No jail time for a granny who assaulted a man with a stick following a dispute over a key and access to a house.
This was the verdict of the Gauteng High Court, Johannesburg, who overturned the lower court’s verdict of six-month direct imprisonment meted out to granny Josephine Ntshingila, after the 72-year-old hit her male neighbour with a wooden stick.
She was subsequently convicted of assault in the lower court. The magistrate decided that six-month direct jail time was the only suitable sentence for the gogo.
But on appeal, Acting Judge T Bokabo overturned the jail sentence and replaced it with a fine of R1 500 or three years imprisonment, which was in total suspended for five years.
The judge said while the granny’s age did not excuse her from being convicted and punished, the lower court should have taken her age into consideration before sending her straight to jail.
Ntshingila appealed her sentence on various grounds, including that it was shockingly harsh. She also argued that given her advanced age, she did not need to sit in jail to rehabilitate.
She was convicted of common assault after she assaulted Aaron Motaung (the complainant) by striking him with a wooden stick.
A doctor’s report showed that he had suffered diminutive but nonetheless apparent contusions on the left arm and an injury on the left leg.
The essence of the dispute between the appellant and the complainant was that they are located within the same premises, despite the appellant living in the main residence while the complainant resides in a rear room within the yard.
The main residence was formerly owned by the complainant's deceased parents, and a dispute over who should live in the house has resulted in their tumultuous relationship.
The gogo testified that on the day of the incident the complainant approached as she sat in the yard. He requested the house keys, to which she refused.
An argument subsequently arose between the two and the elderly woman assaulted him.
During the dispute, the woman’s son-in-law intervened by instructing the appellant to go into the house. According to his evidence, she went into the house while the complainant remained outside, directing insults at her. He denied that his mother-in-law ever raised her hands towards the complainant.
The lower court, however, found the appellant guilty and subsequently imposed a six-month prison sentence.
The mitigating factors presented by the appellant included that she was 72 years old when the offence was committed and that she is a pensioner. According to her, she has a condition with her legs, which include an infection on the right leg.
The grandmother, however, took responsibility for her actions.
The aggravating factors advanced by the state were that the complainant was unarmed during the incident. The court was also told that after her arrest and a week before the complainant was due to testify against her, she had once again lifted her hand towards him.
According to the prosecution, the gogo showed no remorse for her actions and she maintained that she did not deserve to go to jail.
Judge Bokako, on appeal, said it's clear that the lower court did not take her age into consideration during sentencing.
“It is imperative to acknowledge that the appellant's age does not absolve her of criminal responsibility. Nevertheless, it may be considered a mitigating factor during the sentencing phase,” the judge said.
Judge Bokako noted that imprisonment can be especially harsh for elderly individuals with medical conditions, complicating their ability to manage.
She currently resides with her daughter, who assists in managing her health challenges. Given the expected progression of her health issues, she will require additional support that correctional services may not be equipped to provide, the judge said.
The magistrate who earlier sentenced the appellant noted that the complainant was vulnerable and unarmed, and that he presented no imminent threat to the appellant.
The lower court also emphasised the importance of recognising that merely one week before the trial, the complainant was yet again assaulted by the appellant. This incident was introduced as evidence demonstrating that the appellant showed no remorse for her previous conduct.
Judge Bokako, however, noted that as stated in the Older Persons’ Act, females are classified as older persons at the age of 60 years, while males are acknowledged as such at 65 years.
“Upon thorough consideration, I discern numerous mitigating factors pertaining to the appellant that may result in reduction of her sentence…The appellant is an elderly woman experiencing significant health issues. From a stringent legal standpoint, this represents a considerable and compelling circumstance,” the judge said.
The court added that the trial court’s failure to consider and attach sufficient weight to the appellant's personal circumstances culminated in a disturbingly inappropriate sentence.
“Common assault is characterised as a minor offence…The primary objective of imprisonment is to segregate the offender from society to enhance public safety. It allows the judicial system to administer an appropriate sentence to individuals whose conduct warrants severe punishment.”
But the judge concluded that jail was not the place for the granny.
Pretoria News
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