Vermaak v Magistrate Page and Another (45121/14) [2018] ZAGPJHC 721 (14 June 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 45121/14

NOT REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

14.06.2018

In the matter between

MARIA JOHANNA ELIZABETH VERMAAK APPLICANT

And

MAGISTRATE K.PAGE FIRST

RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS

GAUTENG LOCAL DIVISION, JOHANNESURG SECOND

RESPONDENT

JUDGMENT

WINDELL, J

INTRODUCTION

[1] Following an incident on 14 February 2010 during which the applicant’s husband was attacked in their residential home, the applicant and her co-accused appeared before the first respondent (“the magistrate”) where they were charged with, amongst other counts, attempted murder. The applicant and her co-accused were subsequently convicted of attempted murder and sentenced to eight years imprisonment.

[2] This is an application to review the entire proceedings before the magistrate in terms of Section 22 of the Superior Courts Act, 10 of 2013. The applicant seeks the setting aside of the conviction and sentence. At the commencement of the review, we were informed by counsel for the applicant that one of the initial grounds relied upon in the review application (the admission of inadmissible evidence (s 22(1)(d)) will no longer be persisted with, and the review is now largely based on alleged gross irregularities committed by the magistrate during the pre- and post- conviction proceedings (s 22(1)(c)). Although not initially set out as a basis for the review, an additional ground was raised by the applicant namely bias on the part of the magistrate (s 22(1)(b)).

[3] The applicant also applied for leave to appeal against both conviction and sentence. This was refused by the trial court, but leave to appeal the sentence was granted on petition. For practical reasons and to ensure the efficient use of judicial resources, and in the event that the review does not succeed, it was agreed between the parties that the review proceedings and appeal against sentence would be heard simultaneously. The applicant is currently on bail pending the outcome of the review and appeal.

[4] The review turns on four issues. First, whether the magistrate committed a gross irregularity by rejecting the applicant’s version of the events, which version was contained in a formal statement in terms of s 220 of the Criminal Procedure Act 51 of 1977 (“the CPA”). Second, whether the magistrate committed a gross irregularity during the sentencing proceedings by not allowing the applicant to testify about the role she played during the attack. Third, in the event that any of the aforementioned constitutes an irregularity, whether such irregularity is sufficiently gross to vitiate the proceedings wholly or in part. Fourth, whether the conduct of the magistrate created an apprehension of bias against the applicant.

[5] Van Loggerenberg et al[1] interprets gross irregularity as an “irregular act or omission by the presiding judicial officer in respect of the proceedings of so gross a nature that it was calculated to prejudice the aggrieved litigant, on proof of which the court would set aside such proceedings unless it was satisfied that the litigant had in fact not suffered any prejudice”. It is trite that in certain circumstances the cumulative effect of irregularities are decisive in that a case may be so full of

irregularities, none of which are gross in and of themselves, that there may be said to be gross irregularity as to the whole proceedings.[2] It is therefore apposite at this stage to consider the background facts which led to the conviction and sentence of the applicant, as it is only against this background that the conduct of the magistrate and the consideration of any prejudice suffered by the applicant can be viewed holistically.

BACKGROUND FACTS

[6] The applicant was charged with two co-accused, Mr Chris Koch (“accused 1”) and Mr Heinrich Kraft (“accused 2”), both who have since passed away. The State alleged that on 14 February 2010, the applicant and her co-accused attempted to murder the applicant’s husband (“the complainant”) by stabbing him with a knife in the neck and chest, alternatively, that the applicant and accused 1 conspired to kill the complainant.[3] The applicant was also charged with perjury.

[7] All three accused were legally represented during the trial. They were convicted on the main charge, attempted murder. The applicant was acquitted on the only other charge pertaining to her being one of perjury. The applicant and accused 1 were both sentenced to eight years imprisonment. Accused 2 passed away before sentence could be imposed.

[8] At the commencement of the trial all three accused pleaded not guilty. The applicant gave no plea explanation and elected to remain silent. Accused 1 and 2 gave plea explanations and consented to certain admissions in terms of s 220 of the CPA. In his plea explanation

accused 1 stated that he met the applicant in December 2009 at his tattoo shop. She informed him that the complainant was physically

abusing her and that she wanted him killed. Thereafter she made similar requests on numerous occasions. On 14 February 2010, he was having a braai with accused 2 and other persons. The applicant arrived at his home and suggested that he should go to her house and attack the complainant. He then requested accused 2 to accompany him to the applicant’s home to assault the complainant. They used the applicant’s vehicle and proceeded to her house. The applicant told them that the complainant had a firearm, but that she would make sure that he would not get access to the firearm. When they arrived at the house they proceeded to the main bedroom where they found the complainant and “Shaun”, the applicant and complainant’s 14 year old son. Accused 1 was in possession of a whiskey bottle and attempted to hit the complainant with the bottle. He also punched the complainant with his fists. Accused 2 went to the complainant and started stabbing him with a knife. He is unsure how many times. There was a scuffle and the complainant managed to overpower accused 2. He pulled accused 2 away from the complainant and they both ran away. It was at this stage that Shaun hit him with an unknown object. They were later arrested in the neighbourhood.

[9] In his plea explanation, accused 2 confirmed that he accompanied the applicant and accused 1 on the day of the incident. Whilst travelling in the car he overheard the applicant saying that the complainant was abusing her and that she needed somebody to scare him. When they arrived at the applicant’s house, the applicant led them to the main bedroom where they found the complainant and Shaun watching television. He had a knife in his possession which the applicant had instructed him to use to point against her throat to make it look like a hijacking. Accused 1 attempted to strike the complainant with a whiskey bottle and also punched him. The complainant then grabbed him (accused 2) and he stabbed the complainant several times in an attempt to make the complainant let go of him. He did not have any intention to kill the complainant, but only stabbed him so that the complainant could let go of him.

[10] The State called two eye witnesses to testify: the complainant and Shaun. In summary their evidence was the following: On the night of the incident they were in the main bedroom watching television when the applicant and two men entered the room. One of the men had his arm around the applicant’s neck and was in possession of a knife. The applicant said “ek is jammer Jacques, ek is jammer”. The complainant noticed that one of the men (Accused 2) had a stocking over his head and he realized that “something bad was about to happen”. He raised his hands, kept his head down and told the men to take whatever they wanted. The taller of the two men (Accused 1) knocked

him on the head with a hard object and something was sprayed in his eyes. One of the accused said “Jy sal vrek vanaand jou donder, jy sal vrek”. Accused 2 then jumped on him and started stabbing him; six times in his neck and three times on his side. He bled profusely. He was not able to see what the applicant did during this attack, but he thinks she was standing next to the bathroom. One of the accused was singing “jou pappie is besig om dood te bloei, jou pappie is besig om dood te bloei“. The applicant and both men then left the room and Shaun tried to stop the bleeding with toilet paper. The men soon returned with the applicant and their 5 year old son “Dean”. Dean was crying. One of the men said “Is jy nog nie vrek nie?” and accused 2 attacked the complainant for a second time by jumping on top of his head. The complainant was again stabbed but this time in his chest. The complainant did not know where the applicant was during the second attack, but he assumed that she was standing in the door of the bathroom. He decided to fight back and managed to overpower accused 2. Shaun assisted and the attackers fled from their home.

[11] Shaun confirmed the incident and testified that the applicant did not at any stage try to intervene during the attack on the complainant. He specifically denied that she jumped on the bed to prevent accused 2 from stabbing the complainant. He testified that when she initially entered the room she took him aside, to the corner of the room from where he witnessed the attack on the complainant. After the first attack the applicant left the room with both accused. When they came back Dean was with her and the applicant took both of them into the bathroom. He was still able to observe what was going on and he noticed that the complainant was fighting back. He joined in the fight and they managed to get both accused to flee the room. He chased after them and whilst he was fighting with accused 1, the applicant intervened. She was hit by accused 1 on the head with an egg lifter. During the scuffle between him and accused 1, a wooden table broke. Accused 1 picked up a piece of the wooden table and hit him with it. It was also during this fight with accused 1 that he was hit with an egg lifter.

[12] In cross-examination, applicant’s version of the events was put to both state witnesses. From the statements put to them the applicant’s version of the events was the following: She became friends with accused 1 during December 2009. On the day of the incident, around 20h45, accused 1 phoned her and asked her to assist him in buying cigarettes. She agreed and drove to his tattoo shop. When she arrived, she found him in the company of accused 2, whom she had never met before. Accused 1 appeared dazed and his speech was slurred. He told her he wanted to take her car for a drive. Both accused 1 and 2 got into the car and she sat in the back. She was under the impression that they were going to buy cigarettes at the nearby petrol station. Accused 1 demanded that she show him where she lived and when she protested he told her to shut up. He also threatened that if she does not show him where she lives he will cut her throat. She had no other option than to take them to her house. When they arrived accused 2 put a knife against her throat and pushed her into the house and down the corridor into the main bedroom. When they entered the bedroom accused 2 immediately attacked the complainant where he was sitting on the bed watching TV with Shaun. The applicant was shouting and screaming and at some stage, whilst the complainant was being attacked by accused 2, got onto the bed with both knees and tried to get accused 2 away from the complainant. In the process she was hurt on her elbow. She then noticed accused 1 fighting with Shaun. She tried to intervene but was hit on the forehead with an egg lifter.

[13] After Shaun testified further written admissions in terms of s 220 of the CPA were made by the applicant and accused 2. Accused 2 admitted that he attacked the complainant without any provocation and that he stabbed the complainant several times on his upper body. He further explained that this prompted the complainant to defend himself by grabbing him and disarming him. He admitted that he had no lawful defence to act in this manner and that he did not act in self-defence or out of necessity. He admitted that his actions were wrongful, punishable by law, and that he foresaw the possibility of causing the death of the complainant but reconciled himself therewith, by continuing to stab the complainant.

[14] The applicant handed in a lengthy and detailed comprehensive written statement. She stated that the purpose of the statement was to inform the court of the role she played in the attack on the complainant. In the statement she gave a brief background of her marriage. She stated that the complainant abused her physically, emotionally, sexually and financially during their marriage and that had prompted her decision to harm him. In paragraph 22 of her statement she said the following:

“Ek het nooit daaraan gedink om my man enige leed te laat aandoen nie, maar Jacques se gedrag het my so gewalg en ek het soveel haat in my hart gehad vir hom dat fisiese leed vir my ‘n moontlikheid geword het. Ek wou nie meer he dat hy my, of ‘n ander vrou, of ‘n dier of ‘n kind moes kon seermaak nie”

[15] In paragraph 33 she admitted that she had discussions with accused 1 about killing the complainant:

“ Van tyd tot tyd sou ek vir Chris vra of “dit “ (die voorgenoemde aanval op Jacques) hierdie week gaan gebeur. Chris het gese nee. Sarah (accused 1’s wife) het gese sy praat met iemand wat Jacques kon uithaal maar hy stel nie belang nie”

[16] In the statement the applicant also explained what had happened on the day of the incident. In respect of the attack she stated that when she entered the main bedroom the complainant was seated on the bed. She said to him that she was sorry. Accused 2 attacked him by stabbing him with a knife. The complainant did not protect himself in any way and was seated in a fetal position on the bed. She realized that she had to do something and she climbed on top of the bed to assist the complainant, who was bleeding profusely. She also tried to grab the knife from accused 2. She then noticed that accused 1 and Shaun were fighting. She decided that the complainant can look after himself and she then intervened in the fight between Shaun and accused 1. Accused 1 hit her with an egg lifter on her forehead. She described the events as follows in paragraph 85 to 87 of her formal statement:

“[85] Toe ons in die huis gekom het, het ek toe ek by die trappies afgestamp word, besef van die implikasies van wat gebeur het en het met my handelinge geprobeer om vir Jacques te beskerm en later my kinders te beskerm. Ek het dit gedoen deur vir Dean in die badkamer in te stoot saam met Shaun en later tussen beide te probeer tree terwyl Shaun en Chris met mekaar baklei het. Ek het ook op die bed geklim om die meswonde af te weer. In die proses het ek ‘n paar houe gevat.

[86] Ek neem kennis van Chris se verklaring aan die polisie dat hy my nooit ernstig opgeneem het toe ek gepraat het dat ek graag my man sou wou dood he nie. In sy verklaring het hy aangetoon dat hy die metode vir my as ‘n verrassing wou hou.

[87] Ek het nog altyd net daaroor gepraat dat Chris vir Jacques moes vermoor. Soos hierbo aangedui het ek hom die aand van 14 Februarie

uit die ding probeer praat. Toe dit wel vir my duidelik is wat hy gaan doen en my beveel om na my huis toe te gaan het ek my daarmee

versoen en voortgegaan om vir hom te wys hoe om daarheen te ry.

[88] Ek erken my handeling was opsetlik en wederregtelik, dat ek skuldig is aan die misdryf van poging tot moord. Ek is baie jammer oor die geleentheid wat ek geskep het vir Chris om my man seer te maak. Ek het nie gedink dat hy dit sou doen totdat hy my beveel het om hom na my huis toe te neem nie……”

[17] It is clear from her formal statement that she admitted that when she accompanied accused 1 and 2 to her house on 14 February 2010, she was aware that the complainant would be killed. She admitted that her actions were intentional and wrongful and that she was guilty of attempted murder.

[18] After the formal admissions were made, the State proceeded to call Dr Swart, the surgeon who treated the complainant after the incident. He testified that the complainant had been stabbed at least 13 times. He stated that the neck contains major arteries that lead to the brain and in most cases wounds to that area are fatal. In his opinion, one of the wounds to the chest area in particular was serious and life threatening. The complainant had to have an operation and a pipe was inserted into the complaint’s chest to drain the wound.

[19] That concluded the evidence on behalf of the State. Only accused 1 elected to testify. He testified that the applicant wanted him to kill her husband because he was abusing her emotionally and paid her for sex. He tried to talk her out of it and said to her that he will “sort it out”, and that he would speak to somebody. At some stage the applicant offered money, first R50 000 (when the complainant’s life policies would pay out upon his death) and later R 20 000 in cash. On 14 February 2010 she arrived at his tattoo shop and asked “is it going to go down soon,” and he told her that it will be sorted out by Tuesday. She contacted him several times during the day (the cell phone records indicated a total of 35 times in a 24 hour period) and he told her to come and fetch him. She picked him up with her motor vehicle around 21h00 and they proceeded to her home. Accused 2 was also present. He drove the vehicle. Applicant suggested that they should make it look like a hijacking. He testified that he only wanted to teach the complainant a lesson and to give him a “hiding” and had no intention to kill him. He admitted that he punched the complainant and only “noticed what was going on between the complainant and accused 2”. According to him, accused 2 was defending himself and he assisted accused 2 to get away from the complainant. At some stage they left the bedroom and the applicant followed them and said “he is not dead yet”. They went back and he hit the complainant again.

[20] Whilst under cross-examination, in the midst of the trial, accused 1 absconded. The court a quo ordered a separation of trials in terms of s157 of the CPA and proceeded with the trial in the absence of accused 1. Closing arguments on behalf of the State, accused 2 and the applicant were heard and the matter was postponed for judgment. Before judgment could be delivered accused 1 was apprehended and brought before court. He was again joined to the proceedings in terms of s159 of the

CPA, and the cross examination of accused 1 was finalized. The applicant and accused 2 elected not to reopen their cases to present

any further evidence.

[21] On 11 September 2013, the court a quo handed down judgment and convicted all three accused of attempted murder. It is apparent from the judgment that the issue of guilt was essentially one of credibility. In resolving it the magistrate believed the complainant and Shaun, and rejected the applicant’s

formal admissions where it contradicted the evidence of the complainant and Shaun. In his evaluation of the evidence of the complainant and Shaun, the magistrate found them both to be credible, honest and reliable witnesses. He also accepted the evidence of accused 1 only insofar as it was corroborated by the evidence of the complainant and Shaun. He found that all three accused tried to downplay their involvement and participation in the commission of the offence.

[22] It is common cause that the applicant formally admitted all the elements of the offence of attempted murder in her statement. In dealing with the statement, the court a quo found that the bulk of it did not take the matter any further. He observed that the admissions in this statement were completely

different from the applicant’s initial version put to the witnesses in cross-examination, (she initially denied any participation in the commission of the offence and gave the impression that she was a vulnerable victim) and this impacted on her credibility.

[23] If the totality of the evidence is considered the major difference between the applicant’s version with regards to her involvement

in the matter and the evidence of Shaun was whether she had assisted the complainant during the attack. In my view, the difference has no impact on the guilty verdict and can, at most, have a bearing on the sentence. In support of her contention that she assisted the complainant, the applicant relied on the fact that the trousers she was wearing on the night of the incident had a blood stain on it which she maintained was stained when she climbed on the bed to try and prevent accused 2 from stabbing the complainant further. Photos of the crime scene, depicting blood stains against the wall and the bed, were handed in during the trial. The magistrate found the applicant’s version improbable because the complainant was bleeding profusely and it would have been impossible for only one portion of her trousers to have been stained. He accepted the evidence of Shaun, namely, that the applicant did not try to stop accused 2 from stabbing the complainant and that she did not come to his assistance. The magistrate rejected everything the applicant said in her formal statement which was not consistent with the evidence as tendered by the complainant and Shaun. He found that the attack did not take place on the spur of the moment; that all three accused actively participated in the commission of the offence; and that they acted with common purpose.

THE ALLEGED IRREGULARITIES

Irregularities pre-conviction

[24] The applicant initially contended that the joining of accused 1 to the trial proceedings in terms of s 159 after the trials were separated in terms of s 157, constituted a gross irregularity and constituted a ground for review. In the applicant’s heads of argument and during the hearing of the review she no longer sought to place any reliance on this ground.

[25] The contention now advanced is that the court a quo erred in rejecting the applicant’s version as set out in her formal statement in terms of s 220 where it was inconsistent with the evidence tendered by the State. In this statement the applicant explained her role during the commission of the offence and her attempts to intervene in the attack on the complainant. It was submitted on behalf of the applicant that all the facts contained in the applicant’s admissions were agreed upon by the State and that the court should therefore have decided her

guilt on the facts as set out in her formal statement and not on the facts as testified to by the complainant and Shaun.

The applicant’s admissions in terms of s 220

[26] A discussion of the evidentiary weight, if any, to be attached to the factual averments contained in the written plea explanation is accordingly necessary. Section 220 provides as follows:

“An accused or his or her legal advisor or the prosecutor may in criminal proceedings admit any fact placed in issue at such proceedings and any such admission shall be sufficient proof of such fact”

[27] When the applicant’s formal statement was handed in and accepted by the court, the prosecutor did not indicate that there was an agreement on the facts recorded in such statement. This is only required after a plea of guilty in terms of s 112(1)(b), and there was no obligation on the prosecutor to make such a statement. The magistrate, similarly, was under no obligation to ask the prosecutor whether she accepted the facts as being in accordance with the State’s case.In fact, it was clear from the evidence led up to that stage that there was a vast difference between the version of the State and the applicant relating to the role she played during the commission of the offence and whether she tried to assist the complainant or prevent a further attack on him. Under these circumstances, it would have been non-sensical for the prosecutor to accept the facts as set out in the applicant’s formal statement and the court would have failed in its duty to consider all the evidence by disregarding the evidence of Shaun and the complainant and by only relying on the applicant’s version of the events, in his judgment.

[28] In S v Kuzwayo[4], the court held that the intention of formal admissions were to relieve the State of the necessity of proving an allegation which the accused admits.[5] It is not intended to be used by the defence as a means of getting on record something which the State does not propose to make part of its case. If the fact which the defence purports to admit is not part of the case which the State proposes to make, then there is no admission.. The effect of formal admissions was also considered in S v Groenewald[6] where, the appellant formally admitted that five cartridge cases (“patroon doppies”) were found on the scene of the

incident. It was contended that the State was bound by the admission and the court was obliged to accept as a proven fact the admission

that there were “at all times only five patroon doppies”. Cameron JA held this to be an ambitious interpretation which requires that the admission be read in isolation, as though disembodied from the events at the trial. He held that an admission does not stand in isolation and like all other recordals or documents admitted at the trial, the proper meaning and effect should be determined in its setting[7]. The learned Judge noted as follows:

“[36] Context and background, as elsewhere, has informed both meaning and effect. Counsel rightly conceded this. Here, dealing first with effect, the trial record shows that the admissions were made ‘namens die beskuldigde’ (on behalf of the accused). The acknowledgment of fact was thus tendered and recorded as an admission, not by the State but by the appellant. The Act was amended in 1996 to make it possible for the State -and not only the accused -to make admissions in terms of s 220: hence the appellant’s emphasis that the State, too, was bound. But, though the admission recorded a fact that was ‘common cause’ between the parties, the State did not proffer it. The appellant did. Its effect must therefore be assessed in the light of the fact that its declared object when tendered was to relieve the State of part of its duty in relation to the case it set out to prove.

[37] The State case was that five doppies, linked with those the appellant had fired earlier on the fatal day, ‘were on the scene’. It was no part of what it was trying to prove that ‘only five’ doppies were on the scene. And the appellant, by proffering an admission to this effect, could not and did not relieve the State of any duty in relation to the case it was seeking to prove. Still less could he tie the State to a proposition that is radically at variance with its case: an accused cannot, by purporting to relieve the State of duties in relation to its case, burden it with milestones in relation to his own. This is therefore a converse case to Maweke, since here the accused seeks to impose on the State an unfavorable construction of an admission”.

(In Maweke[8], the court held that where the defence makes an ambiguous admission, the construction more favorable to the accused should be adopted).

[29] Without the formal admissions by the applicant, the State’s case against the applicant was strong. The State witnesses not only corroborated each other but the inherent probabilities were also in favour of the State. It is clear from the applicant’s formal statement that although she intended to admit guilt she also wanted to minimize her involvement in the incident. It was seemingly not part of the State’s case that the applicant assisted the complainant or tried to prevent the attack on him. In fact, it was the State’s case that she was the mastermind behind the attack and that she did nothing to assist the complainant on the night of the incident. At the stage when the applicant made a formal statement there was already evidence presented by Shaun and the complainant explaining the applicant’s role during the incident. She elected not to testify and the court had to consider, not only her formal admissions but the totality of the evidence before it. In my view, the magistrate did not commit any irregularity himself when he rejected the admissions of the applicant where it was in contradiction to the accepted evidence. The only effect of s220 admissions is that the State was no longer required to prove the facts forming the subject of the admissions, but it by no means implied that the State either agreed with these admissions or that the court was bound by them.

[30] For these reasons I conclude that there is no merit in this ground.

Irregularities during sentencing

[31] The applicant testified in mitigation of sentence. In her testimony she explained the events leading up to the night of the incident and what led to her decision to have the complainant killed. She also intended to use this opportunity to explain her role during the incident as it was her version in the s220 statement that she played a lesser role. The applicant specifically wished to explain how she assisted the complainant and her son Shaun during the attack.

[32] Whilst she was testifying about what transpired in the main bedroom on the night of the incident, the magistrate intervened and questioned why she was dealing with the merits as he had already made a finding in his judgment on the role each accused played and he had also made credibility findings as far as all three accused were concerned. He expressed the view that while it might be relevant to hear her version of the circumstances leading up to the event and her reasoning for doing so, that the merits of the incident itself were irrelevant as the court cannot at sentencing stage change the factual finding made on the merits. The applicant’s attorney objected and after hearing argument the magistrate ordered that the merits may not be repeated or canvassed during mitigation of sentence.

[33] The applicant’s complaint is that the court’s refusal to allow her to deal with the merits excluded vital evidence and

constituted a gross irregularity that, on its own, vitiates the whole of the proceedings, alternatively, the sentencing proceedings. In support of his contentions counsel for the applicant relied on two cases; S v Seedat [9] and S v Roberts[10]. In Seedat the appellant initially pleaded not guilty to an offence under the Insolvency Act. After certain exhibits were handed in by the

prosecutor, the appellant made certain admissions and changed his plea to one of guilty. The State proceeded to call another witness on the merits. The appellant elected not to adduce any evidence on the merits and was convicted. During sentencing stage the magistrate

asked the prosecutor in the absence of the appellant and his legal representative to call a witness who would be qualified to assist the court with a bookkeeping question. He did so without reference to the defence. The magistrate called the expert and questioned him. On appeal, and relying on S v Harricharan and Others,[11] the court held that it was a gross irregularity for the magistrate to communicate with a witness without the other parties being present and that the irregularity was of such a nature that it amounted to a failure of justice without the necessity of applying the usual test. The court held[12] that if the irregularities by the magistrate were committed before conviction it would have been the duty of the court to set it aside. The irregularity, however, occurred after conviction at the stage where the question was what the appropriate sentence would be and it therefore only impacted on the sentence proceedings. The court considered the question of sentence afresh and imposed a wholly suspended sentence.

[34] The applicant’s argument during the review was largely based on Roberts. It was argued that Roberts is authority for setting aside trial proceedings in instances where a court refused to hear evidence in mitigation. It was submitted that such a refusal constitutes, on its own, a gross irregularity that vitiates the proceedings. It is therefore necessary to deal with the facts in Roberts in more detail than would ordinarily be necessary. In Roberts, the appellant was convicted of assault with intent to do grievous bodily harm. There were two incidents involving the appellant and the complainant. The first incident occurred when, according to the complainant, he was standing in a parking lot with a hacksaw in his hand trying to get into his car to leave. The appellant came towards him and pushed his wife out of the way. In a frightened reaction, he struck the appellant once on the shoulder with the back of the hacksaw. He denied the allegation put to him by the attorney for the appellant that he had struck the appellant multiple blows on the back and on his neck or that he had done anything to provoke the attack. It was therefore implicit in the prosecution’s evidence that the appellant was struck by the complainant from the front. The appellant’s version was that he had sustained numerous cuts to the back of his head and on his back. The second incident followed shortly afterwards and it was this occurrence which was the subject of the charge. It was alleged that

the appellant and the uncle encountered the complainant in the car park and the latter was attacked. The appellant’s case was that he took no part in the assault. The trial court convicted the appellant and inter alia rejected the allegation that the injuries (during the first incident) were inflicted in the circumstances alleged by the appellant. During sentencing proceedings the appellant presented evidence on the injuries sustained by the appellant and requested the court to recall the complainant to cross-examine him inter alia on those aspects of the medical evidence which were of significance to the first incident that led to the assault charge. The magistrate denied counsel the opportunity to complete argument on the matter and refused the application without reasons. The magistrate apparently switched off the recorder and maintained an intimidating stare at counsel for some minutes, refusing in silence repeated requests for the machine to be switched on and for the matter to resume. At some stage during these proceedings the magistrate again switched off the recording machine and told the prosecutor that he wanted to see her. The two of them then left the courtroom. Counsel was not invited to be present. During this adjournment the appellant saw the magistrate and the prosecutor in a nearby corridor in discussion. The magistrate’s attitude towards the prosecutor appeared to be ‘heated and authoritative’. The appellant inferred that they were discussing his case and the prosecutor confirmed that this was indeed so. An application was brought for the magistrate’s recusal based on apprehension of bias because of his private discussion with the prosecutor. The magistrate denied counsel the opportunity to argue the application and refused it without reasons. The magistrate continued to hear arguments on mitigating factors on the evidence as it stood, which argument the magistrate heard - according to the appellant – in a “bored and disinterested” fashion. In judgment on sentence the magistrate described the first incident as merely “an argument and a squabble”, omitting altogether any reference to blows struck by the complainant or their reasonably possible provocative effect relative to the second incident. The entire proceedings were set aside and Howie JA held:

“[38] …there can be no doubt that the magistrate’s conduct, bearing in mind utterances from beginning to end of the post- conviction proceedings would have provided the reasonable person in the appellant’s position with eminently reasonable grounds to think that the court might be biased.

[39] The fact that counsel for the appellant was not entitled after the conviction to canvass the merits anew is not relevant. What he was undoubtedly entitled to do was to canvass issues material to mitigation and provocation by the complainant and the complainant’s credibility in that regard were plainly important ones. In that connection the medical evidence served strongly to support the appellant and to contradict the complainant in a vital respect. It cast substantial doubt on the complainant’s evidence that he struck only a single blow in fright with the back of the hacksaw and did nothing to provoke the assault he suffered.

[40] It is not necessary for present purposes to try to trace procedurally the proper or likely course of proceedings had the magistrate not acted in the irregular manner revealed by the evidence. What is important is that his conduct would, in my view, have caused the reasonable person anxious and reasonable enquiry as to why the appellant’s allegation of the hacksaw assault was rejected for no reason, or virtually incomprehensible reasons, in the judgment, and why all attempts thereafter at establishing its occurrence, or at least the reasonable possibility of its occurrence, were persistently dismissed without any reasons save the untenable one that counsel’s intended avenues of investigation had nothing to do with mitigation. Of course they did. And although counsel might properly have been confined to canvassing the complainant’s credibility in that limited context, there can be little doubt that if the complainant’s credibility suffered in that respect it would, on a reasonable approach, have suffered, or at least been liable to suffer, in other respects as well. The fact that his general credibility would only have been open to attack in an appeal is a procedural consideration which would not have concerned the reasonable person observing the

magistrate’s post-conviction show of ostensible bias. That person would, in my assessment, have thought that the complainant’s

credibility was something which the magistrate was seeking, for no good apparent reason, to protect from all criticism. In turn that would have led to the suspicion that the magistrate’s post-conviction conduct and attitude was evidence of a possible bias which had persisted throughout the case and only surfaced under the impact of counsel’s attempts to canvass the issue of provocation.”

[35] In my view, counsel for the applicant’s reliance on Seedat and Roberts is misplaced. The facts in both these matter are clearly distinguishable from the facts in this matter. In Roberts there was a series of gross irregularities committed by the trial court. In both matters the main issue was the fact that the magistrate was talking to the prosecutor in the absence of the defence. Roberts particularly is not authority for the view that the failure of a presiding officer to hear evidence on the merits during sentencing

proceedings would be a ground for setting aside proceedings. Perhaps the most significant distinction between this case and the Roberts case is that the magistrate in the Roberts case excluded evidence relating to the first assault which did not form the subject matter of the lis between the state and the accused. The trial (or lis) concerned the second assault and it was only in respect of this second assault that the magistrate had been called upon to make

findings of fact which is what he had done. At sentencing stage he incorrectly excluded evidence upon which he had not been called upon to adjudicate during the conviction stage. The significance of this distinction will be elaborated upon later upon in this judgement. Both these matters do not assist this court in determining whether the magistrate committed a gross irregularity.

Did the magistrate commit an irregularity?

[36] In terms of s274 of the CPA “a court may, before passing sentence receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed”. According to Terblanche[13] the court has to decide which evidence has the potential for providing such information and the court has a discretion to allow

such evidence. It is trite that during sentencing stage as much information as possible regarding the perpetrator, the circumstances

of the commission of the offence, the victim’s circumstances, including the impact which the commission of the offence had on the victim, should be placed before the court.[14] In S v Jabavu[15], the court held that the procedure which the trial court should adopt in order to inform itself of the proper sentence to be imposed must be determined largely by considerations of fairness to the accused in the particular circumstances of every case. Any procedure adopted which is for any reason unfair to the accused, would be irregular.

[37] Failure to afford the accused the opportunity to lead evidence on sentence will usually bring about an irregularity, provided of course that such right was claimed and refused.[16] In this instance, the applicant was allowed to present evidence in mitigation of sentence but was not allowed to canvass the merits of the incident afresh. The question is whether the magistrate was correct in refusing to hear further evidence on the merits, or whether it constitutes an irregularity?

[38] The applicant elected not to testify during the trial but she gave an extensive explanation of the events in her s220 statement. In this statement she set out in detail the role she played during the attempt on the complainant’s life. She also set out her attempts to intervene in the attack and what she did to prevent the attack on the complainant. The court a quo therefore had knowledge of her version of what she contended had happened on the night of the incident and dealt with it in his judgment on the merits.

[39] The applicant did not testify during the trial and she now sought the opportunity to explain in more detail her role and actions on the night of the incident. She had an opportunity, duly assisted by a legal representative, to testify. She elected not to. The result of this is a factual finding in respect of that which the applicant sought to testify about. The magistrate cannot sit as an appeal court in respect of the factual findings he made. In the Roberts case, the magistrate erred because he disallowed evidence upon which he had not yet made a finding and which had a bearing on the motive of the accused. In this case, the magistrate quite correctly disallowed the evidence on that which lay at the heart of the trial and on which he had already made a finding on.

[40] The Constitutional Court in S v Dzukuda and Others; S v Tshilo[17] stated that a trial court, in imposing sentence, is bound by the factual findings in its judgment. Where necessary, additional

evidence relevant to sentence, which supplemented but did not contradict such factual findings, could be received.[18] Van der Westhuizen, J held that save in exceptional circumstances, the sentencing part of the trial did not permit the revisiting of the merits of the conviction in any way that would have contradicted the finding of fact on conviction.[19]

[41] There is similarly no merit on this ground.

Bias

[42] In the review application, the applicant averred that the magistrate was biased because he indicated “that it was unfortunate that the state did not continue with the statutory perjury case against the applicant and the court was sorry to conclude that I [the applicant] was not guilty of that charge and accordingly acquitted me”. It is alleged that the language utilized by the magistrate is a clear indication of the prejudice against the applicant. During argument, counsel for the applicant expanded on this ground and argued that because the magistrate refused to hear the applicant’s version of what happened on the night of the incident when she testified in mitigation of sentence, an apprehension of bias must be deduced. Relying on Roberts supra it was argued that this on its own is sufficient to vitiate at least the sentencing proceedings.

[43] It is trite that not only actual bias but also the reasonable apprehension of bias disqualifies a judicial officer from presiding

or from continuing to preside over judicial proceedings.[20] Courts have recognised a presumption that judicial officers are impartial in adjudicating disputes and the Constitutional Court has held that it is a presumption which is not easily displaced. This presumption must be taken into account in deciding whether

objectively viewed, an informed litigant would have a reasonable apprehension that the judicial officer is or might be biased.[21] Needless to say, cogent and convincing evidence is required to rebut the presumption relevant here.

[44] On a proper reading of the record, the facts contained in the review application are factually incorrect and misleading. In his judgment the magistrate stated as follows:

“The State has unfortunately not made out a prima facie case in this regard or tendered any evidence in respect of count two.”

[45] The record clearly indicates that the magistrate never stated that ‘he was sorry to conclude that applicant was not guilty of this charge’. The words of the magistrate are misstated and it clearly refers to the failure by the State to have presented evidence in respect of count two. There are no facts supporting an apprehension of bias.

[46] Counsel for the applicant also relied on the magistrate’s refusal to hear evidence on the merits during mitigation of sentence in support of the bias argument. It was argued that this fact alone could reasonably give rise to an inference of bias. This argument is without merit. The alleged bias on the side of the presiding officer was not raised at any point during the trial proceedings. The magistrate had a discretion in deciding what evidence should be allowed during sentence proceedings. He was of the view that the applicant had numerous opportunities to tender the evidence that she may have considered important and relevant regarding the merits of the matter and she chose not to do so. He had already made a factual finding on the role the applicant played in the attack and for that reason he exercised his discretion by disallowing any further evidence on the merits. There is no reason whatsoever to believe the magistrate’s conduct was actuated by any bias other than a genuine desire to only obtain the information which he regarded necessary to enable him to impose an appropriate sentence.

[47] There is no merit in the review. I now turn to the appeal on sentence.

SENTENCE

[48] It is trite that a court of appeal will only interfere with the discretion of the trial court if the trial court misdirected itself

or did not exercise its discretion judicially and properly, or if the sentence is startlingly inappropriate or that the interests of justice require it. In S v Pillay [22] Trollip JA put it thus:

"Now the word 'misdirection' in the present context simply means an error committed by the Court in determining or applying the facts for assessing the appropriate sentence. As the essential inquiry in an appeal against sentence, however, is not whether the sentence was right or wrong, but whether the Court in imposing it exercised its discretion properly and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence; it must be of such a nature, degree, or seriousness that it shows, directly or inferentially, that the Court did not exercise its discretion at all or exercised it improperly or unreasonably. Such a misdirection is usually and conveniently termed one that vitiates the Court's decision on sentence."

[49] With these principles in mind, I now turn an assessment of the evidence adduced during sentencing proceedings. For ease of reference, I will continue to refer to the appellant as the applicant.

[50] The applicant and the complainant were married in 1994. It was a marriage out of community of property. Two children, Shaun and Dean (aged 19 and 9 respectively at the time of sentencing), were born from the marriage. After the applicant left school she trained as a nurse, but stopped working when she got married because the complainant said he would take care of her financially. At the time of the incident she was a housewife. The applicant sustained a brain injury in 2008 whilst playing softball and she now suffers from epileptic fits. She regularly experiences blackouts and she also suffers from depression and back problems. There is a possibility that she might have to undergo a back operation in the near future. At the time of sentencing, she was on medication for depression and epilepsy. The applicant and the complainant divorced during 2011. She was awarded joint parental rights and responsibility of the minor child, Dean, but primary residence was awarded to the complainant. She also forfeited all the patrimonial benefits which had accrued to her during the subsistence of the marriage. The applicant is presently unemployed and is staying at a friend’s place of residence.

[51] The applicant testified that the complainant has a bombastic personality, and abused her emotionally and sexually during their marriage. She only received an amount of R3000 per month to buy groceries and had to earn extra money by doing sexual favours for the complainant. He watched pornographic material regularly and then she had to act out his sexual fantasies which he experienced as degrading. He would pay her depending on his evaluation of her performance. She had three breast enlargement operations, two of which were because the complainant wanted her to look like the girls in the pornographic films. She stopped performing sexual favours for money about a year before the incident because she decided she no longer needed the money. The complainant started ignoring her after she stopped the sexual favors. She had also been raped anally by the complainant on several occasions, at least twice a month. She testified that she never reported the rapes or told anyone. The rapes also stopped approximately a year before the incident because she stood up to him and said “no”. The abuse broke her emotionally and she started abusing alcohol as a coping mechanism. They went for marriage counselling at some stage, but by that time she was only interested in getting a divorce.

[52] During December 2009, the complainant gave her R1000 to buy herself a Christmas present. She decided to have her friend’s name tattooed on her body. The complainant hated tattoos and she did this to displease him. This is the day she met accused 1 and his wife, Sarah. She told them that complainant used her for sex and accused 1 said there were ways of dealing with such a person “You take him to a bar and slap him around”. Sarah also said there were ways of getting rid of such a person and that gave her the idea to have the complainant killed. She and accused 1 became friends and during January 2010 they regularly discussed what to do with the complainant. She explains it as follows:

“ Ons het bepreek van , van die daad en of ons dit, wanneer dit gedoen gaan word en hoe dit gedoen gaan word en daardie soort van ding en naderhand het ons bepreek van , ek het vir hom gevra wanneer gaan dit gedoen word en naderhand het dit uitgedoof. Dit is soos n ballon wat sy lug verloor het. …Ons het nie detail bepreek nie, nooit. Nooit was daar detail bepreek van hoe, of dit met n mes gedoen gaan word of dit met n geweer gedoen gaan word, wanneer , waar , hoe. Nooit”.

[53] On the day of the incident accused 1 sent her an sms asking about her day and wishing her a lovely Valentine’s Day. He invited her to come to his house for a braai. She did not want to but he phoned her and said “hy gaan dit doen”. She told him she did not want to go ahead with it. It sounded like accused 1 was intoxicated. She tried to change the conversation but accused 1 persisted and told her to come to his house. It was around 20h00. She drove to his house where she found both accused 1 and 2. Accused 1 took her keys and said “let’s get it over and done with”. She then went with accused 1 and 2, but they first went to accused 1’s workplace to pick up something. They then proceeded to her house where the complainant was attacked. She also sustained slight injuries during the incident, and she was in hospital for three weeks after the incident for shock and trauma.

[54] During cross-examination, she testified that they initially planned on shooting the complainant when he left his house. She also said that she was forced by both accused at knifepoint to take them to her house. She further stated in cross-examination that she tried to protect Shaun by intervening when he fought with accused 1, and that she tried to intervene when accused 2 stabbed the complainant.

[55] The applicant testified that her relationship with Shaun was bad before the incident but it grew worse afterwards and he no longer has any contact with her. She, however, has regular contact with her younger child Dean and she sees him every second weekend and alternative holidays.

[56] She testified that she has remorse and that she said “sorry, sorry” when she entered the bedroom on the day of the incident. She also asked for forgiveness from the complainant and the children and apologized for her actions in her s220 statement.

[57] Ms Annette Vergeer, a social worker in private practice, testified on behalf of the applicant. She compiled a report wherein she

recommended that the applicant receive a community based sentence with therapy and counselling. In her report, she stated that the applicant was not a danger to society and a non-custodial sentence would assist in repairing the relationship and emotional bond with her children.

[58] Mr Visser is a clinical psychologist who compiled a victim impact report in respect of the complainant and the two children. He consulted with them three years after the attack. He is of the opinion that the complainant and both children suffered great emotional trauma as a result of the incident and their psychological scars will possibly last for a long time to come. He recommended long term therapeutic input and intervention.

[59] He testified that the complainant suffers from significant post-traumatic stress. He harbors difficult feelings and emotions with regards to his own mortality and it seems that on some level he might feel insecure and unsafe. The attack on his life has left him with injuries to his ego and sense of self, thus necessitating him placing emphasis and importance on his own physical strength and masculinity.

[60] Mr Visser was of the opinion that Shaun feels highly insecure and scared. He might be at risk of acting out behavior as a result of his thoughts and feelings that stem from the attack on his father. Strong underlying feelings of sadness and hopelessness were evident and it seems that he has been hurt significantly by life. He might struggle to trust others and this might be a lifelong issue for him.

[61] Dean seems to harbor significant feelings of anxiety and insecurity and he does not feel safe. He is experiencing nightmares which make him feel uncomfortable and more anxious. He is at a loss as to how to deal with the attack on his father adequately and the matter has left a clear and significant impact on his psychological functioning. Dean has strong nurturance needs that are unmet. He is scared and he fears sustaining harm at the hand of others. He seems to harbor mixed feelings towards the applicant although the overriding feeling seems to be anger. He feels isolated even from his own family members and great care needs to be taken to ensure that Dean is given a lot of support, love, nurturing and encouragement. The attack on his father had a significant impact on Dean’s psychological functioning.

[62] Ms Mariska van der Walt compiled a report on the minor child Dean. She is a social worker specializing in play therapy. She reported that the complainant and Dean have a close and secure father child relationship. She observed that Dean has a need to have a close and secure relationship with the applicant but experiences his current relationship with her as distant. She reports that Dean has an underlying insecurity which is directly linked to the distant relationship with the applicant; being present during the attempted murder of his father; his exposure to conflict between his parents and the subsequent divorce.

[63] It is trite that when assessing an appropriate sentence it is necessary to have regard not only to the main purposes of punishment, but also to the individual concerned, the circumstances of the crime committed and society's interests, whilst at the same time blending the sentence with a measure of mercy. The first question is whether the magistrate exercised his discretion properly and reasonably when he imposed eight years direct imprisonment. The second is, did the magistrate over emphasize the seriousness of the offence resulting in an excessive sentence warranting interference on appeal?

[64] It was submitted that the court a quo misdirected itself when it found that the applicant has not shown remorse. It was submitted that she said “sorry” when she entered the bedroom and that she was the reason why accused 1 and 2 were arrested as she gave a description of the two accused to the police. The argument is fallacious. The accused ran away from the scene and were hiding in the neighbourhood. If the applicant was remorseful she would have given the police, not only a description of the two accused but their names and their work and home addresses. In S v Matyityi [23], the court held that the penitence must be sincere and the accused must take the court fully into her confidence. The court a quo found that in light of the deceitful actions of the applicant, the attempt to hide the truth, the half-truths placed in front of the court and the halfhearted apologies that it was unable to find that the applicant was remorseful or that she showed contrition. The finding in my view was correct. The lack of remorse is evident from the applicant’s testimony during mitigation of sentence. In her testimony she stated: ‘ek is skuldig in vlees maar nie in gees nie’. She refused to take the blame for what happened to the complainant and again tried to minimize her role by stating that she was an innocent victim and forced by the accused at knifepoint to take them to her home. The court a quo cannot be faulted for finding that the applicant still does not take responsibility for her actions and still blames the complainant and accused 1 for what happened.

[65] The magistrate found that the commission of the offence had a huge impact, not only on the lives of the complainant, but also on his two sons, who were minors at the time of the commission of the offence. These two young boys had to observe their father being viciously attacked and injured in front of their eyes, only to be later informed that their own mother, the applicant, was also involved in this attack on their father. She never considered at any time the well-being of the children and what impact this would have on their individual lives. She also placed them in harm’s way. She did not spare Shaun from undergoing possible secondary trauma, by allowing him to testify and to be cross- examined and for a version to be put to him that was clearly not the truth.

[66] The applicant submitted that she suffered sexual and financial abuse at the hands of the complainant. Relying on the decision of S v Ferreira[24], counsel for the applicant submitted she should receive a non-custodial sentence. In Ferreira the appellant was convicted of the murder of her husband. She was the subject of severe physical abuse as well as financial abuse at the hands of her husband and she contracted two people to kill him. There was a pattern of abuse and the cycle of violence was evident. The court held that she did not present a threat to society nor needed imposition of a correctional sentence regime. She was sentenced to 6 year imprisonment suspended on certain conditions. Howie JA stated as follows:

“a battered woman’s decision should be evaluated from neither a male nor a female perspective but the court should place itself as far as it can in the position of the woman concerned with a fully detailed account of the abusive relationship and the assistance of expert witnesses where it is available.”

[67] The facts in Ferreira are clearly distinguishable from the facts in the present matter. In Ferreira, there were violent assaults and sexual abuse and substantial efforts made by the appellant to escape and evade the abuse that were

unsuccessful. In Ferreira, the appellant sought assistance from the law and sought alternatives prior to the death of her husband. In the present matter the

applicant initially indicated that she had nothing to do with the attack on her husband, and that she was an innocent victim. In

cross-examination of the complainant, it was put to him that there was ‘nothing seriously wrong with their marriage’, that ‘they had no serious problems’ and that ‘there was just a lack of communication’. In her testimony during sentence she changed her version completely and stated that she was sexually and financially abused by the complainant and that he raped her over a period of time. These violent rapes were never mentioned at the outset of the trial and she never canvassed these serious allegations with the complainant. She never sought medical assistance, or any help of any sort and she was unable to tell the court when the sexual abuse started. She then testified that she was able to stop the cycle of abuse about a year before the incident, by simply requesting the complainant to stop raping her which he did without further ado. The court a quo found this aspect of her evidence astonishing. It also found that there was no evidence to suggest that she was an abused woman. The court a quo further found the applicant was deceitful and a liar and stated that no court could believe a word she says. On an examination of the evidence, there is no reason for this court to interfere with the court a quo’s credibility finding.

[68] The applicant called Ms Vergeer, a social worker in private practice to testify on her behalf in mitigation of sentence. The allegations of rape and continued sexual abuse at the hands of the complainant were glaringly absent from Ms Vergeer’s report. In the circumstances of this case, I find it strange that the applicant would not have confided in Ms Vergeer. This seriously impacts on the applicant’s credibility. I am satisfied there was no evidence of battered woman syndrome. The only aspect that was not placed in dispute was the fact that she watched pornography with the complainant on his request and that he sometimes paid her for performing certain sexual acts. No evidence was presented to suggest that this conduct falls within or outside the norms of an ordinary marital relationship. In the circumstances of this case, this conduct alone is not an indication of sexual abuse. The complainant testified that these acts were consensual and the magistrate found that she did not appear to be averse to those acts a she did not take the matter further at the material time. On the evidence before the magistrate , there is no basis to find that he misdirected himself in this regard.

[69] The court a quo found that the motive for the attack was not patently clear. What was however clear from the accepted evidence was that the applicant

continuously pestered accused 1 to get rid of the complainant. It was further not disputed that the applicant would have inherited an estate valued at approximately R 3,5 million had the applicant been successful and the complainant killed. The evidence of Mr. Grimbeeck, the financial advisor of the complainant, did not take the matter further.

[70] The court a quo correctly found that the interests of the community and society at large demands that serious offences are adequately punished. The courts must also impose a sentence that would act as a deterrent to would-be offenders. The attack on the complainant was premeditated and planned. The applicant and accused 1 discussed ways in which the complainant could be murdered for at least a month before the incident took place. On the day of the incident, she had ample opportunity to back out of the plan and to break off all contact with accused 1. She admitted in cross-examination that she could have switched off her phone, or not gone to accused 1 and the attack would never have happened. When she got second thoughts she could have phoned the complainant and warned him about the imminent attack. In my view, the court a quo was correct in finding that she spared no thought for the consequences of her actions or what impact the attack would have on her children, aged 14 and 5 at the time of the incident.

[71] The complainant was viciously attacked and stabbed more than 10 times in his neck alone. After the first attack, when he was still not dead, the accused returned to the bedroom and attacked him again. During this ordeal they sang a little song directed to the children “ jou pappie is besig om dood te bloei”. The complainant was bleeding profusely and Shaun, in a desperate attempt to assist his father, tried to stop the bleeding with toilet paper. In my view, direct imprisonment is the only appropriate sentence in light of the specific circumstances of this case. The only question that remains is whether the period of imprisonment imposed by the court a quo is so shockingly inappropriate or grossly disproportionate that it induces a sense of shock.

[72] In assessing an appropriate sentence it is necessary to have regard not only to the main purposes of punishment, but also to the individual concerned, the circumstances of the crime committed and society's interests, whilst at the same time blending such sentence with a measure of mercy. In R v Mapumulo and Others[25] Innes CJ held that the infliction of punishment is preeminently a matter for the discretion of the trial court. It can better appreciate the atmosphere of the case and can better estimate the circumstances of the locality and the need for a heavy or light

sentence”.

[73] The court a quo took into consideration that it is a serious crime and the prevalence of this type of crime in the jurisdiction of the court. The

magistrate took into consideration that it was a traumatic experience for the family and that the community expects the court to meet out an appropriate sentence. He took into consideration that the complainant was the primary caregiver of the children. He considered the applicant’s personal circumstances and took into consideration her medical condition and found that there are facilities available in prison to care for the needs of the applicant. He found that the only suitable sentence is that of direct imprisonment.

[74] I am of the view that the magistrate has not been shown to have misdirected himself or that he had exercised his discretion improperly and there is no basis upon which to interfere with the trial court’s sentence. Having considered the main purposes of punishment, the triad applicable to the imposition of a just sentence, and taking into account all the relevant circumstances, I am not persuaded that the sentence imposed by the magistrate should be interfered with.

[75] In the result the following order is made:

1. The review is dismissed.

2. The appeal on sentence is dismissed.

L. WINDELL

JUDGE OF THE HIGH COURT

I agree and it is so ordered.

B. VALLY

Counsel for the applicant: Advocate Spannenberg

Instructed by: Johannesburg

Justice Centre

Counsel for the respondent: Advocate Nel

Instructed by: Office

of the Director of Public Prosecutions, Johannesburg

Date of hearing: 28

March 2018

Date of judgment: 14

June 2018

[1] Erasmus Superior Court Practise. Service 4 2017 at A2-134

[2] De Vos v Marquard & Co 1916 CPD 551

[3] Contravention of s 18 (2)(a) and 18 (2)(b) of the Right to Assemblies Act 17 of 1956.

[4] 1964 (3) SA 55 (NPD)

[5] At p56 H

[6] 2005 (2) SACR 592(SCA)

[7] At [34]

[8] 1971 (2) SA 327 (A)

[9] 1971 (1) SA 791(NPD)

[10] 1999 (4) SA 915 (A)

[11] 1962 (3) SA 35 (N)

[12] At p 792 E-F

[13] A guide to sentencing in South Africa, Third edition at page 96

[14] S v Olivier 2010 (2) SACR 178 (SCA)

[15] 1969 (2) SA 466 (A)

[16] S v Booysen en ‘n ander 1974 (1) SA 333 (C) 224 and S v Leso en ‘n ander 1975 (3) SA 694 (A)

[17] 2000(2) SACR 443 CC

[18] At [25]

[19] At [47]

[20] President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 CC para 48.

[21] South African Commercial Catering and Allied Workers Union and Others v Irvin &Johnson Ltd (Seafoods Division Fish Processing) 2000(3)SA 705 (CC)

[22] 1977 (4) SA 531 (A) at p 535 E-F

[23] 2011 (1) SACR SCA

[24] [2004] ZASCA 29

[25] 1920 AD 56