- A 49-year-old woman was sentenced to two years’ direct imprisonment for stabbing her partner during an argument after he spent money on alcohol at a tavern.
- The magistrate failed to investigate whether she was a primary caregiver and how imprisonment would affect her seven-year-old and 14-year-old children.
- The High Court set aside the sentence and sent the matter back to the magistrate to reconsider the punishment after investigating the children’s best interests.
The sentence of a woman who stabbed her domestic partner after he spent money on alcohol has been set aside after the High Court in Kimberley found that the magistrate failed to investigate how imprisonment would affect her minor children.
In a judgment delivered on 9 October 2026, Judge MC Mamosebo, with Judge LG Lever concurring, found that the magistrate had not properly investigated the woman’s caregiving responsibilities or the consequences of imprisonment for her children.
The woman had been sentenced to two years’ direct imprisonment after pleading guilty to assault with intent to do grievous bodily harm. She appealed the sentence with leave from the trial court and was granted bail pending the outcome.
The High Court relied on the Constitutional Court’s judgment in S v M (Centre for Child Law as Amicus Curiae), which requires sentencing courts to consider the best interests of children when imprisonment is contemplated for a primary caregiver.
The court made clear that this does not mean a parent must automatically be spared imprisonment. However, courts must have enough information to weigh the children’s interests against the seriousness of the offence, the interests of society and the offender’s personal circumstances.
The appeal succeeded, the sentence was set aside, and the matter was referred back to the magistrate for a fresh sentencing decision.
Partner spent money on beer and brandy
According to her guilty plea statement, the incident happened on 25 November 2025. The woman became angry because her partner had withheld money from her and spent it at a tavern buying beer and brandy, which he consumed with his friends.
She went to the tavern to ask him for money, but his friends told her he had none to give her. She returned home and cooked for the family.
Her partner later arrived home with his friends and reprimanded her for allowing their child to be at the tavern. She said she had not known the child was there because she had been cooking. The friends continued participating in the couple’s conversation, which angered her and contributed to the argument.
She stabbed her partner once with a knife out of frustration and later apologised for her actions. She was arrested a few days after the incident.
The magistrate imposed a two-year prison sentence. The woman challenged the sentence on appeal, leading the High Court to examine whether the sentencing process had properly considered her circumstances and the interests of her children.
Woman continued caring for younger children
The woman was 49 years old at the time of the appeal and had been in a relationship with her partner since 2009. They had four children together, aged 25, 18, 14 and seven. Although she had been ordered to leave the communal home following the couple’s separation, evidence showed that she continued playing an important role in caring for the younger children.
Her partner, who was also the complainant in the criminal case, testified that the children lived with him but went to their mother after school. They returned to the communal home when he came back from work. He confirmed that the woman continued doing their laundry and caring for them while he was at work, and that she returned from time to time to check on them.
The court also heard that the children had pleaded with their father that they needed their mother and did not want her to be imprisoned. He shared their sentiment and testified that she had apologised to him twice and that he had accepted her apology.
The woman worked as a casual domestic worker three days a week, earning R250 a day. She had started working in December 2025, had completed Grade 8 and was a first offender.
The High Court found that the evidence indicated she continued performing substantial day-to-day caregiving duties, particularly for the two younger children. At the very least, the circumstances required further investigation before a custodial sentence was imposed.
Magistrate failed to investigate children’s circumstances
Judge Mamosebo acknowledged that the stabbing was a serious offence committed in the context of a domestic relationship. However, the record did not show that the magistrate had properly investigated the impact of imprisonment on the children or whether ES was their primary caregiver.
“The issue is not whether a custodial sentence could competently be imposed. It plainly could,” the court stated. The problem was that the sentencing court did not have sufficient information to assess the children’s circumstances and the likely consequences of their mother’s imprisonment. The failure to consider this material factor amounted to a misdirection that justified the High Court’s intervention.
The court explained that the Constitutional Court’s judgment in S v M requires sentencing courts to establish whether an accused is a primary caregiver, investigate the likely impact of imprisonment on the children, consider whether adequate alternative care arrangements exist and weigh the children’s best interests against the other relevant sentencing factors.
The High Court stressed that the children’s interests do not automatically prevent imprisonment. They are an important constitutional consideration in the broader sentencing process, rather than a guarantee that a non-custodial sentence will be imposed.
Magistrate must reconsider sentence
The High Court found that it could not conduct the necessary investigation itself because the record did not contain sufficient information about the children’s circumstances and the likely effect of imprisonment on them.
It therefore referred the matter back to the magistrate to reconsider the sentence after taking all relevant factors into account, including an investigation into the woman’s caregiving role and the best interests of the minor children.
The court indicated that the magistrate could obtain a suitably informed pre-sentence report if necessary to establish the children’s circumstances and the likely consequences of imprisonment.
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