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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED.

 

CASE NO: A74/2019

 

In the matter between:

LONDONI PHYLLIS                                                                                               Appellant

And

THE STATE                                                                                                               Respondent

JUDGMENT

 

MALUNGANA AJ:

[1]        The appellant in this matter was tried and convicted of attempted murder of an infant child in the Regional Division of Gauteng, sitting in Protea, Soweto. She was sentenced to 10 years imprisonment.

[2]        The appellant now comes on appeal before the Full Bench of the Appeal Court, Gauteng Local Division, Johannesburg following a successful leave to appeal application in respect of both conviction and sentence.

[3]        Concerning the conviction on the merits the question would be if the appellant was wrongly convicted by the magistrate. It is trite that the powers of the appeal Court to interfere with the factual findings and evaluation of evidence of the trial Court are limited. In the absence of any misdirection the trial Court’s conclusion, including the acceptance of a witness’s evidence, is presumed to be correct. See S v Francis 1991(1) SACR 198 (A). Having said that, it remains the legal position that there is no onus on the part of the accused to prove his innocence or to convince the court of the truthfulness of any explanation that he or she gives. If the appellant’s version is reasonably possibly true, he or she should be acquitted. Mashigo & Another v The State (20108/2014) [2015] ZASCA 65 at para.17.

[4]        Before dealing with the disputed portions of the evidence, reference will be made to the undisputed facts. On 9 December 2016 the appellant entered the complainant’s house. Whilst in the house a scuffle broke out between the appellant and the complainant. As a result of the said fight the complainant’s baby of 3 weeks old sustained serious injuries. The child was later hospitalised and diagnosed with a parietal fracture on the side of the head (scull) as well as with a fracture of the mid shaft of the humerus on the upper right arm which caused swelling.

[5]        It is further undisputed that the appellant’s husband had an affair with the complainant, and the child involved in the incident was born as consequence of that relationship.

[6]        The State’s case against the appellant was based on the evidence of three witnesses. The appellant also testified but did not call any witness. I will deal firstly with the evidence of the complainant. Miss Charity Maryjane Mboweni, ( the complainant) testified that at about 15:00 she was seated on the couch with her 3 weeks old baby, when the appellant pulled the burglar door open and entered her house without knocking. She ordered the appellant to go back and knock on the door. In defiance the appellant approached the complainant who was holding the baby, lifted her hands and grabbed the minor child by the neck. She then bashed his head onto the ground. Whilst the complainant was reeling from the shock, the appellant threw the child onto the floor, picked him up with his legs and hit him again onto the floor and against furnisher. In an effort to rescue the child, the complainant descended onto the appellant. Later the complainant’s sister who was also in the house joined the fight in an effort to subdue the appellant and rescue the baby. Eventually the child was freed from the appellant. This was after the complainant bit the appellant’s hand and her sister using her fingernails to cause her to let go.

[7]        The complainant further testified that prior to the incident, the appellant called her in the morning and informed her that she would come to the house to kill the baby, and take out her operation stiches. Under cross examination by the appellant’s legal representative the complainant denied that the child fell to the ground as a result of the commotion between her and the appellant.

[8]        The next witness called by State was Doctor Miles Bartlett who completed the J88 report. He is a registered Paediatrician who runs a Close Paediatrician ICU at Garden City Clinic. He testified that a 3 weeks old child was brought to his Unit by emergency services after sustaining an injury. The child had a large swelling on the right side of the head (haematoma). Upon performing tests the child was diagnosed with a parietal fracture. The child was also diagnosed with a fracture of the mid shaft of the humerus. He noted what the complainant told him was the cause of the injuries. When asked if the injuries sustained by the child, especially with reference to the head injury to the head, could have been caused by “the child merely being dropped on the floor,” he replied as follows:  “So my feeling would be, you know when we do get children with that kind of injuries, that must have been from a fair height.”

[9]        Dr Bartlett also opined that it would take a lot of force to result in the kind of injuries sustained by the child, also with reference to the injury to the arm.

[10]      The complainant’ sister Miss Tintswalo Sheryl Mboweni, by in large corroborated the testimony of the first state witness. In brief, her version was to the effect that she was doing laundry in the kitchen when she overheard her sister asking the appellant why she did not knock. She then went to the dining room to find the appellant holding the baby by its feet and bashing him against the floor. In an attempt to rescue the child, she used her nails on the appellant while her sister was biting the appellant. Eventually the child was freed, and she took him to the bedroom.

[11]     For her part, the Appellant testified that on the day of the incident she went to the complainant’s house. She knocked at the opened door. The complainant rose from the sofa, approached and slapped her whilst she was standing by the door. She slapped her back. The complainant then called her sister and tried to hand her the child. In this process the child fell to the ground, because, instead of taking the child,  the appellant was attacked by her. At that moment the appellant tried to bend over and pick up the child that has fallen to the floor. The complainant sister then called in their brother who joined them in assaulting her whilst lying on the floor. While being assaulted the complainant’s bother tied her hands and feet with his shoe lances. She denied ever hitting the child to the floor as alleged by the complainant. As result of the assault by the trio she sustained certain injuries to her head and buttocks inflicted on her with a sjambok.

[12]     Under cross examination the appellant testified that she did not know that her husband had a child with the complainant. She said that she was not too concerned about her husband having an affair with someone else. She maintained that the complainant’s sister was in the room sitting on the sofa when she arrived in the house. She further testified that she saw the complainant pushing the child against the sofa.

[13]     Counsel for the appellant submitted that the court below misdirected itself by not taking into consideration that the siblings conspired against the appellant, and by failing to consider that the complainant was angered by the appellant’s failure to knock at the door.

[14]     Counsel for the State, on the other hand, submitted that the appellant was rightfully convicted and there was no reason why this court of appeal should interfere with the court a quo’s decision. He further submitted that the complainant’s evidence was not that of a single witness, in that other witnesses that testified on behalf of the state corroborated each other in in all material respects.

[15]     Evidence should be considered holistically and if this is done it is my view that the learned magistrate was correct in her finding that the appellant’s evidence was so improbable that it could be rejected outright. The version of the state witnesses by far was the more probable version and more in line with the objective medical evidence.  It is improbable that when the child was handed to the sister the child was dropped to the ground, which fall, caused the injuries.  Moreover, it is improbable that the child would have suffered two distinct injuries, the one to the head and the other to the arm as a result of one fall. This appellant must have realized as this explains her version that the complainant herself pushed the child towards the sofa. If this was an attempt to explain the injuries, or one of them, it was a transparent and weak attempt.  Moreover, the injuries suffered by the child was consistent with the version of the complainant. The doctor testified that the injuries were consistent with the version of the mother whilst, if it was only caused by a fall, it must have been from a considerable height, which, even on the version of the appellant, was not the case. Even more improbable, now to the extent that the credibility of the appellant becomes questionable, was her version that whilst the appellant was assaulted she concern herself with the wellbeing of the child of the very same person assaulting her. Add to this the appellant’s failure to explain why she went to the complainant in the first place considering her evidence that she was not too concerned with the relationship her husband had with the complainant. Lastly, her evidence that she did not even know that the complainant had the baby of her husband sound highly suspicious. More probable is the version of the complainant that the appellant phoned her that morning and told her that she will kill the baby. This will explain why she arrived at the home of the complainant and immediately, without warning grabbed the baby and acted in a way of a person with the intention to kill.  

[16]  The witnesses called by the State did not materially contradict themselves, nor were there any obvious improbabilities in their versions as reasoned by the court below. Dr Bartlett’s observation on how the child’s injuries were inflicted is incontrovertible. I am therefore satisfied that the magistrate correctly accepted their evidence and rejected that of the appellant. The state has proven beyond reasonable doubt that the child was injured as result of a direct force on its body inflicted by the appellant during the fight and that the appellant’s intention was to kill the baby.

[17]   I therefore conclude that there are no merits in the appellant’s appeal against conviction and the appeal should be dismissed.

[18]   That then brings me to consider whether there is merit in the appellant’s appeal against the sentence. In dealing with the issue of sentence, the appeal Court is at large to interfere with the sentence imposed by the Court a quo, only if it is disturbingly inappropriate being out of proportion with the gravity of the offence or is based on misdirection of a nature that shows that the trial Court did not exercise its discretion properly. S v Grobler 2015(2) SACR 210 (SCA) par 5, and S v Salzwedel and Others 1999 (2) SACR 586 (SCA) at par 10.

[19]    It is often said that sentencing is innately controversial. In S v Banda 1991 (2) SA 352 (B) at 355A, Friedman J explained that:

‘The elements of the triad contain an equilibrium and a tension. A court should, when determining sentence, strive to accomplish and strive at a judicious counter-balance between these elements in order to assure that one element is not unduly accentuated at the expense of and to the exclusion of the others. This is not merely a formula nor a judicial incantation, the mere stating whereof satisfies         the requirements. What is necessary is that the court shall consider, and try to balance evenly, the nature and circumstances of the offence the characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare and concern.’

[20]     It follows from the above, that in seeking to find an appropriate sentence which fits the accused the court should give a sufficient weight to the circumstances in which the crime was committed with due regard to the interest of the society.  The improper exercise of discretion enjoyed by the trial courts can easily result in an unjust sentence that serves neither the accused nor the society.

[21]     What emerges from the evidence is that there are a number of aggravating and mitigating factors which the court a quo ought to have taken into consideration in passing the sentence. The appellant was relatively a young woman at the time of the offence. She is a first offender with no previous convictions. She is the mother of a 4 year old child. I also find that anger, coupled with jealousy, and most probably the fear of losing her husband to the complainant, had played a role in the commission of the offence. I could not find anything ex facie the record that suggests that she is incorrigible. However, that does not take away from the fact that a crime committed against a vulnerable child is reprehensible.

[22]   Of all of the above factors, the issue which deserves more attention is the failure by the regional magistrate to give a proper consideration to the impact which the long term incarceration of the appellant would have upon her 4 year old daughter. It could have been that the magistrate decided that the behaviour of the appellant was so bad that a long term custodial sentence was unavoidable, but the court could have ensured through an appropriate order to ameliorate the negative impact of long term incarceration on the child. There was virtually nothing in the trial magistrate’s judgment that shows that she properly applied her mind to the duties flowing from s 28(2) of the Constitution, which provides that ‘(a) child’s best interests are of paramount important in every matter concerning the child.’ I conclude that the regional magistrate passed sentence without giving sufficient independent and informed attention as required by s 28(2) read with s 28(1) (b), to the impact on the child by sentencing the appellant to prison for 10 years. See in this regard S v M (Centre for Child law as Amicus Curae) [2007] ZACC 18; 2008 (3) SA 232 (CC).  In light of the failure by the regional magistrate to consider the negative impact which the relatively long custodial sentence would have on the appellant’s child, as well as the peculiar circumstances under which the offence in question was committed, I am of the view that it is in the interests of justice that a sentence imposed by the court below should be reduced.

 [23] The probation officer recommended that the appellant should be sentence to correctional supervision in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977.(the CPA) In my view the learned magistrate was correct in her finding that this recommendation should not have been followed. The attack of the appellant on a defenceless child was just too brutal and severe. If the complainant and her siblings did not intervene to stop the appellant from assaulting the infant the injuries would have been more severe and the death of the infant a likelihood. Accordingly, direct imprisonment for some term was the only appropriate sentence. In my view the fact that appellant was a first offender with a young child required a custodial sentence of a lesser period than 10 years imprisonment. To ameliorate the impact of the sentence part thereof should be suspended as contemplated in section 297(1)(b) of the CPA . This would hopefully deter appellant from acting violently towards other people.  

[24]     In all the circumstances, I consider that a sentence of 7 (seven) years imprisonment, of which 2 (two) years are suspended for 5 (five) years on condition that the appellant is not found guilty of any offence of which physical violence against a person is an element and sentence upon conviction to imprisonment without an option for a fine, will serve the purpose of punishment, deterrence and the protection of interests of society.

ORDER

[25]     In the result the order of this court is as follows:

            25.1 The appeal against conviction is dismissed.

            25.2 The appeal against sentence is upheld.

            25.3    The sentence imposed by the court a quo is set aside and     substituted with a sentence of 7 (seven) years imprisonment, of which 2 (two)    years are suspended for a period of 5 (five) years on condition that the appellant is not found guilty of any offence of which physical violence against a person is an element and sentenced upon conviction to imprisonment without the option for a fine.

25.4 The sentence is antedated to 1 February 2019 being the date of the original sentence.

 

                                                                                               

                                                                                                P H MALUNGANA AJ

ACTING JUDGE OF THE HIGH COURT

 

I agree,

 

                                                                                               

                                                                                                R STRYDOM

JUDGE OF THE HIGH COURT

 

 

 APPEARANCES

On behalf of the appellant:                                     Adv. A. Mbungela

Instructed by:                                                         Mabasa Attorneys

                       

On behalf of the respondent:                                 Adv. J. F. Masina

Instructed by:                                                         The Office of the Director of Public Prosecution

 

Date of Hearing:                                                     25 January 2021

Judgment Reserved:                                               25 January 2021

Judgment delivered:                                               15 February 2021

 

 

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