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South African Criminal Law Reports, The (1990 to date)/CHRONOLOGICAL LISTING OF CASES January 1990 to August 2023/2023/Volume 1: 567 ­ 678 (June)/S v
SEPTEMBER 2023 (1) SACR 662 (WCC)

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S v SEPTEMBER 2023 (1) SACR 662 (WCC)

2023 (1) SACR p662

Citation 2023 (1) SACR 662 (WCC)

Case No A 203/2022

Court Western Cape Division, Cape Town

Judge Henney J and Wathen­Falken AJ

Heard March 9, 2023

Judgment March 9, 2023

Counsel Counsel details not supplied

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Domestic violence — Protection order — Breach of — Domestic Violence Act 116 of 1998, s 17(a) — Sentence — Appellant convicted of
breach of protection order obtained by his mother, and two counts of assault with intent to do grievous bodily harm — Victims of assault
elderly persons — Crimes of violence committed against older persons inherently aggravating — Effective sentence of three years'
imprisonment confirmed on appeal.
Headnote : Kopnota
The appellant appealed against sentences meted out to him for two assaults with intent to do grievous bodily harm and for breaching the terms
of a domestic­violence protection order in contravention of s 17(a) of the Domestic Violence Act 116 of 1998. The charges stemmed from
incidents at the home of the appellant's mother (who had obtained the protection order), when the appellant attacked the complainant on the
first count, an elderly man, by pushing him off his chair onto the floor, and by hitting the second complainant with a spade on his head and arm.
The breach of the order was constituted by the appellant having sworn at and threatened to kill his elderly mother. The magistrate sentenced
the appellant on the first two counts, taken together, to a period of two years' imprisonment; and, on the count of breach of the protection
order, to an additional 12 months' imprisonment. The court took into account that the accused had previously been convicted of three counts of
contravention of protection orders granted in terms of the Protection from Harassment Act 17 of 2011 for which he had been sentenced to 12
months' imprisonment suspended for five years and of assault with intent to do grievous bodily harm for which he had been sentenced to three
months' imprisonment.

2023 (1) SACR p663

Held, that, the fact that the appellant had been in custody for a period of six months awaiting the finalisation of the case was not a factor to
be taken into account, as the appellant had brought the pre­trial detention upon himself for failure to comply with the conditions of his initial
release. It could not sit well with any court or be in the interests of justice that, where an accused person after having been released on bail or
warning with certain conditions, and subsequently breached any of those conditions which resulted in their incarceration, brought about by him­
or herself, this could be considered as a mitigating or sentence­reducing factor. This was especially so in cases of domestic violence, where
such breach threatened the safety of the victim and had necessitated the incarceration of the perpetrator. (See [11] – [12].)
Held, further, that our courts had in general condemned crimes of violence committed against older persons. That type of offence was inherently
aggravating because of the frailty of the victim, the victim's inability to defend him­ or herself, and that the offences usually happened behind
closed doors, out of sight of other family members, neighbours and witnesses. The mere fact that the complainants had not sustained any
serious physical injuries could not detract from the seriousness of the offence, and that could not be regarded as a mitigating circumstance.
The court a quo had not misdirected itself and the sentence was balanced and proportionate to the offences. (See [18] – [24] and [27].)
Cases cited
S v Baloyi and Others 2000 (1) SACR 81 (CC) (2000 (2) SA 425; 2000 (1) BCLR 86; [1999] ZACC 19): dicta in paras [11] – [12] applied
S v Gule 2019 JDR 0173 (ECB): applied
S v Jo Au 2013 JDR 1127 (GNP): dictum in para [10] applied
S v Mathe 2019 JDR 1079 (GP): dictum in para [22] applied
S v Moyo 1979 (4) SA 61 (ZRA): dictum at 63E – F applied
S v Pillay 1977 (4) SA 531 (A): applied
S v Rhini 2014 JDR 1092 (ECG): dictum in para [10] applied
S v Salzwedel and Another 1999 (2) SACR 586 (SCA) (2000 (1) SA 786; [2000] 1 All SA 229): applied.
Legislation cited
The Domestic Violence Act 116 of 1998, s 17(a): see Juta's Statutes of South Africa 2021/22 vol 1 at 2­511
The Protection from Harassment Act 17 of 2011: see Juta's Statutes of South Africa 2021/22 vol 1 at 2­691.
Order
The appeal against sentence is dismissed.
Judgment
Henney J and Wathen­Falken AJ:
Introduction
[1] The appellant appeared before the Magistrates' Court Worcester on 20 September 2022 and was convicted on two counts of assault with
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the intent to do grievous bodily harm and one count of contravening s 17(a)
 Judgment
Henney J and Wathen­Falken AJ:
Introduction
[1] The appellant appeared before the Magistrates' Court Worcester on 20 September 2022 and was convicted on two counts of assault with
the intent to do grievous bodily harm and one count of contravening s 17(a)

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Henney J and Wathen­Falken AJ

of the Domestic Violence Act 116 of 1998 (DVA), for having failed to adhere to a protection order issued in terms of the DVA. He was legally
represented and pleaded guilty to all three charges. His guilty plea is set out in a statement presented to the court in accordance with the
provisions of s 112(2) of the Criminal Procedure Act 51 of 1977 (CPA).
[2] The three offences were committed during an incident which took place on 6 March 2022 at the home of Paulina September, the appellant's
mother, who is the complainant on the third count. Also present were Ben Davids (the first complainant) and Gideon Solomons (the second
complainant). In his s 112(2) statement with regard to the first charge, the appellant states that on this particular day he was involved in an
argument with the first complainant who swore at him. He became angry and pushed the first complainant from the chair that he was sitting on,
causing him to fall onto the floor. He admitted that this particular complainant is a much older person and that he had foreseen the possibility
that he could sustain serious injuries, when he pushed him from the chair, onto the floor.
[3] In respect of count two, the appellant stated that, after he had pushed the first complainant on the first count onto the floor, the second
complainant came towards him, and he took a spade and hit this complainant on his head and arm. In his address to court before sentence, the
prosecutor stated that although the two complainants suffered injuries, it was not sufficiently serious to warrant medical intervention or care.
[4] In respect of count three, the appellant admitted that he breached a domestic­violence protection order, which was granted in favour of his
mother on 9 November 2021, in that he swore at her and threatened to kill her.
[5] Following the plea proceedings, he was sentenced on counts 1 and 2 to a period of 24 months' imprisonment after the magistrate had taken
the counts together for the purpose of sentence. On count 3 he was separately sentenced to an additional 12 months' imprisonment. The
appellant seeks to appeal the sentence imposed with leave of the court a quo.
[6] The sentencing proceedings
Both the appellant's attorney and the prosecutor in the court a quo placed the relevant facts before the court without leading formal evidence
which can be summarised as follows:
[6.1] The appellant was 30 years old at the time of commission of the offence and has two minor children aged 8 and 9 years who resided
with their mother. He completed grade 12 and was employed at the time of his arrest. The appellant was in custody for six months prior to
sentence proceedings.
[6.2] Previous convictions were admitted and proven as follows:
[6.2.1] On 1 November 2011 the appellant was convicted on three counts of contravention of protections orders granted in terms of
the Harassment Act 17 of 2011 (HA). The charges were taken together for purposes of

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Henney J and Wathen­Falken AJ

sentence, and he was sentenced to 12 months' imprisonment suspended for five years on condition that he is not convicted of breach
of s 18 of the HA; and

[6.2.2] on 26 November 2019 the appellant was convicted of assault with intent to do grievous bodily harm and sentenced to three
months' imprisonment.

[7] Grounds for appeal

[7.1] The appellant submitted that the court a quo overemphasised the previous convictions resulting in a disproportionate sentence in
relation to the offences, the interest of society and the personal circumstances of the appellant. Moreover, that the magistrate did not
consider the cumulative effect of the sentence. Particularly, in light of the fact that no serious physical injuries were proven to be
present.
[7.2] He also submitted that the court a quo failed to consider alternative means of punishment, other than direct imprisonment, thereby
failing to address any kind of rehabilitation for the appellant, in the form of a suspended sentence or one of correctional supervision. And
he submitted that the court a quo erroneously took into consideration that the previous conviction for the contravention of a harassment
order was an order granted in favour of his mother to stop him from harassing her, in the absence of any evidence to substantiate it.
[7.3] Furthermore, that the court a quo failed to take into account the fact that the appellant spent six months in prison awaiting trial.
Lastly, the court a quo did not consider the fact that the appellant pleaded guilty and showed remorse for his actions.
[7.4] The appellant submits for all of these reasons that the court a quo misdirected itself which led to a failure of justice when it imposed the
sentence on the appellant.
[7.5] The respondent on the other hand in opposing this appeal submitted that the magistrate did not misdirect himself. And that the
sentence imposed by the court a quo was not shockingly inappropriate or disproportionate, given the conduct of the appellant. The
respondent submits that given the prevalence of these types of offence, particularly within domestic relationships the protection order in
favour of complainant was not sufficient to deter the offender from violent conduct toward victims of domestic abuse, as has happened in
this particular case.
[8] Discussion
'Sentencing is pre­eminently within the discretion of the trial court, and the appeal court may interfere only if there is clear misdirection on the part of the trial
court or the sentence is shockingly severe. The correct approach is to apply the triad of factors enunciated in S v Zinn, namely

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Henney J and Wathen­Falken AJ

weighing: the personal circumstances of the accused; the interest of society; and the nature and seriousness of the offence.' 1

[9] The essential enquiry for this court is to assess whether the court a quo in imposing the sentence, exercised its discretion judicially. In fact,
a mere misdirection is not in itself sufficient for an appeal court to interfere. As stated in the case of S v Pillay, 2 the misdirection of the court
a quo must be of such a nature, degree or seriousness that it shows, directly or inferentially, that the court did not reasonably exercise its
discretion properly.
[10] More recently in S v Salzwedel and Another, 3 the Supreme Court of Appeal stated that an appeal court can only interfere with a sentence
of a trial court in a case where the sentence imposed was shockingly inappropriate.
[11] We do not agree that the magistrate committed any material misdirection during the sentencing of the appellant. Whilst the fact that the
appellant was in custody for a period of six months awaiting the finalisation of the case was not specifically mentioned, it cannot in our view, be
regarded as a material misdirection. It does not mean that it was not considered. In any event, it seems that the appellant brought the pretrial
detention upon himself for failure to comply with the conditions of his initial release.
[12] The court revoked its order of release after it emerged that he failed to adhere to his conditions of release as well as the protection order,
after he visited the house of the third complainant. It cannot sit well with any court or for that matter be in the interests of justice that where
an accused
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which results in his or her incarceration brought about by him­ or herself, this could be considered as a mitigating or sentence reducing factor.
 regarded as a material misdirection. It does not mean that it was not considered. In any event, it seems that the appellant brought the pretrial
detention upon himself for failure to comply with the conditions of his initial release.
[12] The court revoked its order of release after it emerged that he failed to adhere to his conditions of release as well as the protection order,
after he visited the house of the third complainant. It cannot sit well with any court or for that matter be in the interests of justice that where
an accused person, after having been released on bail or warning with certain conditions, and subsequently breaches any of those conditions
which results in his or her incarceration brought about by him­ or herself, this could be considered as a mitigating or sentence reducing factor.
Especially in cases of domestic violence, where such a breach threatens the safety of the victim, which necessitates the incarceration of the
perpetrator.
[13] In our view, even if it can be said that the magistrate, for failing to take this into consideration, had misdirected himself, it is not a
misdirection that would vitiate the sentence imposed by the magistrate to the extent that we should interfere with it.
[14] We also do not agree that there was an overemphasis by the magistrate on the previous convictions of the appellant, because in this kind
of case it is a material and weighty consideration. Because it illustrates a propensity on the part of the appellant not to adhere to court orders,
and also his inclination to commit violent offences. In circumstances where the violence and threats of violence in the current matter were
similar to those which he was previously convicted of.

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Henney J and Wathen­Falken AJ

[15] We furthermore do not agree that the court a quo took into consideration as a fact that the previous conviction for failure to comply with
the harassment order was one which relates to an order granted in favour of his mother. In this regard, the court a quo said: 4
'You have previous convictions. There is also a harassment order that your mother took out against you, protection order.'

From our understanding, the court mentioned that the appellant had previous convictions, but never specifically said it was a previous
conviction for contravening the provisions of the HA, in respect of the mother of the appellant. The magistrate it seems made a mistake and
misspoke when he mentioned HA and corrected it himself in the same sentence by saying 'protection order'.
[16] It is not in dispute that a protection order was granted against the appellant in terms of the DVA, which relates to the breach as per count
3. Whilst the other two victims were not under the protection of the protection order, it clearly seems that the crimes committed against them
were as a consequence of the appellant's breach of the protection order. It is not exactly clear what the ages of the respective complainants
were, but it seems on the appellant's own admission that the first complainant was a frail person who could have been seriously injured as a
result of his conduct.
[17] The first complainant, who is the intimate partner of his mother, just as the second complainant, could not defend himself against the
appellant. What, however, is not in dispute is that all the complainants were older persons, and what is furthermore apparent from the conduct
of the appellant is that he threatened and assaulted them.
[18] Our courts have in general condemned crimes of violence committed against older persons. In S v Rhini5 it expressed itself as follows when
it said:
'The deceased was a frail man of advanced age. The perception and attitude of the community is that the elderly and frail should be protected and any attacks
on them are viewed with abhorrence.'

[19] In S v Jo Au6 the court with reference to Du Toit Straf in Suid­Afrika (at 90), regarding the circumstances and factors that should be
taken into account in the imposition of sentence, supported the following submission:
'Die feit dat 'n hulpelose of ou, weerlose person die slagoffer van 'n misdryf was, verhoog uiteraard ook die laakbaarheid van die betrokke wandaad. Dit is so
omdat dit spreek van gevoelloosheid en lafhartigheid aan die kant van die beskuldigde, en ook die diepste afkeuring en verontwaardiging van die gemeenskap
ontlok.' 7

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Henney J and Wathen­Falken AJ

And further in that judgment in para 13 the court refers to the earlier decision of S v Moyo8 and said:
'Where elderly, defenceless, unarmed and frail people become victims of crime, courts should robustly punish offenders in order to deter others who are
likeminded. Courts are the instruments through which the society exerts punishment on offenders and the punishment that courts impose on them must
accordingly reflect the deep abomination with which the law­abiding and God­fearing society regards . . . serious crime.'

[20] In S v Mathe9 the court expressed similar sentiments where it said:

'Many cases involving murder or violent crimes between members of the same family have become prevalent and have frequented our courts. In Kekana v The
State (629/13) [2014] ZACSA 158 (1 October 2014) Mathopo AJA (as he then was), remarked in para 20 as follows:
"Domestic violence has become a scourge in our society and should not be treated lightly. It has to be deplored and also severely punished. Hardly a day
passes without a report in the media of a woman or a child being beaten, raped or even killed in this country.'"

And with particular reference to domestic abuse of a parent the court went on to say the following also in para 22:
'In this case the accused attacked a vulnerable and unarmed elderly woman who was his mother. What is more concerning and serious is that the deceased, for
her own reasons, did not consider seeking protection against the accused and the abuse which ultimately led to her death. This specific crime is worth
mentioning with regard to the intimidation and vulnerability of women in domestic abuse cases. They face constant fear and guilt that make approaching the
Courts that much more difficult.'

[21] In coming back to this case, it is one of those unfortunate incidents where a parent and other older persons had been physically abused
and threatened by an adult child. There seems to be a prevalence of these offences where elderly persons and more frail persons who are
unable to defend themselves are assaulted by their children, or people that live with them in the same household. It usually happens in a
domestic setup which can be characterised as a form of domestic abuse. In South Africa a lot of prominence has been given by our society and
our courts to cases of domestic abuse and violence between spouses and between life partners, which are commonly referred to as gender­
based violence.
[22] It has also become prevalent that parents seek protection against domestic abuse from adult children within the domestic environment

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through the DVA. The physical and emotional abuse of the elderly is no less abhorrent and reprehensible than domestic abuse, in the form of
gender­based violence, which happens between spouses and between life partners. As shown above, it seems our courts, in sentencing
perpetrators who commit crimes, especially violent crimes against the elderly, have imposed sentences to express their utmost abhorrence for
the conduct of such persons.
[23] This type of offence is inherently aggravating, because of the frailty of the victim, the victim's inability to defend him­ or herself and it
usually happens behind closed doors, out of sight of other family members, neighbours or witnesses. In many cases, the victims would not want
to report the crime out of fear for the perpetrator or parental guilt and shame. It is usually discovered by other members of the family or
members of the medical profession, who would fortuitously discover that the elderly victim had been physically abused. In this regard the
Constitutional Court in S v Baloyi and Others1 0 said the following about this domestic violence in general, which in our view, would be equally
applicable in this particular case. Sachs J said the following:
'All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society
and, in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so
frequently goes unpunished.
[12] In my view, domestic violence compels constitutional concern in yet another important respect. To the extent that it is systemic, pervasive and
overwhelmingly gender­specific, domestic violence both reflects and reinforces patriarchal domination, and does so in a particularly brutal form.'
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This in our view, cannot be regarded as a mitigating circumstance but is regarded as a neutral factor that cannot seriously be taken into
 'All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society
and, in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so
frequently goes unpunished.
[12] In my view, domestic violence compels constitutional concern in yet another important respect. To the extent that it is systemic, pervasive and
overwhelmingly gender­specific, domestic violence both reflects and reinforces patriarchal domination, and does so in a particularly brutal form.'

[24] The mere fact that the complainants have not sustained any serious physical injuries, cannot detract from the seriousness of the offence.
This in our view, cannot be regarded as a mitigating circumstance but is regarded as a neutral factor that cannot seriously be taken into
consideration in favour of the appellant. This is so because given the age and the frailty of the complainants, any form of assault on them
should be considered as patently serious and aggravating.
[25] It is clear that given the conduct of the appellant the sentence of direct imprisonment under the circumstances was not inappropriate. The
previous convictions considered in light of the current charges, are a clear indication that the appellant has a propensity for violence and has no
regard for court orders. In these circumstances the appellant's personal circumstances should take a back seat and the seriousness of the
offence as well as the interests of society should weigh more heavily.
[26] The sentencing court in imposing sentence clearly took cognisance of the fact that the three charges emanated from the same incident
and took counts 1 and 2 together for purposes of sentence. This stands in

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direct contradiction to the averment made by counsel for the appellant that the court did not have regard for the cumulative effect of the
sentence so imposed.
[27] The magistrate in our view did not misdirect himself, and we are satisfied the magistrate imposed a balanced sentence and properly
considered all the circumstances in a proportionate manner.
[28] In the result, we make the following order:
The appeal against sentence is dismissed.

1 S v Gule 2019 JDR 0173 (ECB).

2 1977 (4) SA 531 (A).
3 1999 (2) SACR 586 (SCA) (2000 (1) SA 786; [2000] 1 All SA 229).
4 Record p 16.
5 2014 JDR 1092 (ECG) para 10
6 2013 JDR 1127 (GNP) para 10
7 Loosely translated:
'The fact that a helpless or old, defenceless person was a victim of a crime, naturally also increases the reprehensibility of the relevant misdeed. That is so
because it shows a heartlessness and cowardice on the side of the accused, as well as the severest disapproval and outrage of society.'
8 1979 (4) SA 61 (ZRA) at 63E – F.
9 2019 JDR 1079 (GP) para 22.
1 0 2000 (1) SACR 81 (CC) (2000 (2) SA 425; 2000 (1) BCLR 86; [1999] ZACC 19) (CCT 29/99; 3 December 1999).

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