The appellant, Ms Dawida Solomons, aged 47, was convicted of murdering Mr Barnwell Sebenja, her partner of 15 years and the father of two of her children. She was a cleaner and part-time assistant librarian, serving as the sole breadwinner and primary caregiver for her children. The deceased was 34 years old. The relationship was characterized by mutual alcohol consumption, and the appellant alleged domestic violence and abuse by the deceased, including physical assaults and emotional abuse. The deceased had another partner and would alternate living between the two women. On 13 February 2016, after drinking together, the deceased demanded money for more alcohol and swore at the appellant. Later that day, an argument ensued at the appellant's home when the deceased took food without asking and threatened to leave her for the other woman. The appellant stabbed the deceased once in the chest with a knife, inflicting a fatal wound to his heart. The appellant claimed self-defence, but medical evidence showed she sustained no physical injuries on the day of the incident. She had obtained a domestic violence interdict against the deceased in February 2015 based on emotional abuse. The appellant testified about three previous facial injuries caused by the deceased but had not laid criminal charges. The deceased's family disputed the abuse allegations.
The appeal against the sentence was dismissed. The sentence of 8 years' imprisonment, with 3 years conditionally suspended for 5 years (effective 5 years' imprisonment), imposed by the Northern Cape Division of the High Court, Kimberley, was confirmed.
An appellate court may only interfere with the sentencing discretion of a lower court if satisfied that the discretion was not properly exercised or the sentence was shockingly inappropriate or disproportionate. When domestic violence is relied upon to ameliorate a sentence, there must be evidence before the court to establish its existence, extent, nature, duration and impact, though such evidence need not be limited to proof of physical harm given the broad definition of domestic violence in the Domestic Violence Act. When sentencing a primary caregiver, the court must pay proper attention to the interests and welfare of dependent children and take measures to minimize damage, but this does not automatically impose an obligation to avoid custodial sentences - the court must weigh competing needs of children against the need to punish misconduct and the seriousness of the offense. The existence of a protection order can properly be taken into account as evidence of domestic violence even where other corroborating evidence is limited.
The court commented on the approach implicit in the State's submissions that there must be evidence of physical harm to establish domestic violence, noting this was contrary to the Domestic Violence Act 116 of 1998 which provides a wide definition of domestic abuse including emotional, verbal, psychological and economic abuse, though the court noted nothing turned on this for purposes of the appeal. The court observed that the pre-sentencing report depicted a history of intergenerational cycles of domestic violence in the appellant's family of origin, a significant contributor to the pervasive scourge, but noted that the impact of this history and factors that propelled the appellant to stay with the deceased were never properly tested. The court noted critically that the legal representative did little to counter the pejorative characterization of the appellant's conduct as that of 'a woman scorned', resulting in the evidence on sentence being narrowly focused on the single fatal incident.
This case is significant in South African jurisprudence for its consideration of sentencing in the context of inter-partner violence and domestic violence. It illustrates the application of the principles in S v Engelbrecht regarding the evidentiary burden required when domestic violence is relied upon to ameliorate a sentence. The judgment also demonstrates the application of MS v S principles regarding sentencing of primary caregivers, confirming that while courts must pay proper attention to the best interests of children, this does not automatically preclude custodial sentences. The case highlights the broad definition of domestic violence under the Domestic Violence Act 116 of 1998, which includes emotional and psychological abuse, not just physical harm. It also addresses the limited grounds upon which appellate courts may interfere with sentencing discretion of lower courts. The case provides guidance on balancing multiple sentencing considerations including the seriousness of the offense, personal circumstances of the offender, domestic violence context, and the interests of dependent children.