Hendricks v S (A343/2007) [2008] ZAWCHC 179 (18 April 2008)
- Citation
- [2008] ZAWCHC 179
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Western Cape High Court, Cape Town
- Panel
- Meer, N C Erasmus
- Case number
- A343/2007
More details
- Court
- Western Cape High Court, Cape Town
- Panel
- Meer, N C Erasmus
- Case number
- A343/2007
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the appellant had previous convictions and had disregarded the law, the sentences imposed by the magistrate were disproportionate to the nature of the offences, which essentially amounted to verbal crimen injuria. The maximum penalty provided by the Domestic Violence Act did not justify the severity of the sentences in this case. The court held that the sentences were excessive and substituted them with six months' imprisonment on each count.
Court disposition
Appeal upheld. Sentences imposed by the magistrate set aside and substituted.
Orders
- The sentence of three years' imprisonment on each count is set aside.
- The appellant is sentenced to six months' imprisonment on each count.
02
Material facts
Parties
Sevoro Hendricks
AppellantThe State
Respondent Counsel: Mr MaartensAmounts and remedies
- Original Sentence (each Count): ZAR 3
- Substituted Sentence (each Count): ZAR 0.5
03
Procedural history
Posture
Criminal Appeal / Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentences imposed for contravention of protection orders under the Domestic Violence Act were excessive.
- 02
Whether the sentences should have been ordered to run concurrently.
Party arguments
- Applicant
- The appellant argued that the sentences imposed, being three years' imprisonment on each count and running consecutively, were excessive given the nature of the offences and his personal circumstances.
- Respondent
- The respondent, through Mr Maartens, conceded that the sentences were severe and highlighted that the charges essentially amounted to verbal crimen injuria. He agreed that the imposed sentences were excessive in the circumstances.
05
Court’s reasoning
Legal principles
- 01
Domestic Violence Act, 116 of 1998
Section 178 of the Domestic Violence Act provides for a maximum sentence of five years' imprisonment for contravention of a protection order, but the sentence must be proportionate to the conduct and circumstances.
- 02
General sentencing principles
Sentences must reflect both the seriousness of the offence and the personal circumstances of the accused, and should not be excessive.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the appellant had previous convictions and had disregarded the law, the sentences imposed by the magistrate were disproportionate to the nature of the offences, which essentially amounted to verbal crimen injuria. The maximum penalty provided by the Domestic Violence Act did not justify the severity of the sentences in this case. The court held that the sentences were excessive and substituted them with six months' imprisonment on each count.
Obiter and limits
- The court noted that the circumstances did not warrant the sentences running consecutively.
- The respondent's concession that the sentences were severe was accepted by the court.
Court disposition
Appeal upheld. Sentences imposed by the magistrate set aside and substituted.
- The sentence of three years' imprisonment on each count is set aside.
- The appellant is sentenced to six months' imprisonment on each count.
Source and reliance status
Western Cape High Court, Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Western Cape High Court, Cape Town
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: A343/2007
DATE: 18 APRIL 2008In the matter between:
SEVORO HENDRICKS Appellantand
THE STATE Respondent
JUDGMENT
MEER, J:
[1] On 1 March 2007 appellant was convicted in the Wynberg Regional Court for contravening two protection orders issued in terms of the Domestic Violence Act, 116 of 1998. In contravention of the orders, the appellant had on 27 April 2006 entered the home of Yvonne Samuels and sworn at her. He had again entered her home on 10 May 2006 and sworn at her daughter. Appellant was sentenced to three years' imprisonment on each count, an effective six years' imprisonment. Appellant appeals against his sentence, contending in essence that it is excessive.
[2] In sentencing appellant, the magistrate drew attention to the fact that he had been convicted before of a similar offence and also for assauft. In the light of his previous convictions and disregard for the law, a direct period of imprisonment said the magistrate, was called for on each count. The circumstances, moreover, did not warrant that the sentences run concurrently.
[3] Mr Maartens for respondent drew our attention to the fact that the two charges forming the subject of this appeal in essence comprised a verbal
crimen injuria and conceded that the sentences were severe. I am in agreement with these submissions. Although section 178 of Act 116 of 1998 provides for a maximum of five years' imprisonment, the conduct of appellant apropos the two counts do notf in all the circumstances, warrant the sentences imposed which, in my view, can be seen as excessive. The sentences, therefore, fall to be amended on appeal.
[4] I would accordingly substitute the sentence with the following sentences:
Count 1 - six months' imprisonment
Count 2 - six months' imprisonment
MEER.
J
N C ERASMUS, J: I agree. The imposed sentences by the magistrate are set aside and substituted with the sentences proposed by my colleague.
N C ERASMUS, J
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