- The man assaulted his wife after she questioned why he wanted to borrow an expensive decorative mat.
- He later assaulted his wife again when she tried to record him attacking an employee.
- The Supreme Court of Appeal found there was no reasonable chance of success in challenging his five-year prison sentence for unlawful firearm possession.
A dispute over an expensive decorative mat led to an assault on a man’s wife, followed by another violent incident involving the same woman and a household employee.
The man, a former educational specialist, failed to convince the Supreme Court of Appeal to reconsider his five-year prison sentence for unlawful firearm possession. The case came from two incidents at the man’s home in June and July 2021.
On 26 June 2021, the man asked his wife to lend him an expensive decorative mat. When she questioned why he needed it, he assaulted her by grabbing her, banging her head against a wall, pushing his finger into her nose and forcefully pushing her against a wall, leaving injuries on her face.
A second incident happened on 6 July 2021, when his wife found him assaulting an employee, Sinoxolo Mbiza, during an argument about keys and whether a house on the property where Mbiza lived had been locked. Even after his wife tried to intervene, the man continued punching the employee until the employee managed to get away.
When his wife tried to record the assault on her cellphone, the man turned on her, grabbed her and head-butted her so hard that the back of her head hit a windowsill.
Police find unlicensed firearm in bedroom safe
The firearm charge came from a family decision to sell a gun belonging to a deceased relative, Jonase. At the end of June 2021, a family representative, Mafuya, gave the Vektor Z88 9mm Parabellum semi-automatic pistol to the man for valuation.
On 29 July 2021, police officers with a search warrant found the firearm inside a locked safe in his bedroom. The keys were hanging on a door in the bedroom. Before the safe was opened, the man told police the firearm belonged to his late relative and that he planned to buy it. He explained he kept it in the safe while waiting for a valuation.
However, he was not licensed to possess the firearm. He had previously held a firearm licence but had to surrender his licensed firearm after a domestic violence protection order related to his abuse of his wife.
Regional Court imposes five-year sentence
The Regional Court convicted him of unlawful possession of a firearm and two counts of common assault. He was acquitted of breaching a protection order and another assault charge.
He was sentenced to five years in prison for unlawful firearm possession and 12 months for each assault conviction. The assault sentences were ordered to run at the same time as the five-year sentence, so he effectively faces five years in prison. He was also declared unfit to possess a firearm under the Firearms Control Act.
When deciding the sentence, the Regional Court considered his personal circumstances. He was 59 years old, married to the complainant, held a Senior Teacher’s Diploma as well as BA and BEd degrees, and worked for the Department of Education as an educational specialist. He also had diabetes.
A probation officer suggested correctional supervision instead of direct imprisonment. But the Regional Court rejected this, saying a non-custodial sentence would be too lenient given the seriousness of the offences. The court also noted he showed no remorse.
Appeal focuses on personal circumstances
After his application for leave to appeal was refused by the Regional Court, the man petitioned the High Court in Mthatha. That application was also dismissed. He then went to the Supreme Court of Appeal, which granted him special leave to appeal against the High Court’s refusal to grant leave to appeal his sentence.
His lawyer argued the five-year sentence was grossly disproportionate and shocking. He said the man’s age, job, educational background and chronic diabetes justified a non-custodial sentence.
The State opposed the appeal, arguing that the seriousness of the offences, especially gender-based violence against his wife, justified imprisonment and that courts have a duty to protect victims of domestic abuse.
The Supreme Court of Appeal explained it was not hearing a direct appeal against the Regional Court’s sentence. Its job was to decide if the High Court was wrong to refuse leave to appeal.
The judges also noted the man had already served the two 12-month sentences for assault. An appeal against those sentences would serve no practical purpose. The only sentence still in dispute was the five years for unlawful firearm possession.
Diabetes did not justify a non-custodial sentence
The court found the Regional Court had properly considered the man’s personal circumstances, the seriousness of the offence and the interests of society when deciding on the sentence.
On his diabetes, the judges said a chronic condition does not automatically exempt someone from imprisonment, since diabetes is a manageable disease. For the condition to be a mitigating factor, there must be evidence that the prison system is completely unable to manage it or that imprisonment would be disproportionately harsh and life-threatening. The man provided no such evidence.
The court also rejected the argument that having the firearm for valuation lowered his culpability. It noted that he had denied possessing the firearm during the trial, despite telling police it was in his safe and that he intended to buy it.
The judges further found he knew his possession was unlawful. He had previously been required to surrender his licensed firearm because of a domestic violence protection order, yet kept the unlicensed firearm for almost a month without having it valued or surrendering it to police. The court said these were significant aggravating factors.
It added that the Regional Court had shown some mercy by ordering the assault sentences to run at the same time as the firearm sentence.
The Supreme Court of Appeal concluded the five-year sentence could not be described as shockingly disproportionate or inappropriate. It found that the man had not shown there were reasonable prospects of another court reaching a different conclusion or any other compelling reason to grant leave to appeal.
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