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[2010] ZAECGHC 30
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Juju v S (CA&R 164/2009) [2010] ZAECGHC 30 (30 April 2010)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
CASE NO: CA&R 164/2009
DATE HEARD: 28 April 2010
DATE DELIVERED:
In the matter between
THEMBILE JUJU Appellant
And
THE STATE Respondent
JUDGMENT
REVELAS J:
With leave of the trial court, the appellant appeals against the sentence of twelve months’ direct imprisonment imposed upon him by the District magistrate of Dordrecht. The appellant pleaded guilty to, and was convicted of assault with the intention to cause grievous bodily harm. The appellant aged 27 years, assaulted his wife in a fit of jealousy. It is common cause that the appellant and his wife were separated from each other for three months when the assault occurred. They have a four year old daughter.
The relevant facts in this case appear from the appellant’s written plea explanation which was handed to the Court a quo by the appellant’s legal representative, and the evidence led.
On 7 June 2009, in the afternoon, the appellant saw his wife (the complainant) entering the home of Mr. Vasi, the uncle of one Ayanda Baba. After about two hours the appellant decided to investigate his wife’s activities inside this house. He knocked on the door repeatedly and had to wait about thirty minutes before the door was finally opened by Ayanda. The complainant was in the bed and it was very clear to the appellant that his wife and Ayanda had been in bed together as lovers. Ayanda ran away when he observed the irate appellant. The complainant then had to bear the full brunt of the appellant’s jealous rage. The appellant admitted that he hit her with a broomstick, a glass lamp and an empty bottle. He also stabbed her with a bottle. She sustained wounds and bruises, but no fracture of her arm (as found by the magistrate in his judgment).
In her judgment on sentence, the trial magistrate correctly emphasized the seriousness of the assault and the injuries sustained by the complainant. She also gave due regard to the prevalence of this type of offence in the community and stressed the fact that the victim of the assault was a woman. Because the trial magistrate believed that the appellant and the complainant were no longer married, (they had been separated for three months, but not divorced), she held the view that there was no cause for the appellant to be jealous if the complainant slept with other men.
During argument before the magistrate, the State Prosecutor and the appellant’s legal representative were ad idem that whatever sentence the magistrate intended to impose, it should be a fully suspended one. The magistrate disagreed. Her reasoning was that only a term of direct imprisonment would suffice because any lesser sentence would undermine the seriousness of the offence, and she intended the sentence to “be a lesson to the accused as well as would be offenders”.
A court of appeal sitting in judgment of a sentence imposed by another court, should not readily interfere in the exercise of the court a quo’s judicial discretion, which is ultimately what the sentencing process entails. Sentencing is the prerogative of the trial court in the first place. Only if the sentence is vitiated by (1) irregularity, (2) misdirection, or (3) where there is a striking disparity between the sentence imposed and that which the court sitting on appeal would have considered appropriate, interference would be justified. (See: Petkar 1988 (3) SA 571 (A) at 574 C).
In my view, the magistrate overemphasized the interests of the community and the fact that the victim was a female, at the expense of the appellant’s personal circumstances and particularly, the circumstances surrounding the offence.
The very fact that the complainant was a female (regarded as an aggravating factor by the trial court) is highly relevant when the mitigatory circumstances are considered. She was the mother of the appellant’s child and he was clearly still interested enough in her to be upset about what she was doing in another man’s house. The fact that she and the appellant had been separated for three months at that stage, does not mean that the appellant is not reasonably entitled to be jealous if she formed another relationship. They were still married and the appellant clearly still had strong feelings for his wife. He waited for two whole hours before knocking on Mr. Vasi’s door. He probably worked himself up into an emotional state during that time. Then he tried for thirty minutes to gain entry into the house by knocking, only to have his worst suspicions confirmed when the door was finally opened. This was clearly a crime of passion and a factor which the magistrate should have taken into account as a mitigating factor, particularly because the appellant is a first offender. There was no history of violence in his relationship with his wife. In my view, a partly suspended sentence would have had the desired deterrent effect which the trial magistrate had in mind.
Whereas the injuries sustained by the complainant were indeed serious, there were no lasting injuries. It was argued by Mr. de Jager, for the appellant that the magistrate erred in judging the injuries to be more serious than they appear to have been. There appears to be merit in this submission. For instance, the magistrate’s finding that the complainant’s arm was fractured during the assault was incorrect. At court the complainant testified that she was well.
Another fact pertaining to the appellant’s personal circumstances which ought not to have been overlooked, was the fact that the appellant was a breadwinner with a duty to support his daughter who is now only four years old. The community has a greater interest in a child being fed and clothed by her own father, than seeing a man who assaulted his wife once when discovering her in another man’s bed, go to prison for a whole year.
It is so that the community, particularly its female members, have been exasperated and their patience sorely tried, by far too many men in this country who abuse women. However, those considerations should not outweigh the valid mitigatory considerations in this case. A sound balance must be struck between the interests of the community, the seriousness and other circumstances surrounding the assault in question, and the appellant’s personal circumstances outlined above. This balance would be satisfactorily attained if half of the sentence imposed is suspended. In my view, a sentence of one year’s imprisonment is simply too harsh if all the aforesaid factors are considered and weighed up against each other.
In the circumstances, the following order is made:
1. The sentence dated 16 July 2009, imposed on the appellant, Thembile Juju, is hereby altered to read:
“The accused is sentenced to twelve (12) months’ imprisonment, of which six months is suspended for a period of five years on condition that the accused is not convicted of an offence of which violence is an element and for which he is sentenced to a term of imprisonment without the option of a fine committed during the period of suspension.”
2. The aforesaid sentence is antedated to 16 July 2009.
________________
E. REVELAS
JUDGE OF THE HIGH COURT
I agree,
________________
P. TSHIKI
JUDGE OF THE HIGH COURT
Appearing for Appellant: Adv. De Jager
Instructed by the Legal Aid Board
Appearing for Respondent: Adv. v Heerden
Instructed by DPP