The Supreme Court of Appeal has upheld the decision of a lower court, which sentenced a woman convicted of killing her husband to eight years despite her cry of enduring abuse for years.
The Kimberly High Court convicted the woman for the murder of her partner of 15 years, who was 34 at the time of his death. The couple cannot be named as one of their two children is still a minor.
The woman was 13 years older than the deceased.
She stabbed her partner in 2016, after he took polony from the groceries she had just bought without her permission.
While her conviction carried a minimum sentence of 15 years, the court sentenced her to eight years on November 8 2018, citing “substantial and compelling” circumstances.
The court found the evidence of domestic violence and abuse at the hands of the deceased was not enough as she had not provided any medical evidence of hospital treatments to support her allegation.
It further found that the domestic violence interdict she had secured did not mention any physical abuse at the hands of her partner.
During the trial, the state placed emphasis on the events of the day of the incident, which placed the woman’s conduct as consistent with “a woman scorned”.
Despite these shortcomings, the high court concluded that there was some evidence of abuse in the protection order she had obtained, which could not be ignored.
The court then reduced her sentence because of the perpetual violence that had marred her relationship with the deceased.
She then petitioned the high court for leave to appeal both her conviction and sentence. She was only granted leave to appeal her sentence.
In her appeal, she argued that the court should take into account persistent threats that her husband made to leave her for another woman whenever she refused to comply with his demands.
This, she argued, was another part of the emotional abuse.
During the trial, the woman showed the court three facial injuries on her cheek, chin and forehead caused by stab wounds, which she claimed had been inflicted by the deceased. However, she did not lay charges because she was scared of him.
She claimed that she stabbed the deceased in self-defence but her failure to show injuries weakened her version of events.
She further argued that the high court had minimised her personal circumstances when it sent her to jail as she was the primary caregiver of minor children and their sole breadwinner. She argued that sending her to jail would have a devastating effect on the children.
Acting judge of appeal Thina Siwendu found that her argument was no longer strong.
“Significantly, the above issues have been overtaken by various events. The appellant has been on bail pending the appeal since 2018. At the time of the probation report in September 2018, her children were 15 and 11 years [old]. One child has reached the age of maturity and the younger child is 16 years,” Siwendu said.
Siwendu found that the lower court had exercised its discretion appropriately. “The sentence is not disproportionate given the seriousness of the offence. Thus, there is no basis to interfere with the sentence imposed.
“It is trite, based on a long line of decided cases, that an appellate court may only interfere with the sentencing discretion of the trial court on limited grounds; if it is satisfied that the discretion was not properly exercised or the sentence was shockingly inappropriate or disproportionate.
“In addition to the shortcomings above, the appellant did not testify in mitigation of her sentence. She does not explain the failure to do so,” Siwendu said.
dlaminip@sowetan.co.za
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