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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: CA79/19
In the matter between:
I[...] L[...] L[...] Applicant
And
State Respondent
Coram: REDDY J and WESSELS AJ
Previous Coram: Laubscher AJ and Mamana AJ
Heard: Reserved 19 March 2026 to a reallocated panel as constituted by
the Judge President
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 23 April 2026 at 16h00.
Summary: Criminal law – Appeal against sentence – Assault with intent to do
grievous bodily harm – Appellant a 40 -year-old single mother and primary
caregiver of two minor children – Appellant pleaded guilty – s 113 invoked and
plea of not guilty entered – formal admissions in terms of ‘s 220 of the CPA’
made unequivocally admitting guilt, wrongly made under s 112(2) of the CPA –
Procedural error by trial court not vitiating conviction - Magistrate imposing
three years’ direct imprisonment – Whether sentence shockingly inappropriate –
Magistrate failing to give adequate weight to appellant’s personal circumstances
and interests of minor children – Sentence of direct imprisonment not justi fied
where first offender pleads guilty, acts out of concern for child’s welfare, and is
sole caregiver of dependent children – S v Zinn 1969 (2) SA 537 (A) applied – S
v M 2007 (2) SACR 539 (CC ) applied – Three years’ imprisonment suspended
for four years on appropriate conditions substituted – Declaration of unfitness to
possess firearm confirmed – Appeal against sentence upheld.
ORDER
________________________________________________________________
On appeal from: The Magistrates’ Court for the district of Moses Kotane, held
at Mankwe (Magistrate Makgala, presiding):
1. The appeal against sentence is upheld.
2. The sentence imposed by the magistrate is set aside and replaced with the
following:
The accused is sentenced to three years’ imprisonment, whic h is
suspended for a period of four years on condition that the accused is not
convicted of assault with intent to do grievous bodily harm or any offence
involving violence committed during the period of suspension.
3. The order declaring the accused unfit to possess a firearm is confirmed.
JUDGMENT
________________________________________________________________
REDDY J (WESSELS AJ concurring)
Introduction
[1] This is an appeal against senten ce. The appellant, Ms I[...] L[...] L[...], a
40-year-old woman, was convicted in the Magistrates’ Court for the district of
Moses Kotane (sitting at Mankwe) of assault with intent to do grievous bodily
harm. She pleaded guilty to the charge. The trial cou rt sentenced her to three
years’ direct impris onment and declared her unfit to possess a firearm. The
appellant applied for leave to appeal against sentence.
Proceedings in the trial court
[2] The appellant initially tendered a plea explanation in terms of s 112(2) of
the Criminal Procedure Act 51 o f 1977 (the CPA). The magistrate was not
satisfied that the explanation disclosed an unequivocal admission of guilt, as it
appeared to raise private defence as a ground of justification to exclude
unlawfulness. Acting under s 113 of the CPA, he entered a p lea of not guilty
and directed the prosecutor to proceed with the prosecution.
[3] It would be remiss of this Court not to address a noticeable procedural
irregularity in the trial court proceedings. To this end, once a magistrate invokes
s 113 of the CP A and records a plea of not guilty, the civil equivalent of litis
contestatio is reached. Simply put, the plea proceedings are considered closed.
No provision in the CPA permits a legal representative to tende r a further or
‘amended’ plea explanation at that stage.
[4] It follows that the proper procedural vehicle, after a s 113 of the CPA
invocation, is for the defence to place unambiguous formal admissions before
the court, in terms of s 220 of the CPA. Section 220 of the CPA provides that an
accused or her legal adviser may, in criminal proceedings, admit any fact placed
in issue, and that such admission shall be sufficient proof of that fact. The
record, in effect, discloses that Ms Lengani made formal ad missions on the
appellant’s behalf that she had not been acting in self -defence and that the
complainant had posed no threat or harm to her and that the magistrate accepted
those admissions as establishing the appellant’s guilt. To d escribe that process
as an ‘amended plea explanation’ is a mislabelling. It was, in substance, a s 220
of the CPA admission.
[5] The further effect of s 113 is that any admissions validly made by the
accused during the s 112 proceedings, and not disturbed by the s 113 ruling,
stand as proof of those facts. 1 As the Appellate Division confirmed in S v
Naidoo,2 the conversion of a plea under s 113 does not erase all prior
admissions. Only those admissions directly affected by the reason for the s 113
intervention fall away. All rem aining admissions serve as proof of the facts
admitted. In the present case, any admissions made by the appellant during the
initial s 112(2) proceedings that were unrelated to the self -defence issue
therefore remained binding.
[6] In our view, the proce dural irregularity does not, in the circumstances of
this case, vitiate the conviction. The test whether an irregularity invalidates
1 Section 113(1) of the CPA provides that “any allegation, other than an allegation [affected by the s 113
ruling], admitted by the accused up to the stage at which the court records a plea of not guil ty, shall stand as
proof in any court of such allegation.”
2 S v Naidoo (292/1987) [1988] ZASCA 156 (29 November 1988). See also S v Nthama (HC 12/2023) [2023]
ZANWHC 202 at para 11–14 (confirming that where an accused’s responses to questioning suggest a possible
defence, a plea of not guilty must be entered under s 113 and the matter proceeds to trial).
criminal proceedings is whether a failure of justice resulted, or whether the
accused was prejudiced.3 The appellant was le gally represented throughout. Ms
Lengani made the admissions freely and on the appellant’s instructions. The
admissions were clear and uncontested. The appellant was convicted on
strength of the admissions and she does not now seek to resile from them . Her
appeal is directed solely at sentence. No prejudice is discernible, and no failure
of justice resulted.
Background facts
[7] The facts giving rise to the conviction are largely common cause. On 22
February 2019, the appellant went to Liyema Primary Sc hool in
Tlhathaganyane. Her son, R[...], then nine years old, had returned home the
previous day, crying, and told her that the complainant, Ms Mphuseng Onika
Seputhukela, his teacher, had struck him. The appellant wen t to the school to
speak to Ms Seputhukela about the matter. An altercation ensued, during which
the appellant struck the complainant with a stick. The complainant sustained
injuries, including a two -centimetre laceration to her head, soft -tissue injuries,
and a fracture of her right hand. She continues to experience difficulties with
her hand and has been advised that she may need to retire early from her
teaching career.
[8] After conviction, the State called witnesses in aggravation of sentence.
These i ncluded the complainant, Ms Seputhukela; Ms Neo Makhubalo, a n
educator at the school; and Ms Molebatsi Letswalo, who had become the
appellant’s son’s educator after the complainant left the school. Their evidence
painted a picture of a mother who, over a p eriod of time, had engaged in
3 Section 309(3) of the CPA; S v Ngubane (30/83) [1985] ZASCA 41 (confirming that the test for irregularity is
whether a failure of justice has in fact resulted).
disruptive behaviour at the school, often aggressively confronting educators.
The appellant was, after the incident, barred from entering the school premises.
[9] In mitigation of sentence, Ms Lengani placed the appellant’s personal
circumstances before the court. The appellant was a single mother of two minor
children, a 13 year old and a nine year old. She was unemployed and survived
on casual employment, earning approximately R1 000 per month. She had no
previous convictio ns. Ms Lengani urged the court to impo se a suspended
sentence, emphasising that the appellant had acted out of a genuine concern for
her child, had shown remorse, and that a custodial sentence would be
detrimental to her children.
The trial court’s judgment on sentence
[10] The magistrate, in his judgment on sentence, noted that the offence was a
serious one. He found that the appellant’s conduct was not an isolated incident
but part of a pattern of disruptive behaviour at the school. He considered that
the complainant had suffered serious injuries, which had had a lasting impact on
her ability to teach. He concluded that a custodial sentence was warranted to
deter the appellant and others from taking the law into their own hands. On the
same day, he granted leave to appeal and extended the appellant’s bail.
Grounds of appeal
[11] The appeal against sentence is brought on the basis that the magistrate
misdirected himself in imposing direct imprisonment. It is submitted that the
sentence is shockingly inappropriate and that the magistrate faile d to give
sufficient weight to the appellant’s personal circumstances, her status as a first
offender, and the interests of her minor children.
An appellate court’s sentencing discretion
[12] The principles governing sentencing are well established. It i s trite that
sentencing is pre-eminently a matter for the discretion of the trial court and that
an appellate court should only alter a sentence if that discretion has not been
judicially and properly exercised, namely where the sentence is vitiated by
irregularity, misdirection or is disturbingly inappropriate.4
Analysis
[13] In S v Zinn 5 the court reaffirmed that sentence must strike a balance
among the crime, the offender, and societ y’s interests. In S v RO & Another 6
Heher JA described sentencing as a process of achieving the right balance, or
proportionality, among the elements of the crime, the offender and the interests
of society, noting that the process is inherently unscientif ic and allows
reasonable people to reach different conclusions even on a proper exercise of
the judicial function.
[14] In S v Van Loggenberg 7 the court identified five important functions of
punishment: to act as a general deterrent to members of the co mmunity; to act
as a specific deterrent to the individual offender; to e nable the possibility of
correction unless clearly unlikely; to protect society from those who harm it;
and to serve society’s desire for retribution by addressing its outrage at serio us
wrongdoing.
[15] Undoubtedly, the trial court was correct in regard ing this as a serious
offence. The assault of educator by a parent is a matter of grave concern. The
courts have repeatedly emphasised that violence will not be tolerated, and our
4 S v Rabie 1975 (4) SA 855 (A) at 862.
5 1969 (2) SA 537 (A) at 540G–H.
6 2010 (2) SACR 248 (SCA) at para 30.
7 2012 (1) SACR 462 (GSJ) at para 6.
law is replete with authority that violent crime must be met with sentences that
serve as a deterrent.
[16] Notwithstanding the seriousness of the crime, it was peremptory for the
trial court to give due weight to the appellant’s personal circumstances. The
following factors deserve particular emphasis. The appellant was a first offender
who pleaded guilty, thereby demonstrating remorse. She was the primary
caregiver of two minor children. Her conduct, while unacceptable, was
predicated on her concern for her child’s welfare. These are factors that
ordinarily weigh in favour of a sentence other than direct imprisonment.
[17] The State called witnesses who testified about the appellant’s prior
conduct at the school. This evidence was relevant to show that the incident was
not an isolated outburst. It is significant, however, that the appellant was never
charged in respect of her previous conduct. The fact that she had previously
engaged in disruptive behaviour is a factor that must be considered as part of the
sentencing triad, but it should not be given undue weight in sentencing for the
offence for which she was convicted.
[18] In S v M 8 the Constitutional Court held that a sentencing court must
carefully consider the impact of imprisonment on dependent children when the
offender is a primary caregiver. The court affirmed that c hildren are not mere
appendages to the offender; they have their own rights that must be respected. A
sentencing court must therefore consider the effect of the proposed sentence on
dependent children and must ensure that it does not unduly prejudice them.
8 2007 (2) SACR 539 (CC) at para 25.
[19] In the present case, the magistrate acknowledged that the appellant was a
single mother but did not engage with the impact of direct imprisonment on her
children. The evidence established that she was their sole caregiver. If she were
imprisoned, h er children would be left without parental care. That is a fa ctor
that should have weighed more heavily in the sentencing calculus.
[20] The appellant pleaded guilty and, after the initial plea was rejected, made
formal admissions under s 220 of the CPA that plainly acknowledged her guilt.
This demonstrated a wil lingness to accept responsibility for her actions. While
the State argued that the appellant showed no remorse because she did not
personally apologise to the complainant, the fact of her formal admissions,
coupled with her legal representative’s statement that she was sorry for what she
had done, suggests genuine remorse.
[21] The sentence of three years’ direct imprisonment imposed by the
magistrate was, in our view, too harsh. It failed to giv e adequate weight to the
appellant’s personal circumstances a nd to the interests of her children. The
magistrate appears to have focused primarily on the seriousness of the offence
and the need for deterrence, without properly balancing those consideration s
against the mitigating factors.
[22] That is not to say that a custodial sentence would never be appropriate in
such a case. Assault on educators is a serious matter, and parents must be
discouraged from resorting to violence in dealing with school-related issues.
However, in the circumstan ces of this case, the imposition of direct
imprisonment is not justified.
[23] In our view, a suspended sentence of imprisonment is an appropriate
sanction. It serves the purpose of deterrence by imposing a custodi al term that
will be activated if the appellant reoffends. It also reflects the seriousness of the
offence while taking account of the appellant’s personal circumstances and the
interests of her children. The three-year term of imprisonment imposed by the
magistrate is proportionate to the gravity of the offence, but the sentence should
be suspended on appropriate conditions rather than being immediately effective.
[24] The magistrate also declared the appellant unfit to possess a firearm.
That order was not challenged on appeal and is appropri ate given the violent
nature of the offence. It will accordingly stand.
Order
[25] The following order is made:
1. The appeal against sentence is upheld.
2. The sentence imposed by the magistrate is set aside and replaced
with the following:
‘The accused is sentenced to three years’ imprisonment, which is
suspended for a period of four years on condition that the accused
is not convicted of assault with intent to do grievous bodily harm or
any offence involving vio lence committed during the period of
suspension.’
3. The order declaring the a ppellant unfit to possess a firearm is
confirmed.
_____________________
A REDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
I agree.
________________________
M WESSELS
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES:
For the appellant: Adv O.Y Dibetso-Bodibe
Instructed by: Legal Aid South Africa, Mafikeng
For the respondent: Adv Chulu
Instructed by: Director of Public Prosecutions, North West Province