THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1292/2021
In the matter between:

DAWIDA SOLOMONS

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:  Solomons v The State (Case no 1292/21) [2022] ZASCA 124
(26 September 2022)

Coram:
PETSE DP, MOTHLE and HUGHES JJA, and CHETTY and
SIWENDU AJJA
Heard:

17 August 2022
Delivered:
26 September 2022

Summary: Criminal Law and Procedure – murder – inter-partner violence –
domestic violence – sentence – 8 years’ imprisonment, 3 years of which is
suspended, substituted by high court – consideration of a non-custodial sentence
–  whether interference with such sentence warranted – appeal dismissed.

________________________________________________________________

ORDER
________________________________________________________________
On appeal from: Northern Cape Division of the High Court, Kimberley
(Phatshoane ADJP and Nxumalo AJ sitting as court of appeal):
The appeal against the sentence is dismissed.
________________________________________________________________

JUDGMENT
________________________________________________________________

Siwendu AJA (Petse DP and Mothle and Hughes JJA and Chetty AJA
concurring);

[1] This appeal is against the substituted sentence of the Northern Cape
Division of the High Court, Kimberley (the high court) of the sentence imposed
by the Northern Cape Regional Court sitting in Carnarvon. It involves an
appropriate sentence in the context of reciprocal intimate partner violence and
domestic violence. 1

[2] The regional court convicted Ms Dawida Solomons (the appellant) for the
murder of Mr Barnwell Sebenja (the deceased), her partner of 15 years. The
deceased was 34 years old and the father of two of the appellant’s children.

[3] The conviction carried a prescribed minimum sentence of 15 years as the
crime falls within Part 2 of Schedule 2 of the Criminal Law Amendment Act 105

1 The World Health Organization’s definition of the term ‘domestic violence’ is used in many countries to refer
to partner violence but the term can also encompass child or elder abuse, or abuse by any member of a household.
On the other hand, ‘Intimate partner violence’ includes physical, sexual, and emotional abuse and controlling
behaviours by an intimate partner (see the information sheet by the World Health Organization and Pan American
Health Organization ‘Understanding and addressing violence against women: intimate partner violence’ 2012
page 1).

of 1997. However, on 8 November 2018, the trial court sentenced the appellant
to 8 years’ imprisonment. Accordingly, it found that there were substantial and
compelling circumstances, based on her personal circumstances, justifying a
lesser sentence.

[4] The appellant successfully petitioned the high court for leave to appeal
against the conviction and sentence. The high court confirmed her conviction, but
set aside the sentence. It imposed a sentence of 8 years’ imprisonment, 3 years of
which were conditionally suspended for 5 years, rendering an effective 5-year
imprisonment.

[5] The high court found that the evidence of domestic violence and abuse at
the hands of the deceased, as alleged by the appellant, was scant. She had not
adduced any medical evidence of hospital treatments to support the allegations of
assault by the deceased. It found that the domestic violence interdict she had
obtained did not mention the physical abuse. It criticised the appellant for not
laying charges against the deceased.

[6] Throughout the proceedings, the State placed emphasis on the events of the
day of the incident, contending that the appellant’s conduct was consistent with
the conduct of ‘a woman scorned’. The high court found the assessment a logical
one. Despite the identified shortcomings, the high court concluded there was
some evidence of abuse in the protection order obtained by the appellant, which
could not be ignored. It ameliorated the sentence in light of the perpetual violence
which had marred the relationship with the deceased.

[7] Dissatisfied with that outcome, the appellant petitioned this Court for and
was granted special leave to appeal against the sentence. The appeal was disposed

of in terms of s 19(a) of the Superior Court Act 10 of 2013 without the hearing
of oral evidence.

[8] The primary grievance is that the high court misdirected itself by
underemphasising the domestic violence and abuse she suffered at the hands of
the deceased. The appellant contends that this Court must take account of the
persistent threats by the deceased to leave her for another woman, whenever she
refused to comply with his demands as a facet of emotional abuse. The high court
ignored this.

[9] Her second ground for appeal is that the high court minimised her personal
circumstances when it imposed a custodial sentence. She places an emphasis on
her position as a primary caregiver of the minor children as well as her role as the
sole breadwinner. She contends that imprisonment will have a devastating effect
on them.

[10] In essence, the appellant seeks an order setting aside the custodial sentence
imposed and for the matter to be remitted to the trial court for consideration of a
sentence of correctional supervision in terms of s 276(1)(h) of the Criminal
Procedure Act 51 of 1977,2 alternatively for this Court to impose a suitable
sentence of correctional supervision with conditions.

Background
[11] The facts leading to the appellant’s conviction are not contested. Despite a
difficult upbringing, the appellant established a home at 12 Bonteheuwel
Carnarvon, where she lived with her children. Her home is a typical municipal

2 Section 276(1)(h) provides that ‘[s]ubject to the provisions of this Act and any other law and of the common
law’ various sentences may be passed upon a person convicted of an offence, including a sentence for correctional
supervision.

semi-detached house comprising a two-roomed house. From the trial exhibits, it
is no more than 40 square meters.

[12] The appellant was 47 years old at the time of the offence. She had stable
employment working as a cleaner and a part-time assistant librarian at Carnarvon
Kareeberg for several years. She is the sole primary caregiver and breadwinner
for her family. Her children with the deceased were 15 and 11 years respectively
at that time.

[13] Even though the deceased was employed, he frequently asked the appellant
for money to buy alcohol. The appellant often yielded to his demands. The trial
court was informed that in addition to alcohol, the deceased often smoked dagga.
He had a relationship with another woman, a public fact known by the appellant.

[14] The trial evidence was that the deceased would stay with the appellant for
a few months, then leave to stay with his other partner for another few months.
The night before the incident, the deceased and the appellant drank together. The
deceased stayed overnight at the appellant’s home.

[15] On 13 February 2016, the deceased left at about 5 am to go to the shebeen,
leaving the appellant behind. At around 10 am, the deceased and the appellant
met at Nevos Tavern, where they drank more beers. The appellant testified that
the deceased swore at her, demanding money to buy more alcohol. The appellant
relented once more and gave him R50.

[16] After a while, she left Nevos Tavern with a friend, Belsaar, to fetch food
parcels from Belsaar’s father. Thereafter, Belsaar provided her a lift to Spar,
where she brought groceries. Despite evidence that the deceased had sworn at
her, the appellant entrusted her house key to the deceased.

[17] The sole witness for the State, Mr Meckock (also known as Oom Klass), a
mutual friend of the deceased and the appellant, testified that he had been drinking
with the deceased that morning. He was not present when the deceased swore at
the appellant. However, that afternoon, he met with the appellant and the
deceased at Annie’s house, the semi-detached house next to the appellant’s house.

[18] He confirmed that the appellant returned from town with two bags of
groceries from Spar and a crate with cold meats but without her house keys. The
appellant had sent her neighbour’s child, Jasmine, to fetch her house key from the
deceased. They waited for the key at Annie’s house. The deceased arrived at
Annie’s house with Jasmine.

[19] The trial evidence is that the appellant had asked Mr Meckock, but not the
deceased, to assist in carrying her groceries to her house next door, which he did.
At this time, the deceased took a polony roll from the crate of cold meats without
asking the appellant. This upset the appellant. An argument ensued and migrated
to the appellant’s house. Given the proximity of the houses and permeable sound,
Mr Meckock overheard the exchange. The appellant used harsh and foul
language.

[20] The deceased, who was described as a softly spoken person, demanded his
backpack, clothes and work boots from the appellant. He threatened to leave the
appellant for the other woman. The appellant first asked the deceased to lie down.
When he did not, she told the deceased to take his clothes and leave. Mr Meckock
disputed that the deceased swore back or shouted at the appellant.

[21] Mr Meckock testified that he returned to Annie’s house to wait for the
deceased but later came out to check on the deceased. He found the deceased
standing at the doorway of the appellant’s house, his back towards Mr Meckock,

facing the appellant, who was inside the kitchen. The deceased had his boots and
backpack over his shoulder.

[22] Mr Meckock saw the appellant come from the kitchen towards the
deceased and stab him once with a knife. The deceased had staggered backward
towards Mr Meckock, who caught him from behind. The post-mortem report
shows that the appellant inflicted a 24 mm cut in the anterior thorax just left of
the midline over T5 with a 10 mm exit wound on the right ventricle posterior
and pericardium of the deceased’s heart.

[23] As already alluded to above, the appellant testified about previous
incidents of violence at the hands of the deceased. She showed the trial court three
facial injuries to her cheek, chin, and forehead caused by stab wounds which she
claimed were inflicted by the deceased. She testified that she was hospitalised on
each of these occasions. Her evidence was that she did not lay charges against the
deceased because she was scared of him. It is, however, common cause that in
February 2015, the appellant obtained a domestic violence interdict against the
deceased premised on emotional abuse.

[24] It bears mentioning that even though they did not testify at the trial, a letter
from the family of the deceased was admitted into evidence. His family disputed
that the deceased assaulted the appellant. They claim that the appellant and her
elder son, who was not born out of the relationship with the deceased, perpetually
‘hurt the deceased in so many different ways, it is impossible to describe.’ As a
result, the deceased relocated back to his family home.

[25] The appellant’s version was that she acted in self-defence on the day
because the deceased had assaulted her first. Dr van Zyl had examined her. The

high court confirmed the trial court’s view that the absence of physical injuries
sustained on her body that day militated against self-defence.

The appeal on sentence
[26] The issue in this appeal is whether the high court misdirected itself in the
exercise of its discretion to warrant an interference with the sentence as
contended. The complaint centres on the court’s approach to the evidence of
domestic violence and abuse at the hands of the deceased. A second issue pertains
to the imposition of a custodial sentence and in particular whether appropriate
considerations were taken into account given that the appellant is a primary
caregiver.

[27] The appellant relies on the pre-sentencing report prepared at the trial court.
The report points to an intergenerational cycle of abuse and violence in her family
of origin. It reveals that the appellant grew up in an abusive environment. Her
father abused her mother, which fractured her family of origin. Her brother, left
home at a young age to live with their grandparents because of the abuse. Her
parents finally divorced.

[28] The main contention by the State is that the appellant failed to meet the
threshold in S v Engelbrecht.3 The State contends that the finding by the trial court
was not that the appellant was ‘a victim’ in the relationship but that the
relationship was marred by violence. The argument is that the domestic violence
interdict obtained by the appellant in February 2015 did not mention ‘physical
assaults’ inflicted by the deceased. In addition, the appellant had not reported
these incidents to the probation officer. The State argues further that the trial court

3 S v Engelbrecht 2005 (2) SACR 163 (W) para 47 where the court held that where a party relies on domestic
violence to ameliorate a sentence, it must discharge an extra ordinary evidentiary burden of proving the existence,
the extent, the nature, the duration and the impact of the domestic violence.

took judicial notice that both men and women could be perpetrators of violence.
This may be so.

[29] Something must be said about the submission by the State. Implicit in it is
that there must have been evidence that the appellant suffered physical harm. That
approach is contrary to the Domestic Violence Act 116 of 1998, which provides
a wide definition of domestic abuse. 4 However, for present purposes nothing
turns on this.

[30] The pre-sentencing report depicts a history of the intergenerational cycle
of domestic violence in the appellant’s family of origin, a significant contributor
to the pervasive scourge. The impact of this history, and factors that propelled the
appellant to stay with the deceased, who she claims humiliated her, were never
tested by the trial court or on appeal. Moreover, her legal representative did little
to counter the impression that her conduct was synonymous with that of ‘a woman
scorned’ (a pejorative term). As a result, the evidence on sentence was in the main
narrowed to the fateful single incident of February 2016.

[31] It is trite, based on a long line of decided cases,5 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.

4 Section 1 of the Domestic Violence Act provides that the term ‘domestic violence’ means—
‘(a) physical abuse;
. . .
(c) emotional, verbal and psychological abuse;
(d) economic abuse;
. . .
or
(j) any other controlling or abusive behaviour towards a complainant’.
5  See S v Rabie 1975 (4) SA 855(A) at 865B. See also S v Malgas 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469;
[2001] 3 All SA 220 paras 12-13 and S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC);
2007 (12) BCLR 1312 (CC); 2007 (2) SACR 539 (CC) para 113.

[32] 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. The threshold
in Engelbrecht can only be met if evidence is adduced before the court. Despite
the submissions by the State, and the paucity of evidence as to the extent and
impact of the history of domestic violence, the high court took cognisance of the
protection order as an indication of the existence thereof, correctly, in my view.
It ameliorated the severity of the sentence within the evidence available before it.

[33] The last complaint pertains to the appropriateness of a non-custodial
sentence, considering the appellant’s role as a primary caregiver. In this instance,
the trial court weighed up and took account of the imperatives required when
sentencing a primary caregiver propounded in MS v S (Centre for Child Law as
amicus curiae).6

[34]  The issue on appeal essentially pivots on the adequacy of the care found
for the children. At the time, placement of the children was found in the care of
Ms Agnes Sebenya, a relative of the deceased. The appellant was unhappy with
this, contending it was not in the best interest for the children without
substantiating the basis for her dissatisfaction.

[35] 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,
respectively. One child has reached the age of majority and the younger child is
16 years.

6 MS v S (Centre for Child Law as amicus curiae) 2011 (2) SACR 88; [2011] ZACC 7; 2011 (7) BCLR 740 (CC)
para 45; the court held that the fact that the children will be adversely affected by the incarceration of their mother
who is a primary care giver does not on its own impose an obligation on the sentencing court to protect the children
at all costs from the consequences of an incarceration. All that is required is that the court must pay proper attention
to these issues and take measures to minimise damage when weighing up the competing needs of the children, on
the one hand, and the need to punish the appellant for her misconduct, on the other.

[36] I am satisfied that the high court 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.

[37] In the result, the following order is made:
The appeal against the sentence is dismissed.

_________________________
NTY SIWENDU
ACTING JUDGE OF APPEAL

Appearances:

For appellant:
IJ Nel
Instructed by:
Mario Williams Attorneys, Kimberley

Symington & De Kok Inc, Bloemfontein

For respondent:
AH van Heerden
Instructed by:
The Director of Public Prosecutions, Kimberley
The Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
26 September 2022
Status:
Immediate

The following Summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal.

Solomons v The State (Case no 1292/21) [2022] ZASCA 124 (26 September
2022)
The appellant successfully petitioned this Court to appeal against the substituted
sentence imposed by the Northern Cape Division of the High Court, Kimberley,
following the conviction and sentence for the murder of her long term partner and
father of her two children by the Regional Court sitting in Carnarvon. The
deceased was 34 years old at the time of his death and the appellant 47 years old.
The conviction carried a prescribed minimum sentence of 15 years as the crime
falls within Part 2 of Schedule 2 of the Criminal Law Amendment Act 105 of
1997. However, the regional court sentenced her to 8 years’ imprisonment after
it found there were substantial and compelling circumstances based on her
personal circumstances. On appeal, the high court confirmed the conviction but
substituted the sentence to 8 years’ imprisonment, 3 years of which were
conditionally suspended for 5 years, rendering an effective 5-year imprisonment.

The appellant obtained special leave to appeal against the sentence by the high
court to this Court, and the appeal was disposed of without hearing oral
submissions in terms of section 19(a) of the Superior Court Act 10 of 2013.
Despite finding that the appellant had failed to adduce medical evidence of
hospital treatments to support the allegations of assaults by the deceased, and the
criticism levelled at the appellant for not laying charges against the deceased, the
high court accepted there had been domestic violence based on a domestic
violence interdict obtained by the appellant the year before the incident which it
could not ignore. It ameliorated the severity of the sentence in the light of
reciprocal inter partner violence.
The appellant’s first ground for appeal to this Court was that the high court
misdirected itself by underemphasising the domestic violence and abuse she
suffered at the hands of the deceased. She relied on persistent threats by the
deceased to leave her for another woman, whenever she refused to comply with
his demands as a facet of emotional abuse. She also relied on a report prepared
by the probation officer depicting a history of intergenerational violence in her
family of origin. Her second ground for appeal concerned the appropriateness of
a non- custodial sentence considering her role as a primary caregiver. She sought
an imposition of a non-custodial sentence.
On appeal, the Court observed that the State placed much emphasis placed on the
events of the day of the incident. The appellant’s attorneys did not counter the
view that her conduct was consistent with that of a “woman scorned.” The
appellant did not place any evidence of the impact of the history of
intergenerational violence in her family of origin on her conduct. Furthermore,
she did not lead any evidence on factors which caused her to remain in a
relationship with the deceased in conditions where she claims he humiliated her.
She did not lead evidence in mitigation of her sentence. Despite this, the high
court had ameliorated the severity of the sentence in the light of reciprocal inter-

partner violence. The appeal Court found there had been no misdirection by the
high court which would warrant an interference with the sentence.
In so far as the imposition of a non-custodial sentence based on her role as a
primary care giver, the appeal Court held that the trial court weighed all the
factors required when it imposed a custodial sentence. Furthermore, the tissue
was overtaken by events. The appellant had been on bail from the time of the
imposition of the sentence in 2018. Her first child has attained the age of majority
and the younger child was 16 years old. It dismissed the appeal.