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[2024] ZAMPMBHC 83
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Manzini v S (A45/2024) [2024] ZAMPMBHC 83; 2025 (1) SACR 219 (MM) (25 November 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE
NO: A45/2024
(1)
REPORTABLE: YES /
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
25
November 2024
SIGNATURE
In the matter between:
RACHAEL MADODI
MANZINI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Coram: Msibi AJ et
Mashile J
Msibi AJ
Introduction
[1]
The appellant, Rachael Madodi Manzini, was
convicted in the Mhala Regional Court with assault with intent to do
grievous bodily
harm, read with the provisions of section 51(2) of
the Criminal Law Amendment 105 of 1997 (the Act); and contravening
section 17(A)
of the
Domestic Violence Act 116 of 1998
– breach
of a protection order.
[2]
The state alleged that the complainant, Ms
N[…], had obtained a protection order against the appellant on
24 August 2020.
On 4 March 2023, the appellant went to her home,
assaulted and stabbed her with a beer bottle. The appellant was
subsequently convicted
on both counts and sentenced to an effective
term of 10 years imprisonment.
[3]
Aggrieved by the sentence, the appellant
brought an application for leave to appeal on sentence, which was
granted on petition to
this court. The appeal is opposed by the
state.
Background
[4]
The appellant and the complainant were in a
love relationship. Due to the appellant’s alleged abuse on the
complainant, she
lost all love for the appellant. She obtained a
protection order against him after he had damaged her door,
threatened to get even
with her or kill her. He told her that he was
not afraid of the police or jail, in fact, he once killed a police
officer. On 4
March 2023 the appellant arrived at her home just after
midnight, he assaulted her with bare hands, stabbed her with a beer
bottle,
while threatening to cut her throat. The complainant’s
grandchild was woken up by her screams. When she walked into living
room, she saw the accused assaulting complainant. Thereafter, she ran
to their neighbours to seek assistance.
[5]
The appellant left their home when he
noticed that she was going to alert neighbours. The neighbours stood
outside the complainant’s
yard afraid of the appellant. When
she came out of her house she was rushed to hospital
Grounds of appeal on
conviction
[6]
The grounds of appeal that the appellant
relies on are as follows:
(a)
That the trial court erred in finding that
the sentence of 10 years imprisonment was appropriate and failed to
consider an alternative
sentence of correctional supervision, a fine,
or a suspended sentence.
(b)
That the trial court erred in not following
the recommendations of the probation officer.
(c)
That the sentence imposed induces a sense
of shock.
[7]
It was submitted on behalf of the appellant
that the trial court attached insufficient weight to his personal
circumstances. That
the trial court failed to consider alternative
means of punishment other than direct imprisonment, thus failing to
address the
need for rehabilitation for the appellant. A sentence
coupled with correctional supervision or a suspended sentence would
have
rehabilitated the appellant. The court failed to consider the
element of mercy when imposing sentence. The trial court therefore
misdirected itself when imposing the sentence of 10 years
imprisonment.
[8]
Counsel for the state submitted that the
appellant was convicted on serious offences. The need to curb
gender-based violence has
been emphasised repeatedly in our courts.
What is aggravating is the fact that there was already a protection
order against the
appellant. The appellant, who is 41 years of age,
did not respect the complainant who is 51 years old and 10 years
older than him.
He did not show any remorse during the trial. The
court had a duty to impose a sentence that struck a balance between
the interests
of society and the offender and that would also operate
as a deterrent for potential offenders. The fact that the trial court
ordered
the sentence on count 2 to run concurrently with the sentence
on count 1, illustrates that the court applied its mind to the
objectives
of punishment and mitigated the cumulative effect of the
sentence.
[9]
Counsel further submitted that the
aggravating factors listed by the trial court in its judgment are
overwhelming. The appellant
is the type of offender who ought to be
removed from society for a lengthy period of time, given the nature
of this matter. There
is nothing that suggests that the sentence is
shockingly inappropriate.
The applicable law
[10]
As
laid down in
S
v Saddler
,
[1]
the imposition of sentence is primarily within the discretion of the
trial court and the court of appeal’s right to interfere
with
sentence is limited to instances where the trial court materially
misdirected itself or committed a serious misdirection.
[11]
Marais
JA provided guidance in
S
v Malgas
[2]
as to when an appellate court can interfere with sentence; stating as
follows:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it
is said, an appellate court is at
large. However, 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’.”
[12]
The appellant has been convicted of
contravening
section 51(2)
of the Act,
Part III
of Schedule 2:
“
51(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence
a person who has been
convicted of an offence referred to in–
(a)
Part II
of Schedule 2, in the case of–
(i)
a first offender, to imprisonment for a
period not less than 15 years imprisonment;
(ii)
a second offender of any such offence, to
imprisonment for a period not less than 20 years; and
(iii)
a third or subsequent offender of any such
offence, to imprisonment for a period not less than 25 years;
(b)
Part III
of Schedule 2, in the case of–
(i)
a first offender, to imprisoned for a
period not less than 10 years;
(ii)
a second offender of any such offence, to
imprisonment for a period not less than 15 years imprisonment;
(iii)
a third or subsequent offender of any such
offence, to imprisonment for a period not less than 20 years;”
…
(3)
(a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling
circumstances exist which justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall
enter those circumstances on the record of the
proceedings and must thereupon impose such lesser sentence.”
(My emphasis.)
Evaluation
[13]
During mitigation of sentence, the
appellant’s attorney placed it on record that the appellant is
married. He is a father
to four children aged 19, 18, 12 and 9 years
respectively; of whom three live with their mothers. His highest
standard of education
is grade 1. He is unemployed. His attorney
conceded that the appellant had been convicted on a serious offence
and prayed for a
sentence that is blended with mercy, considering the
fact that he is a father of 4 children.
[14]
In aggravation of the sentence, the
Prosecutor stated that the accused is one of those men who believe
that when they are in a relationship
with a woman, they own her. She
no longer says yes or no. He threatened the complainant that he would
return for her should he
go to prison. When the appellant left his
home, with the beer bottle in hand, he knew that he had a wife and
four children. He
failed to respect a woman who was 10 years older
than him. He did not even respect her grandchildren. The prosecutor
lastly applied
for a direct imprisonment of 10 years as that would
give the complainant room to breathe and live free from fear for some
time.
[15]
In its judgment on sentence, at page 31 of
the of the trial court record, the court stated as follows:
“
We
just finished women’s month where everybody was made aware of
violence against women and children. As the Prosecutor correctly
placed on record during his address, people in this country are being
made aware of violence against women and children throughout
the
media.
And it is people like you
who give men in this country a bad name. You were married, you are
having your own children, but you were
in a relationship with the
complainant and you treated her as an object, not as a human being
The only appropriate
sentence will be one of direct imprisonment.
Section 51
- in terms of
section 51(2)(b)(i)
this court must impose a sentence of direct
imprisonment of 10 years imprisonment for a first offender.”
[16]
In examining the appropriateness of the
sentence imposed by the trial court, it is prudent to assess the
facts of the matter, the
appellant’s personal circumstances and
contrast them with the aggravating circumstances in order to
determine whether or
not any argument can be made for justifying a
lesser sentence than the one imposed. I am also cognisant of the fact
that prescribed
minimum sentences are not to be deviated from for
light and flimsy reasons. Therefore, the appeal will only succeed
once it is
demonstrated that the trial court misdirected itself in
assessing the facts and circumstances placed before it.
[17]
Section 51(3)
empowers the trial court to
deviate from the prescribed minimum sentence if it is satisfied that
compelling and substantial circumstances
exist that justify a
departure from the prescribed minimum sentence. Such factors can only
be established after all relevant circumstances
had been considered
in totality. In
S v Malgas
(
supra
)
the courts are warned not to deviate from the prescribed minimum
sentences for light and flimsy reasons.
[18]
The evidence in the trial court record
shows that the appellant carefully planned his attack on the
unsuspecting complainant. He
preyed on her at an opportune time when
the complainant, her family members and possibly the entire
neighbourhood would be fast
asleep. He did not consider the emotional
wellbeing of the minor children that were in the house. He subjected
them to the trauma
of seeing their grandmother being assaulted while
lying in her own blood. The gruesome attack was executed in the
sanctity of her
own home.
[19]
Prior to the attack, the appellant had
threatened to kill the complainant, reminding her that he once killed
a police officer. Despite
having been served with a protection order,
the appellant carried out his threats. Clearly, the appellant did not
only disrespect
the complainant and her family but also the law
itself. He was given a chance to mend his ways and was not arrested
for his previous
threats. He demonstrated to the criminal justice
system that he is not a suitable candidate for rehabilitation. The
appellant kept
saying that he wanted to cut her throat while stabbing
her. This court will also keep in mind the fact that the appellant
stopped
assaulting her because her grandchild ran out of the house to
seek help from neighbours. More harm would have been done to the
complainant if the child did not intervene.
[20]
It is a well-established principle in our
law that the mitigating and personal circumstances of an accused may
be outweighed by
other objectives of sentence, namely, the nature and
seriousness of the offence and the interests of society, in the face
of aggravating
factors that carry greater weight.
[21]
The trial court could not find compelling
and substantial circumstances that justify the imposition of a lesser
sentence, instead
the aggravating circumstances call for the
accused’s personal circumstances to recede to the background.
[22]
In my view, the sentence imposed by the
trial court is not shocking but proportionate under the brutal
circumstances in which the
offence was committed. It is also my
considered view that the trial court has not misdirected itself in
imposing the minimum sentence
of 10 years imprisonment.
[23] In the result, I
propose the following order:
The appeal against
sentence is dismissed.
S MSIBI
ACTING JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION,
MBOMBELA
I agree
______________________
MASHILE J
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION,
MBOMBELA
Appearances
For the appellant:
Adv M.S. Ngomane
Instructed by:
Mashele Attorneys
C/O Meintjies and Khoza
Attorneys
Mbombela
For the respondent: Adv
S. H. Zindela.
Instructed by:
Director of Public Prosecutions
Mbombela, Mpumalanga
Province
[1]
S
v Saddler
2000 (1) SACR 331
(SCA) at 334.
[2]
S
v Malgas
[2001] ZASCA 30
;
2001 (1) SACR 469
(SCA) para 12.