Harper Agherdien’s family shattered as appeal court changes sentence
A sangoma who drove into and killed Port Elizabeth beauty queen Bianca-Anne Harper Agherdien after overtaking a truck on a high-rise will probably spend just six months behind bars, after the appeal court reduced his sentence this week.
His driver’s licence was also suspended for two years.
The judgment shocked Agherdien’s family, who advocated for a lengthy term of imprisonment when the matter went to court last year.
Her father, Denzyl Harper, said yesterday that someone had come along, snuffed out his daughter’s life, and would now possibly walk free after a brief stint in jail.
Agherdien, 28, a pharmacist and former The Herald SpecSavers Miss Port Elizabeth, was returning from Rhodes University in Grahamstown on November 11 2014 when Maxwell Lebetsa tried to overtake a truck on a double-barrier line on the N2 and smashed into her.
He later conceded to gross negligence and pleaded guilty in the Paterson Magistrate’s Court to culpable homicide.
Lebetsa, who was 28 at the time, was sentenced in February last year to three years’ imprisonment despite submissions that he was found to be a suitable candidate for correctional supervision.
The married father was later released on bail pending the outcome of the appeal to the Grahamstown High Court.
Yesterday, Agherdien’s husband, Anver, said while he was angry and disappointed in the new sentence, it was time for him to move on from the case and try to find closure.
“I have to believe there will be justice for Bianca, even if it is not through the justice system,” he said.
But her emotional father said the family could never be happy knowing Lebetsa was about to walk free after “murdering” his daughter.
“I will never get over it. We are knocked back at every corner,” he said. “The law in SA is a putrid state of affairs. “To me, he [Lebetsa] has been let off the hook. Taking away his licence is not a deterrent.
“The sentence just doesn’t seem to match the crime.
“Bianca’s life was cut short when she had carved out a beautiful future for herself.
“The wind was blowing heavily the day of the accident and it is blowing heavily today.”
Acting Judge Shirley Tilana-Mabece, with Judge Selby Mbenenge agreeing, said the trial court had failed to consider all sentence options available and had therefore committed a misdirection.
A correctional supervision report finding Lebetsa, a first-time offender, to be a suitable candidate had been handed to the trial court, but it was rejected by the magistrate as an option on the basis that a non-custodial sentence would not exhibit the community’s strong disapproval of Lebetsa’s actions. Harper had testified in aggravation of sentence as to how the family was battling to come to terms with his daughter’s death.
Agherdien was studying towards her doctoral degree in pharmacology at the time of the accident.
“It is trite law that sentencing is a matter within the discretion of the trial court. A court of appeal will only interfere if there is a clear misdirection,” Tilana-Mabece said.
The judge said that, in this instance, sentencing needed to be considered afresh.
Tilana-Mabece said the Paterson court had relied on a judgment handed down before the new sentencing options came into effect.
“A court must have regard to the degree of blameworthiness of the accused in the commission of the unlawful act,” she said.
“I am satisfied that the trial court correctly found that [Lebetsa] recklessly disregarded the safety of other road users, resulting in the death of [Agherdien].”
Sentences of correctional supervision were not foreign to the offence of culpable homicide, “even in the worst-case scenarios”.
In addition, the issue of suspending Lebetsa’s driver’s licence had not been properly canvassed by the trial court.
She found that it should accordingly be suspended for two years.
In addition, Lebetsa’s sentence of three years’ direct imprisonment was set aside and replaced with a sentence of three years in prison in terms of Section 276(1)i of the Criminal Procedure Act.
This means – as in the case of Oscar Pistorius, who shot and killed his girlfriend, former Port Elizabeth model Reeva Steenkamp – Lebetsa must serve one sixth of his sentence.
Thereafter, he can apply to the parole board to be released from custody and placed under house arrest for the remainder of the sentence.