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[2021] ZANCHC 4
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Solomons v S (CA & R 21/2020) [2021] ZANCHC 4 (29 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Reportable/Not
reportable
Case no: CA
& R 21/2020
In the
matter between:
DAWIDA
SOLOMONS
APPELLANT
And
THE
STATE
RESPONDENT
Heard:
14 September 2020
Delivered:
29 January 2021
Coram:
Phatshoane J and Nxumalo AJ
Judgment
Phatshoane
ADJP
The
introduction
[1] Ms
Dawida Solomons, the appellant, was convicted by the Regional
Magistrate, Ms A Venter, in the Regional
Court for the District of
Carnarvon, Northern Cape, on one count of murder read with the
provisions of s 258 of the Criminal Procedure
Act, 51 of 1977 (“the
CPA”), and ss 51, 52 and 53 of the Criminal Law Amendment Act,
105 of 1997 (“the minimum
sentence Act”). The evidence
was that on 13 February 2016 near Carnarvon she unlawfully and
intentionally killed her life
partner, the 34 years old Mr Barnwell
Sebenja, by stabbing him with a knife.
[2] The
appellant pleaded not guilty to the charge. She admitted that the
deceased died as a result of the
stab wound that she inflicted upon
him but pleaded that she acted in self-defence.
[3] On 13
July 2018 the trial court found the appellant guilty of murder with
intention in the form of
dolus eventualis
and sentenced her to
eight years’ imprisonment on 08 November 2018. This appeal,
which is directed against both the appellant’s
conviction and
sentence, is with leave of this Court. The appellant is currently on
bail and under house arrest between 19h00 and
07h00 pending this
appeal.
[4] Mr
Nel, counsel for the appellant, persisted that the appellant acted in
self-defence and that she did
not exceed the bounds of private
defence. He argued that the trial Magistrate materially misdirected
herself in having found differently,
more so on the basis of the
evidence of a single witness. In the alternative, he argued, if it is
found that the appellant was
not in danger at the moment she stabbed
the deceased, then she did not act with intention and was merely
negligent and ought to
have been convicted of culpable homicide.
The factual background
[5] Mr
Nicolas Meckock had known both the appellant and the deceased for
more than 10 years and were friends.
He worked with the deceased for
a period of 15 years. On 13 February 2016 he was with the couple at
their neighbour’s house.
The appellant requested Mr Meckock to
assist her carry some grocery bags to her house. The appellant and
the deceased had an argument
when leaving their neighbour’s
property which continued inside their house because the deceased took
a polony roll out of
a basket. After dropping the second batch of
groceries Meckock returned to the neighbour’s house. The
appellant continued
yelling at the deceased. Mr Meckock testified:
“
Die beskuldigde het vreeslik gepraat…geskel en so
aan groot tale…ja, net die gevloek en die geskel, ja”
.
The deceased did not say much. “
Die oorledene het ek niks
gehoor skel nie, niks, niks, niks nie.”
[6] Mr
Meckock later went to the appellant’s house and found the
deceased standing in front of the
door. The deceased was looking into
the house carrying a backpack over one shoulder and his boots over
the other. The appellant
approached the deceased from inside the
house and stabbed him with a knife. At the time, the couple was not
engaged in a fight.
Meckock stood very close behind the deceased and
was able to catch him when he slumped. He says that the couple did
not wrestle
for possession of the knife: “
hulle het geen
stry gehad oor ‘n mes niks nie, geen stryery nie
”. Mr
Meckock also denied ever hearing the deceased insult the appellant.
[7] The
report on the medico-legal post-mortem examination compiled by Dr
Willem Pieter Van Zyl, which was
handed in evidence by consent,
records the chief post-mortem finding as a stab wound on the left
chest which penetrates the heart.
The cause of death is recorded as a
stab wound to the heart; a 24 mm entrance wound on the left ventricle
and 10 mm exit wound
on the left ventricle posterior.
[8] Cst
Ashton Levine Seekoei attended the scene and arrested the appellant.
He testified that the appellant
complained of a pain in her hip which
she alleged was caused by the deceased who kicked her. Cst Seekoei
did not observe any injury
on the appellant. He took her for medical
examination. The medical report by Dr Van Zyl was also handed in
evidence by consent.
It recorded that no evidence of any injuries
were found to substantiate the appellant’s allegations of
assault.
[9] The
appellant’s evidence was to the effect that her relationship
with the deceased was characterised
by physical abuse. She testified
that the deceased scolded her over money. He also wanted his clothes
to go back to his other girlfriend
because the appellant refused to
give him money. The deceased slapped her in the face. She fell. He
also kicked her in her face
and on her hip. He did not kick her hard
in the face. They wrested. She went to the kitchen followed by the
deceased who kept insulting
her. She took a knife to scare him off.
They scuffled for possession of the knife. Before the deceased “could
leave”
she stabbed him because he wanted to disarm her of the
knife and was scared that he would stab her. She stabbed him inside
the
house. She denies that Mr Meckock witnessed this incident. The
deceased staggered backwards. Meckock arrived and helped him out
of
the yard. Under cross-examination she stated that she was angry with
the deceased when he told her that he was visiting his
other
girlfriend; that she swore at him because of her anger. She went on
to say that Meckock did not hear the deceased swear at
her because he
did so softly.
Ad conviction:
[10]
The
powers of an appellate court to interfere with the factual findings
of a trial court are strictly limited. If there had been
no
misdirection on the facts there is a presumption that the trial
court's evaluation of the factual evidence is correct. Bearing
in
mind the advantage the trial court had in seeing, hearing and
appraising a witness. It is only in exceptional cases that the
court
of appeal would be entitled to interfere with the trial court's
evaluation of oral evidence. In order to succeed on appeal
the
appellant would have to convince the court that the trial court had
been wrong in accepting the evidence of the state witnesses.
[1]
[11] A
court can convict an accused on the evidence of a single witness
provided that it is substantially satisfactory
in every
material respect.
[2]
It does not follow
that because the magistrate did not expressly mention in her judgment
that Mr Meckock was a single witness, whose
evidence had to be
treated with caution, she did not take this fact into account in her
evaluation of the evidence. Mr Meckock
made a favourable impression
on the trial magistrate who was satisfied that he had ample
opportunity to observe the events that
culminated in the deceased’
death. The magistrate was also satisfied that Mr Meckock’s
evidence was trustworthy. Another
important safeguard on the
reliability of Mr Meckock’s evidence is that it was
corroborated by that of the appellant on some
of the incidents of
that fateful day. The dichotomy lies in respect of what had
transpired inside or outside the house when the
appellant stabbed the
deceased.
[12] As for the
appellant, the trial magistrate was of the view that she adjusted her
evidence; was at times vague;
and contradicted herself. Truth be told
the appellant was less than frank and vacillated between different
versions. She testified
that in the course of the spat the deceased
wanted to leave. Quite remarkably, she asked him to lie down. This
clearly flies in
the face of her allegation that, as a result of the
physical abuse, she was afraid of him on the day in issue. It also
makes no
sense that the deceased would return and kick the door open
when he had refused to put up. The appellant also wanted to create
the impression that Mr Meckock was aware of the abuse. She stated
that after Meckock had caught the deceased, when he collapsed,
he
retorted
: “Haai Bowjie, wat het jy nou vir Dawida gemaak”
.
This was an afterthought intended to lend credence to her argument
that she acted in self-defence. Mr Meckock was never
confronted
with this statement.
[13] Mr Meckock felt
sorry for the appellant and found it difficult to testify against her
because she was a breadwinner
and they have known each other for many
years. His evidence to the effect that when the appellant executed
the stab wound he saw
her; that the deceased carried no weapon and
posed no danger to her; and that they were not fighting, remained
unshaken.
Meckock emphasized: “
Ek
is doodseker hy [the deceased] was aan die buitekant
”.
As the appellant’s cross-examination progressed the appellant
conceded that it was not necessary for her to stab
the deceased.
[14]
Ms Van Heerden, counsel for the State, submitted that although the
State need not show a motive for the commission
of the offence the
evidence demonstrates that the appellant felt as a woman scorned
because the deceased wanted to leave her for
another woman and
therefore stabbed him. That may well be. The submission makes logical
sense.
[15]
In
S
v Sigwahla
[3]
Holmes JA said the following which is relevant to the present
enquiry:
“
The
following propositions are well settled in this country:
1. The
expression 'intention to kill' does not, in law, necessarily require
that the accused should have applied
his will to compassing the death
of the deceased. It is sufficient if the accused subjectively
foresaw the possibility of
his act causing death and was reckless of
such result. This form of intention is known as
dolus
eventualis
, as
distinct from
dolus
directus
.
2. The
fact that objectively the accused ought reasonably have foreseen such
possibility is not sufficient. The
distinction must be observed
between what actually went on in the mind of the accused and what
would
have
gone on in the mind of a
bonus
paterfamilias
in
the position of the accused. In other words, the distinction between
subjective foresight and objective foreseeability
must not become
blurred. The
factum
probandum
is
dolus
,
not
culpa
.
These two different concepts never coincide.
3. Subjective
foresight, like any other factual issue, may be proved by
inference.
To constitute proof beyond reasonable doubt the inference must be the
only one which can reasonably be drawn. It cannot
be so drawn if
there is a reasonable possibility that subjectively the accused did
not foresee, even if he ought reasonably to
have done so, and even if
he probably did do so…
In
the present case the salient facts are that the appellant was armed
with a long knife which he held in his hand; that he advanced
upon
the
approaching
deceased; that as he came up to him he jumped forward and raised his
arm and stabbed him in the left front of the chest;
that the force of
the blow was sufficient to cause penetration for four inches and to
injure his heart; and that there is nothing
in the case to suggest
subjective ignorance or stupidity or unawareness on the part of the
appellant in regard to the danger of
a knife thrust in the upper part
of the body. In my opinion the only reasonable inference from those
facts is that the appellant
did subjectively appreciate the
possibility of such a stab being fatal. In other words I hold that
there exists no reasonable possibility
that it never occurred to him
that his action might have fatal consequences, as he was advancing on
the deceased with the knife
in his hand and as he was raising his arm
to strike and as he was aiming a firm thrust in the general direction
of the upper part
of his body….
In
the result the State proved the required legal intention to kill
(
dolus
eventualis);
and
the conviction was justified.
’
[16]
The Magistrate’s reasoning
that at the critical moment,
when the appellant stabbed the deceased, he posed no threat to her,
is beyond reproach. This negates
any notion that the appellant acted
in self-defence. What further militates against the appellant’s
claim, that she acted
in self-defence, is the absence of any physical
injuries on her body. The medical report (J88) by Dr Van Zyl
dispelled any suggestion
that she was kicked and assaulted. The
appellant’s explanation of the absence of physical injuries,
that it was a “soft
kick” with “soft shoes”
is a fabrication.
[17]
The
magistrate’s conclusion that the appellant subjectively foresaw
the possibility that stabbing the deceased with
the knife to the
chest area might result in his death and she reconciled herself with
the occurrence of death or disregarded the
consequences of it
occurring, is correct. As already alluded to, the trial magistrate
found her guilty of murder with intention
in the form of
dolus
eventualis
in circumstances where
the provisions of s 51(2)(a) the minimum sentence Act would apply.
This conclusion accords with the evidence.
There appears to be no
reason to disturb that finding. The conviction must stand.
Ad sentence:
[18] In
Director
of Public Prosecutions v Mngoma
[4]
,
the SCA restated the well-established principle as follows:
'[11]
The powers of an appellate court to interfere with a sentence imposed
by a lower court are circumscribed. This is consonant
with the
principle that the determination of an appropriate sentence in a
criminal trial resides pre-eminently within the discretion
of the
trial court…’
[19] In terms of s
51(2) of the minimum sentence Act the offence would draw the minimum
sentence of 15 years’
imprisonment absent a finding by the
Court on the accused’s substantial and compelling
circumstances. A proper enquiry on
appeal is whether the facts which
were considered by the sentencing court are substantial and
compelling.
[5]
[20] The trial
magistrate found that there were substantial and compelling
circumstances to be found in the appellant’s
mitigating and
personal circumstances. The appellant was 48 years old at the
sentencing phase.
[6]
She had been staying with the deceased for a period of about 16 years
from which relationship two children were born, aged 11 and
15 years.
She had been employed at a local library for a period of 29 years.
The trial court noted that the couple’s tumultuous
and violent
relationship had a negative effect on their two minor children. The
court found that the appellant was the primary
care giver of the
children and considered the report by a social worker on the
availability of proper alternative care for the
children. Having done
so it was of the view that correctional supervision was not a
suitable sentence for the appellant and other
potential offenders who
think of committing similar offences.
[21] Mr Nel argued
that the trial court underemphasised the appellant’s personal
circumstances; did not attach
sufficient weight to the submission
that the deceased abused and assaulted the appellant over a long
period of time; failed to
have regard to the devastating consequences
which a custodial sentence would have on the appellant and her minor
children; overemphasised
the seriousness of the offence and the
interest of the community. He referred to a number of cases on
domestic violence where custodial
sentences had been overturned on
appeal and remitted to the trial courts to consider imposing
correctional supervision. For instance:
S v Potgieter
1994 (1)
SACR 61
(A);
S v Larsen
1994 (2) SACR 149
(A);
S v Ingram
1995(1) SACR 1 (A);
Botha v S (
901/2016)
[2017] ZASCA 148
(08
November 2017);
S v Ferreira and others
2014 (2) SACR 454
(SCA). Mr Nel contended that the sentence of eight years’
imprisonment imposed in this case is shockingly inappropriate and
ought to be set aside and replaced with a sentence of correctional
supervision or a wholly suspended sentence.
[22] Most of the
cases referred to by Mr Nel were summarised by Satchwell J in
S
v Engelbrecht
[7]
as follows:
‘
[34]
In a long line of cases, the Supreme Court of Appeal has recognised
the distinctive character of family violence. Where such
violence
results in convictions for murder, the sentences imposed should
reflect this unusual and distinctive nature.
[35]
In
S
v Potgieter
1994
(1) SACR 61
(A)
there
was a history of abuse between a couple who lived together. The
accused in that case had three children from an earlier marriage.
The
man whom she killed did not want the children in their home and they
were placed in a boarding school. Subsequently they were
permitted to
return home but he was unpleasant to them. The Court found that
he drank excessively, he was foul-mouthed and
he often assaulted her
by hitting her. However, the accused remained with him because she
continued to love him, despite his conduct.
On one particular day he
assaulted her, with the result that she sustained a miscarriage.
Subsequently there was a pregnancy
which came to fruition and a
child was born. Thereafter the assaults continued and they separated
for a period but she again returned
to him. There was a further
occasion when the children were grossly humiliated, which
precipitated what then occurred. The accused
made arrangements for a
safe at the house to be opened, whereupon she removed a gun from the
locked safe. She shot the deceased
whilst he was asleep. The Court
concurred in the view of the trial Court, which had concluded
that the murder which was committed
was:
'A
crime of passion as a result of the deceased abusing, rejecting and
humiliating the [accused].'
(At
85D.) The Supreme Court of Appeal found that the sentence of
seven years' imprisonment imposed by the trial Court was
inappropriate and was set aside and the trial Court was directed to
consider correctional supervision.
[36]
In
S
v Larsen
1994
(2) SACR 149
(A)
a
marriage was under severe strain. Each of the spouses was suspicious
of the fidelity of the other. One evening they quarrelled,
which
quarrel erupted into physical violence and they slept apart. The next
evening when the husband came home 'he was churlish
and
foul-mouthed'. The wife, 'consumed with jealous suspicion and
overwrought', fetched the gun, shots were fired and he was killed.
The scenario envisaged by the SCA was that the wife had entered the
kitchen intending to kill the husband, aimed the pistol at
him, that
the husband reacted as one would have expected and there was a
scuffle for possession resulting in the firing of the
fatal shot. She
was convicted of murder. The Court found that 'when she entered the
kitchen on the evening of Saturday, 4 November
she was probably in a
state of towering rage' as a result of her jealous suspicions and
increasing frustration and her husband's taunting
and abusive
attitude. The trial Court had imposed a sentence of five years'
imprisonment, which was set aside by the Supreme Court
of Appeal
which directed the trial Court to consider correctional supervision.
[37]
In
S
v Ingram
1995
(1) SACR 1
(SCA)
the marriage
was 'an unhappy and tempestuous one'. The deceased wife had an
alcohol problem and formed liaisons with other
men. One night, she
and her husband became involved in a heated argument. He had a drink
in his hand and attempted to push his
wife into the bathroom and
tried to lock her in. He opened the door to a safe, obtained a gun,
fired a shot and killed his
wife. The Court commented that the
husband's circumstances evoked strong feelings of sympathy. 'He was
the victim of unhappy home
circumstances.' The SCA confirmed the
finding that he had acted under circumstances of diminished
responsibility. The trial Court
had imposed a sentence of eight
years' imprisonment, which was set aside by the Supreme Court of
Appeal, which again directed
the trial Court to consider correctional
supervision.
[38]
In
S
v Ferreira and Others
2004
(2) SACR 454
(SCA)
….
The majority of the Supreme Court of Appeal found that Mrs Ferreira
had never presented a threat to society,
that Mrs Ferreira
had never needed the imposition of a correctional supervision regime,
that the SCA would have considered a completely
suspended sentence
subjected on certain conditions, but the Appeal Court was not even
going to formulate such a sentence,
because events had overtaken
the Court by reason of the delay in the appeal being heard and the
time which Mrs Ferreira had spent
in prison. Accordingly, the Supreme
Court of Appeal imposed a sentence of imprisonment and ordered that
the portion which had not
been served simply be suspended without any
conditions being imposed.
’
[23] Every case ought
to be determined on its own merits. In
S
v Ndlovu
[8]
the Court sounded a warning that Courts
must
guard against imposing uniform sentences that do not distinguish
between the facts of cases and the personal circumstances
of
offenders. In
S
v Engelbrecht
[9]
(
supra
)
the Court made this important pronouncement:
‘
[47]
The circumstances of each domestic and family tragedy are so unique
that, as was pointed out by the Ontario Court of Justice
in
R
v Bennett
1993
OJ 1011:
'In
spousal killings where there has been a history of abuse, general
deterrence does appear to be meaningful.'
…
.
Abused persons do not ask for abuse and do not need to be deterred in
advance from seeking to escape it by unlawful means. Each
court would
have to determine on the facts of each case the nature of the
domestic abuse and the extent to which any apparently criminal
action in response is or is not justified or excused in law or how it
should be penalised. It was the evidence of the State that
Mrs
Engelbrecht suffered from diminished criminal capacity at the time of
the offence. By definition the thought of capture, trial,
conviction and punishment played no part in and had absolutely
no influence upon the criminal action which the Court has found
Mrs
Engelbrecht to have performed. There is no prospect that any sentence
of greater or lesser harshness would have constituted
deterrence at
that particular time
.
Any person who seeks to 'ameliorate' the sentence (
vide
Ferreira)
[
S
v Ferreira and Others
2004
(2) SACR 454
(SCA)
]
to
be imposed for a murder such as this must discharge an
extraordinary evidentiary burden of proving to the Court the
existence,
the extent, the nature, the duration and the impact of the
domestic violence upon which such a person would seek to rely when
sentence
is considered. The careful scrutiny to which Mrs
Engelbrecht's defence has been subjected indicates that the defence
has no easy
task and that any person who seeks to rely upon
this defence or these circumstances cannot do so easily or
lightly.
’
(My
emphasis)
[24] The appellant
did not testify in mitigation. However, the report of the social
worker and probation officer were
handed in evidence by consent. The
social worker’s report records the appellant’s abuse at
the hands of the deceased
as follows:
‘
(T)he
abuse started before they got their first child. She reported that
the deceased would demand money from her to buy alcohol
and dagga.
She stated that the deceased consumed too much alcohol. She stated
that sometimes she would fight him back but the fact
that the
deceased was much younger and more energetic than she is made it
difficult for her to fight. The accused mentioned that
the deceased
would beat her to such an extent that she would be unconscious and
only wake up in a hospital bed. Dawida reported
that the 16 years
that she had been in a relationship with Barnwill (deceased) were the
most painful years of her life….
When
we interviewed Bea–Dianna she mentioned that her father [the
deceased] was always assaulting her mother.
In
her evaluation the social worker states:
‘…
(T)he
fact that he (the deceased) was younger and more energetic than she
is made it difficult for her to win the fights. As a result
of the
abuse the accused applied for a protection order against the deceased
in 2015.….The accused reported that the deceased
would
sometimes leave her because he had another relationship; she
further stated that she would release him and say
if he is no
longer happy in their relationship he can go and be with the other
woman but the deceased would come back. The accused
said that the
deceased would tell her that she is everything to him…The
accused was filling a certain void in the life of
the deceased.’
[25] It is further
recorded in the social worker’s report that the appellant was
raised in an abusive relationship
in which her father ill-treated her
mother. She attended school up to Grade 7 but dropped out to take
care of her half-brother
at a tender age because her mother had to be
at work. The social worker considered alternative placement of the
minor children
in the event custodial sentence was to be imposed.
Having interviewed various family members, acquaintances and the
school principals
of the schools where the children attended, she was
of the view that it will be traumatic for the children to be removed
from the
environment they were familiar with.
[26] The appellant
had two previous convictions. On 18 September 1991 she was found
guilty of assault with intent to
do grievous bodily harm. The
Magistrate did not take this record into account as she considered it
to be superannuated. On 25 May
2011 she was found guilty of riotous
behaviour.
[27] The evidence is
scant on the alleged domestic violence and abuse of the appellant at
the hands of the deceased.
The report by the social worker does not
provide any details on the alleged incidents of abuse. For example,
it is recorded that
the deceased’s daughter reported that the
deceased was always assaulting the appellant. The report is silent on
frequency
and severity of the assaults. What is particularly striking
is that during her evidence-in-chief in the main trial, in describing
the incidents of assault, the appellant intimated that the deceased
stabbed her with a knife three times on her face, one stab
wound on
her cheek, forehead and chin. She was hospitalised and never opened a
case against the deceased because she was scared
of him. She did
provide the social worker with this information. In does not end
there, when Mr Meckock testified it was put to
him that the accused
(the appellant) would testify that during 2014 she was stabbed with a
knife on both her hands by the deceased
and was hospitalised. She did
not adduce that evidence.
[28] As it turns out
the protection order that she applied for in 2015 had nothing to do
with the physical abuse as
the social worker was probably made to
believe. When she sought that order she stated that the deceased
emotionally abused her
and the children and did not financially
support the children. At the end of the affidavit in support of that
order, after recounting
the emotional and financial abuse, she says
that the humiliation and scolding went on for years and that was one
of the main reasons
their relationship came to an end. The couples’
best friend, Mr Meckock, in his evidence in the main trial, was asked
if
he knew of other incidents of assault by deceased upon the
appellant, his response was “
Nee, nie die oorledene nie
”.
[29] It is important
to state that the family of the deceased wrote a letter which was
handed in evidence and read into
the record during the sentencing
phase where they alleged that deceased would many times return to his
parental home after he had
been assaulted by the appellant and her
older son from another relationship who is 27 years old.
[30] Ms Van Heerden,
for the state, submitted that the evidence shows that the appellant
was no shrinking violet. She
stood her ground and on the day of the
incident she was the one swearing and scolding the deceased.
[31]
As the Court held in
S
v Malgas
[10]
even in the absence of material misdirection, an appellate court
may yet be justified in interfering with the sentence imposed
by the
trial court. It may do so when the disparity between the sentence of
the trial court and the sentence which the appellate
court would have
imposed had it been the trial court is so marked that it can properly
be described as "shocking", "startling"
or
"disturbingly inappropriate". However, in this situation
the court may not substitute the sentence which it thinks
appropriate
merely because it does not accord with the sentence imposed by the
trial court or because it prefers it to that sentence.
It may do so
only where the difference is so substantial that it attracts the
epithets mentioned.
[32]
The magistrate was
alive to the Constitutional imperatives to be considered when
sentencing primary caregivers and took this into
account.
[11]
Although
insufficient evidence was placed before court to demonstrate the
extent of the violence it cannot be ignored that there
was some abuse
which continued for years. This compelled the appellant to seek a
protection order. However, murder remains the
single most serious
criminal invasion of a person's constitutional rights and it would be
contrary to the values of the Constitution
to hold that that
scourge provides a licence to abused partners to take the law
into their own hands in the absence of grounds
for lawful
self-defence.
[12]
[33]
The appellant took the law into her own hands and deprived the
deceased’s family of their loved one.
In my view, direct
imprisonment is inescapable for the crime of this gravity absent any
sustainable ground of justification. However,
the
eight years’ imprisonment imposed by the magistrate is, in my
view, disturbingly inappropriate and falls to be ameliorated
somewhat in light of the perpetual violence which marred the couple’s
relationship. This was a compelling extenuating circumstance
which
the magistrate glossed over. It follows that the appeal
against the sentence must be upheld.
In the
result I make the following order.
Order
1.
The appeal against
the conviction of the appellant is dismissed;
2.
The appellant’s
conviction is confirmed;
3.
The appeal against
the sentence is upheld;
4.
The sentence imposed
is set aside and in its place is substituted the following:
“
The
accused, Ms Dawida Solomons, is sentenced to eight years'
imprisonment, three years whereof are suspended for a period of five
years on condition that the accused is not, during the period of
suspension, convicted of an offence involving violence to the
person
of another, and for which she is sentenced to imprisonment
without the option of a fine.”
MV Phatshoane ADJP
I concur
Nxumalo AJ
APPEARANCES:
FOR
THE APPELLANT:
Adv I.J. Nel
Instructed
by Chande Booysen Attorneys
FOR
THE RESPONDENT: Adv A Van
Heerden
Instructed
by Director of Public Prosecutions, Northern Cape
[1]
S
v Bailey
2007 (2) SACR 1
(C);
R
v Dhlumayo and another
1948
(2) SA 677
(A),
Kebane
v S
2010
(1) ALL SA 310
(SCA) at para 12).
[2]
S
ee
R
v Mokoena
1956
(3) SA 81
(A) at 85G – H;
S
v Sauls and others
1981
(3) SA 172
(A) at 180E – G.
[3]
1967
(4) SA 566 (A).
[4]
2010
(1) SACR 427
SCA at para 11.
[5]
S v PB
2013 (2) SACR 533
(SCA) at 539 f-g at para 20.
[6]
Although
the magistrate said she was 48
She
was in fact 49 years old at the time of sentencing because she was
born on 13 January 1969
[7]
2005
(2) SACR 163
(W) at 175 para 47.
[8]
2007(1) SACR 535 (SCA) at 538 para 13.
[9]
2005
(2) SACR 163
(W) at 175 para 47.
[10]
S
v Malgas
2001
(1) SACR 469
(SCA) at 478 para 12.
[11]
MS
v S (Centre for Child Law as Amicus Curiae)
2011
(2) SACR 88
(CC) at 97-98.
[12]
S
v Ferreira and Others
2004
(2) SACR 454 (SCA)
at
472
para 55.