THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:  296/05

In the matter between:

THE STATE

Appellant

and

GERT JOHANNES ROSLEE

Respondent
_______________________________________________________

Coram:
Navsa, Cloete JJA et Cachalia AJA

Date of hearing: 6 March 2006
Date of delivery: 17 March 2006

Summary:
Appeal against sentence by State ─ misdirections ─ sentence shockingly
light ─ minimum sentence provisions ─ approach to be followed ─ sentence set aside and
substituted.

Neutral citation:
This judgment may be referred to as S v Roslee [2006]
SCA 15 (RSA).

_______________________________________________________
JUDGMENT
_______________________________________________________

NAVSA JA

NAVSA JA:

[1] The respondent, Mr Gert Johannes Roslee, premeditated the murder of
his former girlfriend, Elizabeth Magdaleen Minny (Liz-Marie). On Wednesday
29 October 2003, he waited for her in the parental home of her new boyfriend,
Jaco Greyling (Jaco). Whilst he was waiting he was confronted by Jaco’s brother,
Abraham Greyling (Abraham), whom he stabbed to death. A young woman,
Heloise van der Westhuisen (Heloise), accompanied by her three-year-old son
Donovan (Donovan), arrived at the house to deliver biscuits. He stabbed and
killed them both. When Liz-Marie arrived from work he stabbed and killed her. He
stole two cellular telephones which belonged to Abraham and Heloise as well as
Liz-Marie’s cellular telephone, her diary, bank card and money she had in her
possession. He also stole Heloise’s motor vehicle, which he later abandoned.
He was convicted in the Pretoria High Court (Mabuse AJ) on four counts of
murder and two counts of theft. In respect of the murders of Abraham, Heloise
and Donovan (counts 2, 3 and 4), he was sentenced to 15 years’ imprisonment
on each count. In respect of the murder of Liz-Marie (count 5), he received a
sentence of 18 years’ imprisonment. On the two counts of theft, he received a
sentence of 6 and 7 years’ imprisonment respectively. The sentences were
ordered to run concurrently. This amounted to an effective sentence of 18 years
imprisonment.

[2] The State appeals, with the leave of the court below, against the
sentences imposed on counts 2, 3, 4 and 5, on the basis that they are shockingly
and inappropriately light and that they are based on a number of misdirections.
The question to be addressed in this appeal is whether these contentions are
correct.

[3] I will, in due course, refer to material parts of the respondent’s statement
in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA) on
the strength of which he was convicted. At this stage it is useful to consider the

facts that emerged from evidence presented by the State in aggravation of
sentence. The accused chose not to testify and led only the evidence of a
psychologist in mitigation of sentence.

[4] For reasons that will become apparent it is necessary to set out the factual
background in some detail.

[5] Liz-Marie was 19 years old at the time of her death. She and the
respondent became romantically involved during 2001 when she was in grade
11. He had left school and was in employment. In February 2003, after she had
matriculated, the relationship was terminated. It was rekindled in April 2003. In
May 2003 they became engaged to be married. The relationship was
tempestuous and, in August 2003, the engagement was called off and Liz-Marie
finally terminated the relationship.

[6] During August 2003 Liz-Marie developed a new love interest, Jaco. He
and Abraham lived with their parents. As Liz-Marie’s relationship with Jaco
developed she went to live with the Greylings after her mother had agreed to it.
Liz-Marie had intended to live on her own in a flat which her mother had hired for
her, but decided against it because of death threats she had received from the
respondent.

[7] Liz-Marie worked as a receptionist for a dentist. According to her mother,
Mrs Helena Pieterse, she was a loving person who served as a role model for
her younger sisters. Mrs Pieterse accepted that the respondent loved her
daughter but did not believe he was obsessed with her. On 8 October 2003 the
respondent visited Mrs Pieterse, to enquire of her whether she thought there was
any hope of Liz-Marie reconsidering her decision to terminate their relationship.
She told him that it was up to Liz-Marie to decide. Her evidence that Liz-Marie
had received several telephonic death threats from the respondent was not
challenged.

[8] According to Mrs Maria Greyling, Jaco and Abraham’s mother, Liz-Marie
and her son were very much in love.

[9] Abraham was 21 years old when he was killed. He was at home at the
fateful time because it was his day off from work. Mrs Greyling was not at home
because she and her husband had errands to run.  Upon their return they found
Liz-Marie’s room in a chaotic state. Liz-Marie was on the bed. She had been
gagged and her arms and legs were tied. A ball had been inserted in her mouth.
A meat knife was lying on the ground. Liz-Marie’s body was still warm but she
was dead. She had cuts on her legs and a hole in her chest.

[10] Heloise, a family friend, had come to deliver biscuits (ordered by
Mrs Greyling) when she and Donovan were killed.

[11] Mrs Greyling described Abraham as a son who was a gift from God. He
was very close to her and was sorely missed by the family. As a result of the
murders they could no longer continue to live in the house and were in the
process of selling it. Her husband had been asked to testify but could not face
the trauma that would accompany that exercise.

[12] Mrs Johanna Grobler, Heloise’s adoptive mother, testified. Mrs Grobler
and her husband had adopted Heloise in 1997 and she had been an ‘angel’ to
them. Heloise was 23 years old at the time that she was killed. Donovan was her
only child. Mrs Grobler and her husband could not have children of their own.
According to Mrs Grobler, the impact of Heloise’s death was such that it was as if
she and her husband had been robbed of their own lives. Heloise and Donovan
had been loved by everyone in their family.

[13] The investigating officer, Inspector Doubell, testified. When he first
confronted the respondent concerning the murders, the respondent denied any
involvement. He stated that he loved Liz-Marie too much to have caused her

harm. On 30 October 2003 Doubell was summoned to a hospital in Heidelberg
where he found the respondent threatening to commit suicide. The respondent
was dressed only in a pair of short pants and had cuts on his thigh, both wrists
and his throat. He was wielding a meat knife. After a standoff lasting hours the
police were forced to shoot him in the shoulder to get him to drop the knife.

[14] DNA tests linked a cigarette butt and fragments of nails found at the
murder scene to the respondent and consequently linked him to the offences in
question. Furthermore, blood found on a T-shirt seized by the police from the
respondent was positively identified as Liz-Marie’s blood by way of forensic
testing. Doubell found two knives at the crime scene that appeared to have been
used to commit the murders. One was bloody.

[15] The last witness to testify was Ms Gayle Anne Schmidt, a psychologist.
She first saw the respondent on 13 October 2003 as a patient at Heidelberg
Hospital. He had been referred to her after he had attempted to commit suicide
because he felt he could not live without Liz-Marie. Schmidt consulted with the
respondent on only two occasions, the last being on the day of the murders
before they were committed.

[16] Schmidt recalled the day which Doubell had described, when the
respondent had threatened to kill himself with a knife. She was present when the
respondent stated that he wished to apologise to Liz-Marie’s parents but did not
admit to killing her. He admitted only to killing Abraham. He wanted to tell her
parents that he was sorry about what had happened to her. He also appeared to
be upset because he had read in her diary that she loved a horse more than she
had loved him.

[17] Schmidt testified that, at the time that he was threatening to commit
suicide at Heidelberg Hospital, the respondent did not say what had motivated

him to commit the offences. At that stage he was under stress and was
overwhelmed by thoughts that he described as ‘demons or devils’ in his head.

[18] On the morning of the day on which he committed the murders, when
Schmidt consulted with the respondent, he told her that he had come to terms
with the termination of his relationship with Liz-Marie and was intent on making a
new beginning. He appeared to be wrestling with inner frustration and
aggression. However, when he left, Schmidt was under the impression that he
had indeed come to terms with the termination of his relationship with Liz-Marie.
The respondent told Schmidt that he had spoken to Liz-Marie recently and they
had agreed to be friends.

[19] The day after Liz-Marie’s death Schmidt spoke to the respondent
telephonically. He was tearful and made an appointment to see her later that day.
The appointment was not kept because he was arrested.

[20] The correctness of the post-mortem reports were admitted by the
respondent. In respect of Abraham, the relevant report shows that three stab
wounds were inflicted to the chest, two of which penetrated the lungs. He
sustained a third stab wound to the right shoulder, one wound on the left forearm
and a superficial wound close to the left wrist.

[21] In respect of Heloise, the post-mortem reveals that she sustained multiple
stab wounds. She had been stabbed four times in her chest area and twice in the
left side of her back. From the size of one of the wounds in the left side of her
back it appears to have been a double stab wound. Heloise was also stabbed in
the middle and right side of her back. One of the stab wounds penetrated her
heart. The left lung was pierced twice.

[22] Three-year-old Donovan was stabbed four times. He was stabbed three
times in the chest and once in the back. His heart and left lung were pierced.

[23] Liz-Marie sustained eight stab wounds to the chest. Six wounds
penetrated her right lung. Her heart was pierced. She was stabbed in her right
leg and in her right thigh. All in all, she sustained 14 wounds, four of which were
described as superficial.

[24] In the respondent’s statement in terms of s 112(2) of the CPA, the
following is revealed. He planned to kill Liz-Marie. He had established
telephonically that she had already left work and he intended to get to her home
before she did. The respondent’s encounter with Abraham was unexpected. First
they exchanged harsh words. Then, according to the respondent, Abraham
pushed him from behind as he made his way towards the kitchen door. The
respondent saw a knife which he grabbed and used to stab Abraham in the
chest. Abraham grappled with him and the respondent thereupon stabbed him
several times until he collapsed. At that time Heloise, who had arrived with her
son, started screaming. The respondent attempted to quieten them down.
Heloise and Donovan were both hysterical. He did not hesitate to kill them both.
He did so to prevent them from identifying him. He used black plastic cable to
bind Heloise’s arms and legs to make it look like a robbery. Liz-Marie arrived as
he was cleaning up blood and she started screaming. The respondent forced her
into the bedroom and onto the bed where he stabbed her repeatedly until she
was dead. He removed all her clothing and tied her up with the plastic cables and
an electrical cord. He wanted to create the impression that she had been robbed
and raped.

[25] At the beginning of his statement in terms of s 112(2) of the CPA, the
respondent stated that the termination of his relationship with Liz-Marie ‘het my
verpletter en ek het dag in en dag uit daaroor getob en gebroei’. Immediately
after this he stated that he had decided to kill her but did not provide any
motivation.

[26] Against that background the court below considered the provisions of s 51
of the Criminal Law Amendment Act 105 of 1997 (the Act) which prescribes
minimum sentences for certain offences. Section 51(1)(a) provides that, if a
person is convicted of a murder that was planned or premeditated, that person
shall be sentenced to imprisonment for life. Section 51(3)(a) provides that, if any
court which convicts someone who planned or premeditated a murder is satisfied
that substantial and compelling circumstances exist which justify a lesser
sentence than that prescribed, it shall enter those circumstances on the record of
proceedings and may thereupon impose such lesser sentence.

[27] The court below correctly concluded that the murder of Liz-Marie was
premeditated. Mabuse AJ, however, found that the respondent had murdered her
because of the broken love-relationship and went on to conclude, after referring
to case law, that the emotional trauma brought on by the termination of that
relationship constituted an ‘extenuating circumstance’. In particular, he relied on
S v Rammutla 1992 (1) SACR 564 (BA). The court below did not hold it against
the respondent that he did not testify in mitigation of sentence and held, after
reference to authorities, that extenuating circumstances could be deduced from
the evidence led by the State.

[28] The court below said the following:
‘The court is accordingly satisfied that the evidence by both Liz-Marie’s mother and Gayle
Schmidt proved that the accused killed Liz-Marie because of the broken love-relationship. The
court finds guidance again in the case of S v Rammutla on page 567, where it was stated that “it
has been accepted by our courts that where there has been a love-relationship which has been
broken, the ‘injured’ party may well be so emotionally affected and disturbed that he will resort to
violence resulting in the death of the erstwhile lover. Such an emotional state has been regarded
as an extenuating circumstance.” ’

[29] In respect of the murder of Abraham, Donovan and Heloise, the court
below found that, since the respondent was unaware that they would be on the

scene, those murders could not be said to have been premeditated. The court
below reasoned as follows:
‘[T]he cumulative impact of the accused’s personal circumstances and the conditions that led to
this tragedy can be regarded as substantial and compelling . . . .’
This comprises the court below’s entire reasoning for the sentences imposed in
respect of these three murders.

[30] In my view, the court’s reasoning in respect of the murder of Liz-Marie is
flawed. Her mother stated clearly that she did not regard the respondent as being
obsessed with Liz-Marie. Schmidt testified that, on the morning of the murders,
although wrestling with feelings of frustration, the respondent appeared to have
made peace with the termination of his relationship with Liz-Marie. He told
Schmidt that they were now friends. The respondent himself provided no
motivation for the murder. He chose not to testify in mitigation of sentence. His
statement in terms of s 112(2) of the CPA reflects methodical, rational and
calculating behaviour, not only in respect of the murder of Liz-Marie, but in regard
to the other three murders as well. The relationship with Liz-Marie had been
terminated many weeks before the murders were committed. The court below’s
reliance on the Rammutla case is misplaced. In that matter the murder was not
planned and was committed after violence had been perpetrated against the
accused and occurred in the heat of the moment. The termination of a love-
relationship does not per se constitute a mitigating, extenuating, or substantial
and compelling circumstance. Every case must be carefully considered and
decided on its own facts.

[31] In S v Malgas 2001 (2) SA 1222 (SCA), this court, in considering
‘substantial and compelling circumstances’, stated the following (at 1231A-D):
‘Whatever nuances of meaning may lurk in those words, their central thrust seems obvious. The
specified sentences were 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 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.’

[32] Earlier in the Malgas judgment (at 1230E-G), Marais JA said the following
concerning the Act:
‘In what respects was it no longer business as usual? First, a court was not to be given a clean
slate on which to inscribe whatever sentence it thought fit. Instead, it was required to approach
that question conscious of the fact that the Legislature has ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which should ordinarily be imposed
for the commission of the listed crimes in the specified circumstances. In short, the Legislature
aimed at ensuring a severe, standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be seen to be, truly convincing reasons
for a different response. When considering the sentence the emphasis were to shifted to the
objective gravity of the type of crime and the public’s need for sanctions against it. But that does
not mean that all other considerations were to be ignored. The residual discretion to decline to
pass the sentence which the commission of such an offence would ordinarily attract plainly was
given to the courts in recognition of the easily foreseeable injustices which could result from
obliging them to pass the specified sentences come what may.’
(Emphasis in the original.)

[33] Although there is no onus on an accused to prove the presence of
substantial and compelling circumstances, it must be so that an accused who
intends to persuade a court to impose a sentence less than that prescribed
should pertinently raise such circumstances for consideration.1 In a given case it
may not be enough for an accused to argue that such circumstances should be
inferred from or found in the evidence adduced by the State. See in this regard
Du Toit et al Commentary on the Criminal Procedure Act at 28-16DD.

[34] The court below did not approach the matter in the manner set out in the
Malgas judgment. It engaged in speculation in favour of the appellant. It did not

1 This is an aspect that trial courts and legal representatives should take into account.

consider whether there were truly convincing reasons for departing from the
prescribed minimum sentence. It did not consider all of the many factors
traditionally and rightly taken into account in the process of sentencing. These
are material misdirections entitling this court to intervene.

[35] To fully appreciate the degree of savagery of the murders, an unpleasant
but necessary exercise is an examination of the post-mortem photographs.
Terrible injuries were inflicted by the respondent. The photograph of three-year-
old Donovan is particularly heart-rending. The total number of stab wounds bear
testimony to the degree of violence and callousness. The murders have had a
devastating effect on relatives of the victims, not least because of the manner in
which they were carried out. The public requires effective sanctions against the
perpetrators of such savagery.

[36] The court below’s scant treatment of the circumstances surrounding the
murders of Abraham, Heloise and Donovan is regrettable. Heloise and Donovan
were murdered to prevent them from identifying the respondent. It is true that
their murders were not planned. However, the post-mortem photographs and
reports show the savage nature of the attack on a young woman and her three-
year-old child who were defenceless. The respondent was an intruder in
Abraham’s home. He was entitled to resist the intrusion. In his statement in terms
of s 112(2) of the CPA the respondent describes how he murdered Abraham:
‘. . . Ek het ‘n mes, een van ‘n stel wat op ‘n kas gelê het, gegryp, omgedraai en die gesegde
Abraham Greyling in die bors gesteek. Dit het hom nie gestuit nie en hy het gepoog om my vas te
gryp. Ek het hom verskeie steekwonde toegedien totdat hy skielik inmekaar gesak het. Deurentyd
het ek geweet en besef dat ek hom kan dood deur hom aldus so met die mes te steek, maar ek
het nie omgegee nie.’
Abraham’s murder was wanton. In respect of these three murders, the court
below did not properly consider the seriousness of the offence and did not pay
sufficient attention to the community interest. Maintaining the sentences imposed
by the court below in respect of any one of the murders committed by the

respondent, would, in my view, bring the administration of justice into disrepute.
The State’s contentions as set out in para [2] above are fully justified.

[37] In respect of the murders of Abraham, Heloise and Donovan, and
considering the seriousness of the offence, the personal circumstances of the
respondent, including his relative youthfulness (he was approximately 24 years
old at the time of trial) and the community interest, as well as the factors referred
to earlier in this judgment, it appears to me that in respect of each of these
murders a sentence of 20 years’ imprisonment is justified.

[38] For all the reasons stated above, the appeal is upheld. In respect of
counts 2, 3, 4 and 5, the sentence of the court below is set aside and substituted
as follows:
‘1
On counts 2, 3 and 4, the accused is sentenced to 20 years’ imprisonment in respect of
each count.
2.
In respect of count 5, the accused is sentenced to life imprisonment.’

_________________
M S NAVSA
JUDGE OF APPEAL

CONCUR:

CLOETE
JA
CACHALIA AJA
Supreme Court of Appeal of South Africa
MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
17 March 2006
Status:
Immediate
Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

On 17 March 2006 the Supreme Court of Appeal handed down
judgment in The State v Gert Johannes Roslee setting aside
sentences imposed by the Pretoria High Court on the basis that
there were a number of misdirections and that the sentences were
shockingly light.

On 29 October 2003, Mr Gert Johannes Roslee, the respondent,
murdered his former girlfriend, 19-year-old Elizabeth Magdaleen
Minny. Whilst waiting for her he murdered her new boyfriend’s 21-
year-old brother, Abraham Greyling, as well as a 23-year-old
woman, Heloise van der Westhuizen and her three-year-old son,
Donovan van der Westhuizen.

The Pretoria High Court had sentenced Roslee to an effective
18 years’ imprisonment for all the murders.

This court held that the trial court had erred in not imposing the
minimum prescribed sentence of life imprisonment for the
premeditated murder of Elizabeth Magdaleen Minny. It held further
that the trial court erred in respect of the sentences imposed for
the other three murders by not properly considering the
seriousness of the offences and by not sufficiently taking into
account the community interest. This court held that maintaining
the sentences imposed by the trial court in respect of any one of
the murders committed by the respondent would bring the
administration of justice into disrepute.

In respect of the murders of Abraham, Heloise and Donovan the
sentences were increased from 15 years’ imprisonment to 20
years’ imprisonment on each count.

--ends--