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S v Qhekisi (166/2015) [2015] ZAFSHC 182 (17 September 2015)

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Criminal Procedure
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Brief Summary

Criminal Procedure — Review — Sentencing under Domestic Violence Act — Accused charged with contravening a protection order issued under the Domestic Violence Act — Accused initially pleaded not guilty but changed plea to guilty after complainant's testimony — Magistrate imposed five-year sentence, the maximum allowed under the Act — Judicial head submitted for review, arguing magistrate exceeded punitive jurisdiction — Court held that the Domestic Violence Act permits a maximum sentence of five years in district magistrates’ courts, thus the sentence was lawful and within jurisdiction.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned a special review in the Free State High Court, Bloemfontein, conducted in terms of section 304(4) of the Criminal Procedure Act 51 of 1977. The review was prompted not by an application from the accused, but by the magistracy, after a district court imposed a sentence that was thought to exceed that court’s ordinary punitive jurisdiction.


The parties were the State as prosecutor and Teboho Qhekisi as the accused. The underlying proceedings took place in the district magistrates’ court at Ladybrand, where the accused was prosecuted for contravening a domestic violence protection order.


Procedurally, the accused initially pleaded not guilty, was legally represented, and after the complainant testified an adjournment was sought. Following the adjournment, the accused changed his plea to guilty, and the matter proceeded to conviction and sentence. The district court imposed five years’ imprisonment, being the maximum sentence mentioned in the relevant penalty provision of the Domestic Violence Act. The judicial head at Ladybrand then transmitted the case on special review because she considered the sentence to be beyond the district court’s three-year ordinary imprisonment jurisdiction.


The general subject-matter was the enforcement of protection orders under the Domestic Violence Act 116 of 1998, and more particularly the extent of a district magistrate’s sentencing jurisdiction where the Domestic Violence Act prescribes a higher maximum penalty than that ordinarily available under the Magistrates’ Courts Act.


2. Material Facts


A protection order had been issued against the accused on 2 April 2009, directing him, among other things, not to assault, threaten, insult, or verbally abuse the complainant, who was his mother. The charge was framed as a contravention of section 17(a) of the Domestic Violence Act 116 of 1998, read with the protection order.


On 26 March 2015, the accused went to the complainant’s house and requested sugar. When told none was available, he became angry and hit the complainant on the back of her head with a cup, causing a bump. He also swore at her in insulting terms and threatened to kill her. These acts were treated as conduct prohibited by the protection order, and therefore as constituting a contravention of the order.


The accused was legally represented. After the complainant’s evidence, and after an adjournment, the accused changed his plea to guilty. There was no cross-examination of the complainant. In addressing the court, the defence representative admitted that the accused threatened the complainant and hit her with a mug, in contravention of the protection order.


In sentencing, it was material that the accused had a previous conviction for contravening the same protection order against the same complainant. That previous conviction was on 11 October 2014, and he had received a wholly suspended sentence. The sentencing court treated the repetition of the offence within less than a year, despite the suspended sentence, as demonstrating that the prior sentence had not deterred him.


No material factual dispute was identified by the review court as requiring resolution, given the guilty plea and the defence admissions. The review was directed at the legality and propriety of the sentencing jurisdiction and the appropriateness of interference on review.


3. Legal Issues


The central legal question was whether a district magistrates’ court is competent to impose the five-year maximum sentence stipulated in section 17(a) of the Domestic Violence Act 116 of 1998, notwithstanding the general sentencing jurisdictional limit of three years’ imprisonment for district courts set by section 92(1) of the Magistrates’ Courts Act 32 of 1944.


This issue was primarily a question of law, involving statutory interpretation and the relationship between the Domestic Violence Act and the Magistrates’ Courts Act. It required the application of interpretive principles to determine whether the “Notwithstanding the provisions of any other law” wording in section 17 of the Domestic Violence Act was sufficient to override the ordinary jurisdictional limit.


A consequential issue concerned whether, even if jurisdiction existed, there was any basis on special review to interfere with the sentence as not being “in accordance with justice.” This involved the application of sentencing principles to the accepted facts, and an evaluative judgment as to whether the maximum sentence was justified on the particular circumstances.


4. Court’s Reasoning


The review court located the ordinary punitive jurisdiction of district magistrates’ courts in section 92(1) of the Magistrates’ Courts Act 32 of 1944, which provides (subject to exceptions) for a maximum of three years’ imprisonment in a district court. The court then approached the problem as one of whether the Domestic Violence Act created such an exception.


In considering how other legislation expressly expands magistrates’ courts’ punitive jurisdiction, the court referred to examples where statutes contain provisions expressly stating that a magistrate’s court may impose penalties even if they exceed ordinary jurisdictional limits, including provisions in the Drugs and Drug Trafficking Act 140 of 1992, the National Road Traffic Act 93 of 1996, and the Firearms Control Act 60 of 2000. This comparison framed the judicial head’s concern: the Domestic Violence Act does not contain wording identical to those statutes.


The court nevertheless held that section 17 of the Domestic Violence Act does contain an overriding formulation. It emphasised the opening words of section 17, namely: “Notwithstanding the provisions of any other law”, and treated this as a legislative instruction that the penalty regime in section 17 must operate even where other laws (including the ordinary jurisdictional provisions) would suggest a lower sentencing ceiling.


This interpretation was reinforced by the structure of the Domestic Violence Act itself. The court pointed out that the Domestic Violence Act defines “court” in section 1 as a court for a district as contemplated in the Magistrates’ Courts Act, and that the scheme of the Act places the issuing and enforcement of protection orders in the magistrates’ courts. On the court’s reasoning, because the magistrates’ courts are the fora designated to issue protection orders and deal with their contravention, the legislature must have intended that they be able to give effect to the statutory penalty structure for breaches of such orders, including the five-year maximum for section 17(a) offences.


The review court further supported its approach by reference to constitutional and appellate authority on the seriousness of domestic violence and the need for effective legal responses and deterrent sentences. It cited, among others, Constitutional Court and Supreme Court of Appeal statements describing domestic violence as prevalent, often repetitive and concealed, and as implicating fundamental rights such as dignity, equality, and bodily integrity. These references were used not to expand jurisdiction by themselves, but to contextualise why the legislature would have provided a higher maximum penalty and why courts must treat contraventions of protection orders as serious.


Applying these principles to the particular sentencing decision, the review court considered the accused’s prior conviction for the same offence against the same complainant, the fact that a wholly suspended sentence had failed to deter, and the proximity in time between the offences. It concluded that the accused’s conduct justified the imposition of the maximum penalty. The court also expressed the view that the violation of a protection order is a particularly serious form of wrongdoing, and in this case warranted severe punishment.


On this basis, the review court rejected the judicial head’s view that the trial magistrate exceeded jurisdiction, found no basis to interfere with sentence, and concluded that the proceedings were in accordance with justice.


5. Outcome and Relief


The High Court confirmed that the district magistrates’ court did not exceed its jurisdiction in imposing a sentence of five years’ imprisonment for a contravention of section 17(a) of the Domestic Violence Act 116 of 1998, because section 17 operates notwithstanding any other law, including the general sentencing jurisdictional limits.


The court accordingly confirmed the conviction and sentence. The judgment, being a review confirmation, did not make a separate costs order.


Cases Cited


Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality, Amicus Curiae) [2005] ZACC 17; 2006 (2) SA 289 (CC).


Mudau v State (547/13) [2014] ZASCA 43 (31 March 2014).


S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA).


S v Baloyi [1999] ZACC 19; 2000 (1) SACR 81 (CC).


The Director of Public Prosecutions v Larry Burt Phillips (271/2011) [2011] ZASCA 192 (14 November 2011).


D Mnisi v The State (391/08) [2009] ZASCA 17 (19 March 2009).


S v Moagi [2005] JOL 14519 (T).


S v Swart 2004 (2) SACR 370 (SCA).


Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (referred to in Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality, Amicus Curiae) [2005] ZACC 17; 2006 (2) SA 289 (CC).


Legislation Cited


Criminal Procedure Act 51 of 1977, section 304(4).


Domestic Violence Act 116 of 1998, sections 1, 6, 7, 8(4)(a), 11(2)(a), 11(2)(b), and 17.


Magistrates’ Courts Act 32 of 1944, section 92(1).


Drugs and Drug Trafficking Act 140 of 1992, section 64.


National Road Traffic Act 93 of 1996, section 89(7).


Firearms Control Act 60 of 2000, section 151.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the five-year maximum sentence provided for in section 17(a) of the Domestic Violence Act 116 of 1998 may be imposed by a district magistrates’ court, notwithstanding the ordinary three-year imprisonment jurisdiction in section 92(1) of the Magistrates’ Courts Act 32 of 1944, because section 17 begins with the phrase “Notwithstanding the provisions of any other law” and the Domestic Violence Act’s structure contemplates that such matters be dealt with in magistrates’ courts.


The court further held that, on the accepted facts and the accused’s prior contravention of the same protection order against the same complainant, there was no basis to interfere with the maximum sentence on special review. The conviction and sentence were therefore confirmed.


LEGAL PRINCIPLES


The judgment applied the principle that where legislation provides that it operates “notwithstanding” other law, the provision is intended to have overriding effect in the event of conflict, including conflict with general jurisdictional limits, provided this accords with the statutory scheme.


The judgment applied an interpretive approach that reads the penalty provision (section 17 of the Domestic Violence Act) together with the Act’s institutional design, including the definition of “court” in section 1 and the placement of protection order processes within magistrates’ courts, to ascertain legislative intent about enforcement and punishment.


The judgment reaffirmed that domestic violence and the contravention of protection orders are treated as serious forms of wrongdoing in South African law, and that sentencing may properly emphasise deterrence and the need for effective enforcement, particularly where a prior suspended sentence has failed to deter repetition.

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[2015] ZAFSHC 182
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S v Qhekisi (166/2015) [2015] ZAFSHC 182 (17 September 2015)

FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 166/2015
DATE: 17 SEPTEMBER 2015
In the review of:
THE STATE
And
TEBOHO QHEKISI
CORAM: KRUGER et RAMPAI, JJ
JUDGMENT BY: KRUGER, J
DELIVERED ON: 17 SEPTEMBER 2015
[1] This case was sent on special
review under
section 304(4)
of the
Criminal Procedure Act 51 of 1977
.
The accused was charged with a contravention of
section 17(a)
of the
Domestic Violence Act 116 of 1998
, a contravention of a protection
order on 2 April 2009 instructing him not to assault, threaten,
insult or verbally abuse the complainant
(his mother).
[2] The complainant testified that on
26 March 2015 the accused came to her house and asked for sugar. She
told him she did not
have any, and even showed him the empty sugar
packet. Accused got angry and hit her at the back of her head with
the cup he was
carrying. The impact caused a bump at the back of her
head. The accused swore at her calling her by her and her mother’s

private parts, saying she is a bitch and he wants to kill her. The
complainant testified that what hurt her the most was that
accused
burnt everything that was in the house:
“I am hurting because I do not
do anything to him and he keeps on hurting me. I am doing everything
for him, I am feeding
him, I am doing everything for him but he keeps
on hurting me.”
“Every time when he is around I
am always scared, always afraid, I am even now suffering from high
blood.”
[3] The accused was legally
represented. He pleaded not guilty. After the evidence of the
complainant his attorney asked for an
adjournment. After the
adjournment the accused changed his plea to one of guilty. There was
no cross-examination of the complainant.
In her address the legal
representative of the accused admitted that he threatened the
complainant and hit her with a mug in contravention
of the protection
order that was issued against him on 2 April 2009.
[4] The magistrate convicted the
accused as charged and heard argument on sentence. The accused has a
previous conviction for the
contravention of the same protection
order against the same complainant. He was convicted of that offence
on 11 October 2014 and
was given a wholly suspended sentence. That
sentence did not deter the accused from committing the same offence
on 26 March 2015.
The magistrate sentenced the accused to five
years’ imprisonment, the maximum allowed in terms of
section 17
of the
Domestic Violence Act 116 of 1998
.
[5] The magistrate who is the judicial
head at Ladybrand sent the matter on special review under
section 304
(4) of Act 51 of 1977 because in her view the trial magistrate
exceeded her punitive jurisdiction of three years. She says there
is
nothing in the
Domestic Violence Act which
allows a magistrate to go
beyond its punitive jurisdiction. For the reasons that follow we
believe that the judicial head is wrong.
[6] District magistrates’ courts
derive their punitive jurisdiction from
section 92(1)
of the
Magistrates’ Courts Act 32 of 1944
:
“Save as otherwise in this Act or
in any other law specially provided, the court, whenever it may
punish a person for an offence-
(a) by imprisonment, may impose a
sentence of imprisonment for a period not exceeding three years,
where the court is not the court
of a regional division, or not
exceeding 15 years, where the court is the court of a regional
division; ”
[7] There are other statutes, referred
to by the judicial head, that allow for higher sentences to be
imposed in district magistrates’
courts:
(i) The
Drugs and Drug Trafficking Act
140 of 1992
provides in
section 64:
“A magistrates’ court shall
have jurisdiction –
(a) to impose any penalty mentioned in
section 17
, even though that penalty may exceed the punitive
jurisdiction of a magistrate’s court.”
(ii) The
National Road Traffic Act 93
of 1996
provides in
section 89(7):
“Notwithstanding anything to the
contrary in any law contained, a magistrate’s court shall be
competent to impose any
penalty provided for in this Act.”
(iii) Further, the
Firearms Control Act
60 of 2000
,
section 151
provides:
“Despite any law to the contrary,
any magistrates’ court has jurisdiction to impose any penalty
provided for in terms
of this Act.”
[8] The judicial head says there is no
provision in the
Domestic Violence Act that
allows a magistrates’
court to go beyond its punitive jurisdiction. The penalty clause of
the
Domestic Violence Act, section
17 reads as follows:
“Notwithstanding the provisions
of any other law any person who –
(a) contravenes any prohibition,
condition, obligation or order imposed in terms of
section 7
;
(b) contravenes the provisions of
section 11
(2) (a);
(c) fails to comply with any direction
in terms of the provisions of
section 11
(2) (b); or
(d) in an affidavit referred to
section
8
(4) (a), wilfully makes a false statement in a material respect,
is guilty of an offence and liable on
conviction in the case of an offence referred to in paragraph (a) to
a fine or imprisonment
for a period not exceeding five years or to
both such fine and such imprisonment, and in the case of an offence
contemplated in
paragraph (b), (c), or (d), to a fine or imprisonment
for a period not exceeding two years or to both such fine and such
imprisonment.”
[9] The
Domestic Violence Act defines
a
court in
section 1:
“'court' means any court for a
district contemplated in the Magistrates' Courts Act, 1944 (Act 32 of
1944).”
The only court that can issue a
protection order under section 6 of Act 116 of 1998 is a magistrates’
court. It is also only
a magistrates’ court which can deal
with a contravention of a protection order under section 17. The
legislature wanted
to make it simple for persons to obtain and
enforce protection orders, that is why all processes under Act 116 of
1998 are dealt
with in the district magistrates’ court. To put
matters beyond doubt, section 17 of Act 116 of 1998 contains the
rider:
“Notwithstanding the provisions
of any other law.”
The legislature regards domestic
violence in a very serious light, and that is why a maximum penalty
of five years is allowed.
That maximum penalty can be imposed in
district magistrates’ courts.
[10] The courts regard domestic
violence in a serious light. In Omar v Government of the Republic of
South Africa and Others (Commission
for Gender Equality, Amicus
Curiae)
[2005] ZACC 17
;
2006 (2) SA 289
(CC) the Constitutional Court said:
“[12] The High Court referred to
the prevalence of domestic violence in South Africa, the response of
the legislature thereto,
and the obligation of our country under
international law to protect women and families from domestic
violence. The amicus and
respondents presented detailed arguments in
this regard.
[13] The high incidence of domestic
violence in our society is utterly unacceptable. It causes severe
psychological and social
damage. There is clearly a need for an
adequate legal response to it. Whereas women, men and children can be
victims of domestic
violence, the gendered nature and effects of
violence and abuse as it mostly occurs in the family, and the unequal
power relations
implicit therein, are obvious. As disempowered and
vulnerable members of our society, women and children are most often
the victims
of domestic violence.
[14] The criminal justice system has
not been effective in addressing family violence, for a range of
reasons. The need for effective
domestic violence legislation was
recognised by the legislature. It thus enacted the Prevention of
Family Violence Act 133 of 1993,
which preceded the
Domestic Violence
Act. Aspects
of the Prevention of Family Violence Act resulted in a
constitutional challenge involving several issues related to the
right of
an accused person to a fair trial. In overturning the order
of the Pretoria High Court declaring section 3(5) unconstitutional,

this Court expressed itself on a number of points relevant to the
present enquiry.”
[11] In Mudau v State (547/13)
[2014]
ZASCA 43
(31 March 2014) the Supreme Court of Appeal said:
“[6] Domestic violence has become
a scourge in our society and should not be treated lightly, but
deplored and also severely
punished. Hardly a day passes without a
report in the media of a woman or child being beaten, raped or even
killed in this country.
Many women and children live in constant
fear. This is in some respects a negation of many of their
fundamental rights such as
equality, human dignity and bodily
integrity. This was well articulated in S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 345A-B when this Court said the following:
‘Women in this country have a
legitimate claim to walk peacefully on the streets to enjoy their
shopping and their entertainment,
to go and come from work, and to
enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity
which constantly diminishes the
quality and enjoyment of their lives.’
See also S v Baloyi
[1999] ZACC 19
;
2000 (1) SACR
81(CC)
at para 11.”
[12] In the Constitutional Court, Judge
Sachs said in S v Baloyi
[1999] ZACC 19
;
2000 (1) SACR 81
(CC):
“[11] All crime has harsh
effects on society. What distinguishes domestic violence is its
hidden, repetitive character and
its immeasurable ripple effects on
our society and, in particular, on family life. It cuts across
class, race, culture and geography,
and is all the more pernicious
because it is so often concealed and so frequently goes unpunished.”
And in paragraph [12]:
“[12] To the extent that it is
systemic, pervasive and overwhelmingly gender-specific, domestic
violence both reflects and
re-inforces patriarchal domination, and
does so in a particularly brutal form.”
[13] The Supreme Court of Appeal has
alluded to the disturbing prevalence of serious offences rooted in
domestic violence (The Director
of Public Prosecutions v Larry Burt
Phillips (271/2011)
[2011] ZASCA 192
(14 November 2011)).
“[25] On a reading of the record
this case in my view reveals, like others, the disturbing prevalence
of serious offences
rooted in domestic violence. To my mind the court
below over-emphasised the mitigating factors at the expense of
aggravating factors.”
[14] In D Mnisi v The State (391/08)
[2009] ZASCA 17
(19 March 2009) Boruchowitz AJA said at par [9]:
“Domestic violence is rife and
those who seek solutions to domestic and other problems through
violence must be severely punished.
Sentences imposed must send a
deterrent message.”
[15] The Constitutional Court has said
that domestic violence brutally offends the values and rights
enshrined in the Constitution,
see Omar (supra) par [17]:
“[17] Domestic violence brutally
offends the values and rights enshrined in the Constitution.
According to section non-sexism
is a founding value of our state. In
addition, human dignity, the achievement of equality and the
advancement of human rights and
freedoms are recognised as founding
values. Section 12(1)(c) provides that everyone has the right to
freedom and security of the
person, which includes the right to be
free from all forms of violence from public or private sources. This
right must be understood
in conjunction with the rights to dignity,
life, equality (which includes the full and equal enjoyment of all
rights and freedoms)
and privacy. This Court has recognised the
constitutional requirement to deal effectively with domestic
violence. In Carmichele
the Court furthermore pointed out that South
Africa also has a duty under international law to prohibit all
gender-based discrimination
that has the effect or purpose of
impairing the enjoyment by women of fundamental rights and freedoms
and to take reasonable and
appropriate measures to prevent the
violation of those rights.”
[16] In S v Moagi
[2005] JOL 14519
(T)
De Klerk and Smitt JJ dealt with a matter where the accused was
charged with a contravention of section 17(a) of Act 116 of
1998 in
that he contravened a protection order and that he assaulted the
complainant. The magistrate took the two counts together
for
purposes of sentence and imposed periodical imprisonment and a
further sentence of five years’ imprisonment or a fine
of R25
000, wholly suspended. On review the judges expressed the view that
the taking together of charges for the purpose of sentencing
was
undesirable. They did not say that the magistrate exceeded the
court’s jurisdiction by imposing a five year imprisonment

sentence.
[17] In The Director of Public
Prosecutions v Larry Burt Phillips (supra) the following was said:
“[26] It goes without saying
that a more balanced approach to sentencing was required (See S v
Swart
2004 (2) SACR 370
(SCA) para 13). A clear message needs to be
sent to both the respondent and those who might be minded to
disregard protection
orders granted in terms of the
Domestic Violence
Act that
such conduct will not be countenanced by our courts. This
court’s abhorrence of the respondent’s conduct in this
regard
must therefore be reflected in the imposition of an
appropriate sentence.”
[18] Finally one has to consider the
facts of this case. The accused had a previous conviction for
contravening the same protection
order. The suspended sentence did
not deter him. Within less than a year he committed the same offence
against the same complainant,
his mother. His conduct justified the
maximum penalty. The violation of a protection order is a more
serious offence than assault.
Domestic violence is a problem in this
country as is apparent from the preamble to Act 116 of 1998 and
statements made by judges
of the Constitutional Court and Supreme
Court of Appeal as quoted above. In our view the trial magistrate
did not exceed her jurisdiction.
There is no basis to interfere with
the sentence. The proceedings were in accordance with justice.
ORDER
The conviction and sentence are
confirmed.
A. KRUGER, J
I agree.
M. H. RAMPAI, J

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