.
It is also likely that the eggs in the legal basket drained the Van Breda family trust in excess of R5m.
Now, however, with the possibility that the judgment will not make its way to a higher court on appeal, Botha is possibly left scrambling for a lighter sentence.
In his heads of argument on Tuesday, he said that Desai had “erred and misdirected himself by imposing a sentence that is shockingly excessive and inappropriate” and that the applicant’s “young age” and “clean record” should be taken into account.
Botha also focused on the question of whether the crime was premeditated since this would come to bear on the sentence.
He said: “The only evidence that the state proffered in its argument that the crime was premeditated was that someone had to fetch an axe and knife downstairs before carrying out the murders. But, case law says otherwise. There are cases of someone even travelling 300m to obtain a weapon and it is still not judged as being premeditated.”
Galloway reiterated the state’s case, however, saying that the way in which the two weapons were procured, and the manner in which the axe had been aimed so deliberately at the heads of the victims, proved clear and planned intent.
Although Botha took the court through every piece of evidence in a style that Galloway called “nitpicking”, it was the issue of an “ear” witness account that stood out.
Botha said the Van Bredas were clearly a happy family and no motive therefore could be defined to explain why his client would have murdered his parents and brother.
He undermined the evidence of a key witness for the state, neighbour Stephanie Op’t Hof, who described how she had heard a major fight among males taking place at the residence prior to the murder.Botha said it was “improbable” that an argument could have endured for “a full two hours” (as per the testimony) and questioned why she had not reported it to the security guards if it was so extreme.
He added: “The fact that she could not say how many voices she heard, what language they spoke, or even relate a single discernable word that was said” showed that a court of appeal might not accept her testimony.
But, said Galloway, the defence’s argument that what she was hearing was the soundtrack of a movie was “inconsistent” with the timeline of events and, at any rate, “if she wanted to lie and make up a story, she would have expanded on who said what – but she doesn’t”.
Galloway said that she merely described what she heard: a fight among males at 12 Goske Street, De Zalze, on the night in question, and that this could be a possible motive.
Judge Desai agreed, saying: “The argument could have created the climate in which later events occurred.”
Desai concluded that “out of kindness, I will read it (the defence’s arguments) again” and make a ruling on Monday.