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S v Ishwarall and Another (CC 103/2015) [2018] ZAKZDHC 55

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S v Ishwarall and Another (CC 103/2015) [2018] ZAKZDHC 55

9th November 2018

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Click here to read the full judgment on Saflii

[1] As I did in the judgment, I refer to Ms Ishwarlall as ‘the accused’ and the now deceased Ms Basarich as ‘accused 2’.

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[2] The accused has been convicted on two counts of assault GBH, eight counts of child abuse in contravention of s 305(3) and (4) of the Children’s Act 38 of 2005 (‘the Children’s Act’), and one count of murder. The State did not prove any previous convictions against the accused and she is therefore a first offender for the purposes of the Criminal Law Amendment Act 105 of 1997 (‘the Criminal Law Amendment Act’).

[3] The prescribed minimum sentence in respect of the two counts of Assault GBH read with s 51 and part 3 of schedule 2 of the Criminal Law Amendment Act is 10 years’ imprisonment.

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[4] In respect of the eight counts of child abuse in contravention of s 305(3) and (4) of the Children’s Act, in terms of s 305(6), ‘[a] person convicted of an offence in terms of subsection. . .(3), (4). . .is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment’; and in terms of s 305(7) ‘[a] person convicted of an offence in terms of subsection. . .(3), (4). . .more than once is liable to a fine or imprisonment for a period not exceeding 20 years or to both a fine and such imprisonment’.

[5] Although the charge of murder was read with the provisions of the Criminal Law Amendment Act the court did not find that the accused acted in common purpose with accused 2. Therefore the minimum prescribed sentence on this count for a first offender is 15 years’ imprisonment.

[6] In the sentence proceedings the State called two witnesses. Brandon Pillay, the Ward Councillor for Havenside, where the accused and the complainants resided, described the area as a middle-income area. He considered the home of the accused adequately furnished with all essential appliances including a television and linen. Mr Pillay testified that the community had been shocked when the death of Jamie occurred and the abuse of the children was exposed and there was a widespread outpouring of grief. Public support funded the child’s funeral which her paternal grandfather attended. A Jamie Memorial Committee has been set up. Social development programmes have since been introduced into the community and schools in order to create awareness of abuse and prevent a recurrence of the abuse in the community. Mr Pillay conceded that inasmuch as members of the community demanded retribution against the accused, the complainants had not received the necessary support and assistance from the social worker, teachers, and the family members and other members of the community to whom the children had complained or were aware of the abuse.

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