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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT CAPE TOWN)

CASE NO; A 532/10

In the matter between:

GERDA NOORMAN …..................................................................................Appellant

and

THE STATE …..........................................................................................Respondent

JUDGMENT DELIVERED ON 27 JANUARY 2011

WEYER AJ:

1. The appellant was charged in the Regional Court, Worcester, with the murder of HEINRICH TITUS, arising from the stabbing of the deceased in and during July 2008.

2. The appellant, who was legally represented, pleaded not guilty to the charge of murder, but the appellant was convicted, as charged, on 22 July 2009.

3. The appellant was then sentenced in the Regional Court to thirteen years direct imprisonment.

4. The appellant now appeals against the sentence only, having successfully petitioned the Judge President for leave to appeal against sentence, after leave was refused in the Regional Court

5. Since the appellant's conviction in July 2009 she has remained in detention at the Worcester Female Prison according to the information conveyed to this Court by her counsel. In effect she has accordingly served approximately 18 months of her sentence as at the date on which this appeal is being considered

6. The facts giving rise to the murder can be briefly sketched as follows: On an unspecified date in July 2008, the appellant and her common law husband, the deceased, were at home at or near Boshuis Valley Farm, Botha's Place. Worcester, where they had cohabited for some years and from which relationship a daughter, at the time some 3 years of age. was born. Other persons, including the three state witnesses. Charlene Pieters, Maryke April and Christoffel Hansen, were also present on the farm on the night in question. All these persons appear to live in close proximity to one another on the farm.

7. Hansen, or "Chris" as he was referred to in the evidence, appears to run a shebeen of sorts on the farm. Certainly it appears that on the night in question, both the deceased and the appellant had consumed substantial amounts of alcohol According to the witnesses Pieters and April, the deceased was searching for the appellant at some point and was intent upon finding her. He eventually established that she was inside the house that they shared and, having failed to gain entry by banging on the door, or obtaining keys from his neighbour, Hansen, he proceeded to kick in the door in order to gain entry. Not long thereafter, so both Pieters and April testified, they heard what can only be described as a vicious assault being carried out by the deceased on the appellant. Indeed so obviously in need of assistance was the appellant that they felt compelled to enter the house and they attempted to intervene on her behalf with the deceased. They gave an account of how the appellant was begging for him to stop the assault upon her and crying out for help. They also testified that they found a broken broomstick lying on the floor which appears to have been the assault weapon used by the deceased. The appellant pointed out various injuries that she had sustained in the assault to the two state witnesses, including injuries to her head.

8. So vicious was the attack on the appellant, that the witnesses themselves fled from the house for fear that the deceased would turn on them next. They describe his state as highly agitated, even wild. They also gave evidence of how, despite this, they hid on the verandah so as to remain close at hand to assist the appellant should the deceased resume his attack upon her.

9. It was whilst they were on the verandah peering in through a hole in the curtain, that they saw the appellant arm herself with a knife and approach the deceased, who was by then lying on the bed, and begin to stab him.

10. The deceased got up from the bed and a further struggle appears to have ensued between the appellant and the deceased during the course of which the appellant continued to stab blindly at the deceased inflicting various bodily wounds and the deceased appears to have attempted to wrestle the knife from her. It is unclear from the evidence when exactly the wound that would some weeks later turn out to be the fatal wound to the heart of the deceased, was inflicted. That it was inflicted somewhere in the course of the stabbing that night appears to have been accepted by the defence.

11. The deceased was later taken to hospital by ambulance after the appellant had summonsed help, still in a tearful, even hysterical state, and apparently remorseful for her actions.

12. The deceased was later released from hospital and allowed to return home. Some weeks later, he appears to have died from a wound sustained that night. On returning from the hospital the appellant and the deceased resumed their cohabitation, together with their young child.

13. The Regional Court found that although the attack on the deceased was not pre-meditated, and although it may have been provoked by the assault on the appellant which immediately preceded it, it was nevertheless an attack on an unarmed person and it was motivated by revenge, in circumstances where other remedies availed themselves to the appellant to seek redress for the assault upon her by the deceased.

14. In respect of sentence, the appellant's legal representative conceded in the Regional Court, correctly in my view, that murder is a serious offence and indeed it is so that the taking of a human life must rank as the most serious of all offences.

15. The Regional Court, as was the case in this Court, was urged by the appellant's legal representative to consider various factors, including her age at the time (25), the fact that she was a first time offender, that she is the mother and primary caretaker of a young child and the fact that she was employed at the time, as "compelling and substantial circumstances" for departing from imposing the minimum prescribed sentence of 15 years.

16. The Magistrate also considered whether or not her actions were in any manner taken in self defence. The Court, however, appears to have concluded that she did not act in self defence and it found that the factors enumerated above were nevertheless insufficient to merit a substantial departure from the minimum sentence being imposed, albeit that a slightly reduced sentence of 13 years direct imprisonment was considered to be reasonable in the circumstances. This conclusion appears to have been arrived at as a result of the Magistrate holding that the sentence had to be tempered with a degree of mercy. After an examination of the triad of circumstances that need to be borne in mind when imposing a suitable sentence, as espoused by the Appeal Court in S v Zinn 1969 (2) SALR 537 A, viz. the crime, the offender and the interests of society, he concluded that the punishment should fit the criminal as well as the crime and be blended with an element of mercy, according to circumstances.

17. So too the Magistrate examined the purpose of sentencing, viz. that it should act as a deterrent to other criminals, serve to prevent similar crimes being committed, as also that it should be aimed at the reformation of the offender and meet the public's expectation for appropriate retribution.

18. The Magistrate also took into account the appellant's personal circumstances, which included her relatively young age, the fact that she is unmarried and has a three year old child and the fact that she was gainfully employed before this incident occurred. So too he took into account the fact that both the accused and the deceased were using alcohol on the night in question, in coming to his decision on sentence namely that she should be sentenced to 13 years direct imprisonment

19. The question to therefore be determined is whether or not any reason exists for this Court to interfere with the sentence imposed in these circumstances by the Magistrate. This is not something which an Appeal Court should do lightly.

20. In any appeal against sentence the Court should be guided by the principle that punishment is "pre-eminently a matter for the discretion of the trial Court" and should be careful not to erode that discretion. { R v Mapumulo 1920 AD 56 and S v Rabie 1975 (4) SA 855 (A)). A sentence should only be altered if the discretion has not been judicially and properly exercised, or if there has been misdirection by the trial Court on a matter of law, or fact

21. The test laid down in both the Mapumulo and Rabie judgments is whether the sentence is vitiated by irregularity, or misdirection or is disturbingly inappropriate so as to induce a sense of shock.

22. The appellant argues that the Regional Court should have found that substantial and compelling circumstances existed to merit a substantial departure from the 15 year minimum sentence ordinarily called for the crime of murder. This argument was based largely on the fact that the appellant was young at the time of the commission of the offence, that she was a first time offender and that she acted in retaliation for the abuse which she had suffered at the hands of the deceased, as also the fact that the murder was not pre-meditated. A further factor that was raised in the argument before this Court, was the fact that she was the primary caregiver to her young child at the time of her sentencing and that this too had to be duly considered as a compelling factor in evaluating whether or not the sentence imposed by the trial Court was appropriate.

23. Whilst the State has conceded that, in accordance with the dicta in the case of S v Malgas 2001 (1) SACR 469 (SCA), all factors are relevant in determining whether compelling and substantial circumstances do exist, it has also been argued that these factors are not only limited to the personal circumstances of the accused. The seriousness of the offence as well as the interest of society should also be considered in determining the existence of compelling and substantial circumstances. I agree with this approach.

24. In S v Vilikazi (567/07) [2008] ZASCA 87 (2) (September 2008) Supreme Court of Appeal, Nugent JA, commenting on the Malgas decision, stated :

''Whether a sentence is proportionate cannot be determined in the abstract but only upon a consideration of all material circumstances of the particular case, bearing in mind what the Legislature had ordained and the other strictures referred to in Malgas."

25. What, however, do we make of the case of S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) in the context of this matter where the appellant was the primary, indeed only remaining parent of a very young child, following the murder by the appellant of the child's father? In the case of S v M the Constitutional Court, dealt specifically with the rights of a child as set forth in Section 28 of the Constitution and how those rights are both impacted upon when a primary caregiver is sentenced to a custodial sentence, and also how these rights should be protected in such circumstances.

26. Sachs J in delivering the judgment of the majority of the court came to the conclusion that the requirements of the Constitution as regards the sentencing of children "necessitate a degree of change in judicial mindset directed at the paying of focused and informed attention to the interests of the child at appropriate moments in the sentencing process with the object of ensuring that judicial officers are in a position to adequately balance all the varied interests that are involved.

27. The learned judge (at paragraph! 40]) considered that the real difficulty is how to appropriately and on a case-by-case basis balance the factors enumerated in Zinn's case (supra) without disregarding the peremptory provisions of section 28 of the Constitution. This he concluded requires a "nuanced weighing of all the interlinked factors in every case".

28. The Constitutional Court in that case - which concerned the best interests of children in the context of the imposition of imprisonment on their primary care-giver who had been convicted on multiple charges of fraud, categorised the failure on the part of the lower Court to have paid sufficient independent and informed attention to the impact on the children of incarcerating their primary care-giver, as required by section 28(2) read with section 28(1)(b) of the Constitution, as a misdirection of such severity that it was entitled to interfere with the sentence imposed by the Court a quo

29. It would appear that the basis on which the appellant's counsel therefore assails the sentence imposed by the trial Court in this matter, finds support in the Constitutional Court's approach in S v M (supra)

30. It appears from a careful perusal of the Magistrate's pronouncements on sentence in this matter that there is absolutely no reference therein to the imperative provisions of section 28 of the Constitution. Nor is there any trace therein of "an informed and nuanced weighing of ail the interlinking factors of relevance to the sentencing process" and indicative of a changed judicial mindset consonant with an awareness of what an appropriate sentence will be in respect of the appellant if regard is had to the fact that she was the primary caregiver.

31. This is not, however, where the enquiry ends. If regard is had to the appellant's personal circumstances; the seriousness of and the circumstances of the commission of the crime of which she has been convicted and the interests of the community, the need for long-term incarceration must be carefully examined as it does not automatically become trumped by the imperative provisions of section 28 of the Constitution

32. As stated in S v M (at paragraph [14] J:

'While section 28 undoubtedly serves as a general guideline to the Courts, its normative force does not stop there. On the contrary, as this Court has held in De Reuck¹, Sonderup² and Fitzpatrick,³ section 28(2). read with section 28(1). establishes a set of children s nghts that Courts are obliged to enforce.... Secondly, section 28 must be seen as responding in an expansive way to our international obligations as a State party to the United Nations Convention on the Rights of the Child (the CRC)⁴ Section 28 has its origins in the international instruments of the United Nations^5. Thus, since itsintroduction the CRC has become the international standard against which to measure legislation and policies, and has established a new structure, modelled on children s rights, within which to position traditional theories on juvenile justice⁶ I do not suggest that a children s rights model for juvenile justice, where children themselves are directly in trouble with the law. should automatically be transposed to sentencing in cases where children are only indirectly affected because their primary caregivers are about to be sentenced. What should be carried over, however is a parallel change in mindset, one that takes appropriately equivalent account of the new constitutional vision.".

This was further elaborated at Paragraph [17], as follows;

'Regard accordingly has to be paid to the import of the pnnciples of sentencing of a primary caregiver. The four great principles of the CRC which have become international currency, and as such guide all policy in South Africa in relation to children are said to be survival development, protection and participation⁷ What unites these principles, and lies at the hean of section 28, I believe, is the right of a child to be a child and enjoy special care.⁸”, where upon the Court concluded that this all "...presupposes that in our new dispensation the sins and traumas of fathers and mothers should not be visited on their children.'.

33. In S v M the curator and the amicus also pointed out that South Africa's obligations under international law "...underscored the special requirement to protect the child's interests as far as possible", they argued that Article 30(1) of the African Charter on the Rights and Welfare of the Child, expressly dealing with "Children of Imprisoned Mothers' and that it provides that:

"Stales Parties to the present Charter shall undertake to provide special treatment of expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law and shall in particular:

a) ensure that a non-custodial sentence will always be first considered when sentencing such mothers;

b) establish and promote measures alternative to institutional confinement for the treatment of such mothers,

c) establish special alternative institutions for holding such mothers:

d) ensure that a mother shall not be imprisoned with her child;

e) ensure that a death sentence shall not be imposed on such mothers;

f) the essential aim of the penitentiary system will be the reformation, the integration of the mother to the family and social rehabilitation". (Emphasis added.)

34. The curator in that matter emphasised that section 28(2) of the Constitution should be read with section 28(1 )(b) which provides that every child has a right to family or parental care, or appropriate alternative care when removed from the family environment. Taken together, he contended, these provisions impose four responsibilities on a sentencing Court when a custodial sentence for a primary caregiver is in issue. They are:

• to establish whether there will be an impact on a child;

to consider independently the child's best interests;

to attach appropriate weight to the child's best interests;

to ensure that the child will be taken care of if the primary caregiver is sent to prison.

As was held by the Court in S v M, these too appear to me to be practical modes of ensuring that section 28(2) read with section 28(1 )(b), is applied in a sensible way. I agree with the sentiments expressed by the Constitutional Court that this approach takes appropriate account of the pressures under which the Courts work, without allowing systemic problems to snuff out their constitutional responsibilities.⁹ It is imminently sensible in this context then to expect of any Court when imposing sentence on a primary caregiver to give focused and informed attention to the interests of children at appropriate moments in the sentencing process. The objective being to ensure that the sentencing Court is in a position adequately to balance all the varied interests involved, including those of the child placed at risk. I further agree that proper regard for constitutional requirements necessitates a degree of change the judicial mindset. "Specific and well-informed attention" will always have to be given to ensuring that the form of punishment imposed is the one that is least damaging to the interests of the children, given the legitimate range of choices in the circumstances available to the sentencing Court.

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