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:

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

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.

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.

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.

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.

''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."

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

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

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

"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;

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.

38. As recognised by the Constitutional Court, a balancing exercise has to be undertaken on a case-by-case basis. It becomes a matter of context and proportionality. Two competing considerations have to be weighed by the sentencing Court; The first is the importance of maintaining the integrity of family care. The second consideration is the duty on the State to punish criminal misconduct.

Van Heerden AJ observed further that the best interests of the child principle, which formed part of our common law as developed by the Courts, had been given international significance by the ratification by South Africa of the CRC, which provides in article 3(1) that

47. In the present care I can find no such enquiry by the Court and therefore it would appear that no, or insufficient consideration was given to the effect of the custodial sentence on the child of the appellant in this matter. Significantly, in this case the other parent is also the deceased, albeit at the hands of the appellant, and it must follow that the child has accordingly been deprived in the circumstances of the care of both parents. To this extent therefore I must find that the Magistrate did misdirect himself by failing to pay sufficient attention to the Constitutional requirements and that this Court is therefore entitled to reconsider the appropriateness of the sentence imposed by the Regional Court.

49. In the circumstances of this case, I find myself in disagreement with the Magistrate insofar as the approach adopted to sentencing in this matter and I therefore find that there has been a misdirection by him in not only failing to take into account the position of the child of the appellant, but also inasmuch as he appears to have attached little or no weight in sentencing the appellant to 13 years, to the fact that she appears to have been systematically abused, both physically and emotionally, at the hands of the deceased for some length of time. This fact, coupled with the vicious assault upon her on the night in question, coupled with the fact that the unfortunate confluence of events was undoubtedly fuelled by the alcohol which both the appellant and the deceased had consumed to apparent excess, led to the tragic events.
50. These factors, cumulatively taken into account, allow this Court to interfere with the sentence imposed. Given all the circumstances of the matter and approaching the issue as the Constitutional Court has stipulated should be done on a case by case basis, I do believe that the sentence imposed induces a sense of shock in the minds of any right-thinking person.
51. Having weighed all the relevant considerations I must nevertheless conclude that the imposition of imprisonment is both justified and called for in the appellant's case. The only question is what the duration thereof should be. bearing in mind also the provisions of section 28 of the Constitution.
52. On the basis that compelling and substantial circumstances which justify a significant deviation from the prescribed minimum sentence of 15 years imprisonment. I would uphold the appeal and the sentence of the Regional Court is set aside and is replaced with the following;

a)	The accused is sentenced to four years' imprisonment with effect from 20 August 2009;and
b)	The Department of Social Development is requested to immediately investigate the circumstances of the appellant's minor child and to take all such practical steps as may be appropriate to ensure that:

BLIGNAULTJ: I agree, it is so ordered