This
matter was placed before me for review and a perusal of the record
revealed that nothing turned on the conviction but the sentence was
disturbingly lenient.
The
accused is a male adult aged 29 years old. He is employed as a miner
at a small scale mine. He appeared before a magistrate at Zvishavane
on the 8th
of December 2011 facing a charge of contravening section 4(1) as read
with section 3 of the Domestic Violence Act [Chapter 5:16]. He
pleaded
guilty and was duly convicted and was sentenced to pay a fine of
US$150=, or, in default of payment, 30 days imprisonment. In
addition, 3 months imprisonment were wholly suspended for 3 years on
condition accused does not within that period commit any offence
involving domestic violence and for which he is sentenced to
imprisonment without the option of a fine....,.
In
his reasons for sentence the magistrate comments as follows;
“…,.
I have noted that the complainant did not sustain serious injuries as
a result of this assault on her by accused person. That is shown by
the fact that she did not seek medical attention…,.”
The
learned magistrate then goes on to say;
“…,.
When they got home, he picked up a log and hit the complainant
several times all over the body. He picked a stone and struck the
complainant once on top of her right eye. As a result, she sustained
a deep cut thereby showing that the force used to assault her was
excessive…,.”
I
must say that I find the reasoning of the learned magistrate to be
somewhat muddled and confusing. He is alive to the fact that he is
dealing with a serious case of assault. He makes the startling
conclusion that the injuries are not serious because the complainant
did not seek medical attention. Magistrates should always request the
complainants in such cases to obtain medical reports for the court to
assess not only the degree of injuries suffered but the likelihood of
any permanent disability.
I
note here that both prosecutors and magistrates pay little regard to
the provisions of section 5 of the Domestic Violence Act [Chapter
5:16] which places duties on police officers, in relation to domestic
violence, in the following terms under section 5(2);
“A
police officer to whom a complaint of domestic violence is made or
who investigates any such complaint shall obtain for the complainant,
or advise the complainant how to obtain shelter or medical treatment,
or assist the complainant in any other suitable way;”
It
is clear that the magistrate could have easily postponed the passing
of sentence pending the production of a medical report. The
importance of medical reports in such cases cannot be over
emphasized. See the case of S v Anock 1973 (3) SA 128 (RA).
The
attack upon the complainant was clearly brutal and severe upon a
defenceless woman who could have easily died given that she was hit
indiscriminately all over the body until she fell to the ground. A
sentence of a paltry US$150=, in my view, trivializes the offence.
Cases
of domestic violence are on the increase, and, in some instances,
death has resulted. The penalty provided under section 4 of the
Domestic Violence Act [Chapter 5:16] is in the following terms;
“…,
any person who commits an act of domestic violence within the meaning
of section 3 shall be guilty of an offence and liable to a fine not
exceeding level fourteen or imprisonment for a period not exceeding
ten years or to both such fine and such imprisonment.”
I
am of the view that unless sufficiently deterrent sentences are
imposed by the courts, as provided for under the Domestic Violence
Act, the whole purpose of this piece of legislation will never be
realized. Men will continue to brutalize their wives, and, equally,
so some men will continue to be subjected to physical abuse by their
spouses in the knowledge that they will go to court and pay a small
fine. Whilst each case should be decided on its own merits in serious
cases custodial sentences are appropriate.
In
casu, the assault was sustained and vicious. I note that both husband
and wife may have been under the influence of intoxicating liquor but
this does not lower the moral blameworthiness of the accused. I am of
the considered view that the sentence is manifestly lenient – see
the case of The State v Memory Mushangwe HH80-07. The sentence must
fit both the offender and the offence. Had the trial magistrate
applied his mind properly to sentence he would not have imposed a
wholly suspended sentence coupled with a small fine.
He
fell into error and I accordingly withheld my certificate.
