SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Not Reportable
  Case no: 06/2022
In the matter between:

THE STATE

and

THANDOMZI NORMAN							Accused

SENTENCE
Govindjee J

[1]	Mr Norman returned from work at Welgedacht Farm, Cradock, on 30 April 2021. He found his girlfriend, AJ [....](‘the deceased’) in the company of a male farm resident. The man had fled, and the deceased was found naked under a blanket. At Mr Norman’s insistence, he and the deceased proceeded to report what had happened to the man’s wife. That evening, after Mr Norman consumed alcohol at a tavern, he argued with the deceased and his sister. Overwhelmed by anger, and despite his sister’s attempts to intervene, he assaulted the deceased with his fist and a stick and kicked her with a booted foot. She managed to escape his attack by exiting through a window.

[2]	Mr Norman awoke the following day and returned to the tavern to consume alcohol. He refused to see the deceased when she arrived there to speak to him. They argued later that day at his home. Mr Norman enquired about the deceased’s whereabouts after she had fled the previous evening. He then assaulted her again, using his fist, a stick and his booted foot. The deceased fell on the floor and Mr Norman went to sleep. He awoke around midnight and heard the deceased snoring. He asked her if an ambulance should be called, and she indicated that she was fine. Mr Norman found her lying dead in that position on the floor the following morning. He called his sister and community members to his house. They confirmed that the deceased had passed away. The farm owner, ambulance and police were called and Mr Norman was arrested. 

[3]	Mr Norman pleaded guilty to charges of assault with intent to do grievous bodily harm and murder. He made various admissions in terms of s 220 of the Criminal Procedure Act, 1977. In particular, he admitted that due to the severity and duration of the assault he foresaw the possibility that his girlfriend would not survive. He reconciled himself with that possibility and persisted. He was convicted on both counts by this court on 28 February 2022, the State having conceded that the accepted facts were not reflective of a murder that was planned or premeditated. 

[4]	It is convenient to first deal with the sentence for the murder conviction. Section 51 of the Criminal Law Amendment Act, 1997 provides for discretionary minimum sentences for certain serious offences. A High Court shall, in terms of s 51(2)(a) sentence a first offender who has been convicted of an offence referred to in Part II of Schedule 2 to imprisonment for a period not less than 15 years. Any murder perpetrated by a first offender not falling within the scope of Part I of Schedule 2 triggers this minimum sentence unless a court is satisfied that substantial and compelling circumstances exist to justify the imposition of a lesser sentence. 

[5]	Courts are enjoined to moderate the punishments they impose with a measure of mercy and attempt to achieve a balanced outcome, serving the public interest by approaching their task in an even-handed manner. The triad of factors to be considered consists of the crime, the offender and the interests of society and these factors must be applied to consider whether substantial and compelling circumstances exist to deviate from the prescribed minimum sentence. If such circumstances do not exist, the court is also enjoined to consider an appropriate sentence, bearing in mind that the Minimum Sentences Act provides only for a minimum sentence in these circumstances, and a court must exercise a reasoned discretion in determining an appropriate sentence.

[6]	The contents of the post-mortem examination report were accepted by Mr Norman. That report confirms that the deceased suffered bilateral periorbital, haematoma, blood in the nostrils, extensive scalp haematoma and massive subdural haemorrhage. She passed away because of the head injuries she suffered at Mr Norman’s hands and sustained multiple bruises on the arms, thighs and legs. 

[7]	The deceased’s mother testified in aggravation of sentence. She confirmed that the deceased was 17 years of age when she passed away. She worked on the farm and had been staying there with Mr Norman for some time. He had advised her to stop going to school. The deceased had occasionally supported her mother with grocery money. She had also reported abuse caused by Mr Norman on a previous occasion, and the deceased had been fetched and brought to the farm where the deceased’s mother worked during 2021. She had returned to live with Mr Norman after a month. He had not offered any apology after her murder and failed to contribute to her burial. The deceased’s mother had experienced great sorrow because of her child’s death. She accepted Mr Norman’s apology when his counsel explained the details of this, and his situation, to her.

[8]	Mr Norman was 21 years of age at the time of the incident. He had been educated up to the level of grade eight and had left school due to his family’s financial constraints and to look for a job. He had four siblings. His father was an amputee, unable to work and dependent on a social grant, and his mother was unemployed. Mr Norman earned R4100 per month as a general farm worker. Counsel for Mr Norman highlighted that he was a youthful first offender who had offered some assistance to the deceased when he woke up on the night of her death. He had also not attempted to hide the truth of the matter and had contacted his sister and community members. He was remorseful and had pleaded guilty to the charges, taking the court into his confidence. While the offence was serious and involved gender-based domestic violence, the circumstances reflected an element of provocation, fuelled by alcohol. It may be accepted that there had been no direct intention and that the conviction was based on dolus eventualis.

[9]	Society demands that stern sentences be meted out in cases where a person’s life is extinguished through the conduct of another. As counsel for the state argued, gender-based domestic violence is a serious matter that plagues society. Sadly, many women, including children, live in constant fear of precisely this type of occurrence, and the supposed provocation, possibly driven by alcohol, is of minimal benefit to the accused. Mr Norman’s conduct violated various rights of the deceased, including her rights as a person under the age of 18 years, her rights to bodily integrity and freedom and security of the person. She was murdered in the place she resided by the accused, a person she would have trusted and who should have offered her protection instead of harm.

[10]	Given the circumstances, a sentence of direct imprisonment is unquestionably warranted. I have considered that the prescribed minimum sentence regime is a point of departure, and that courts should not hesitate to depart from this where it is appropriate to do so. This requires proper weighing of all the traditional sentencing considerations to determine whether the minimum sentence is proportional to the crime. In this case, Mr Norman is a youthful first offender who foresaw that his conduct might result in his girlfriend’s death, and who persisted with that conduct despite protestations from his sister. He has indicated and demonstrated remorse for his conduct by pleading guilty, disclosing the facts that led to the deceased’s passing and offering an apology to the victim’s mother. I also accept that he offered some limited assistance to his victim on the night of the incident and have noted his socio-economic circumstances and limited level of education. Mr Norman’s actual conduct, however, cannot be underplayed. Not only did he assault the deceased at his home on 30 April 2021, when it might be said that he acted in the heat of the moment, he repeated that conduct even after he had time to contemplate his actions, after his sister had tried to intervene and after the deceased had approached him of her own volition. He nevertheless proceeded to beat and kick her, a girl of 17, to death later that evening. By doing so, he violated various rights of the deceased and committed an appalling act of gender-based violence. While various ordinary mitigating circumstances do exist in this case, most notably the perpetrator’s age and that he is a first offender, these are not, in my view, substantial and compelling and do not justify a deviation from the prescribed minimum sentence. 

[11]	It must be noted that s 51(2) of the Minimum Sentences Act, dealing with Part II of Schedule 2 offences, already builds in a graded set of punishments for convictions depending upon whether a perpetrator is a first offender, second offender or a third or subsequent offender. Mr Norman benefits from this gradation and the mitigating factors identified stand to his benefit. While there are no substantial and compelling circumstances to justify a reduction of the prescribed minimum sentence, that minimum appears to me to be proportionate to the offence, the offender’s personal circumstances and the interests of society in this instance. Any increase is unwarranted given the circumstances.

[12]	In convicting Mr Norman on the count of assault with intent to cause grievous bodily harm, I was satisfied that he committed two offences approximately 24 hours apart and that this does not amount to a duplication of convictions. As to the conviction for assault with intent to cause grievous bodily harm, and bearing in mind all the circumstances previously outlined, I am of the view that a sentence of two years’ imprisonment is justified. Considering the cumulative effect of both sentences, it is appropriate for these sentences to run concurrently. A sentence of fifteen years’ imprisonment, over and above the relatively short period already spent in custody, is effective and failure to order the sentences to run concurrently would result in an aggregate penalty that is too severe. It is also appropriate that Mr Norman is considered to be unfit to possess a firearm, having been convicted of offences involving violence for which he will be sentenced to periods of imprisonment.

Order

[13]	The following order will issue:

a)	On Count 1 – Assault with the intent to do grievous bodily harm – The accused is sentenced to 2 years’ imprisonment.
b)	On Count 2 – Murder – The accused is sentenced to 15 years’ imprisonment.
c)	In terms of section 280(2) of the Criminal Procedure Act, 51 of 1977, the sentence on Count 1 is to run concurrently with the sentence on Count 2.

A. GOVINDJEE                                                                                                                                                       
JUDGE OF THE HIGH COURT

          Heard: 	28 February 2022                                                                          
Delivered: 	11 March 2022 

Appearances:	

	Counsel for the State:	Adv T. Soga
			Director of Public Prosecutions
                                                 Makhanda
                                                 046 602 3000

	Attorney for the Accused:        	Mr V. Sojada
                                                 Legal Aid South Africa	
                                                 Makhanda
                                                 046 622 9350