KZN magistrate Michael Masinga, convicted of hitting his wife with the blunt side of an axe, will appeal the ruling.
|||Suspended Umlazi magistrate Michael Masinga, convicted of attempting to murder his estranged wife by hitting her on the head with the blunt side of an axe, was sentenced to 10 years imprisonment on Monday.
But it was a sentence quickly labelled “controversial” by defence advocate Jimmy Howse, who successfully applied for leave to appeal against both the conviction and the sentence.
Durban regional court magistrate Anand Maharaj extended Masinga’s bail and gave him three months to lodge his appeal in the high court in Pietermaritzburg.
His estranged wife, Nompumelelo Masinga – who testified earlier in the trial that she did not want him to go to jail because she was afraid that he would die at the hands of prisoners he had sentenced – had little to say after Monday’s proceedings.
“He is still in denial,” she said about his persistent claims of innocence and that he had been acting in self-defence.
Regarding the sentence, she said: “It is not for me to say where he must go and for how long.”
Masinga was convicted last year of attacking Nompumelelo at their Woodlands home in March 2009.
Maharaj ruled that Masinga, now 53, hit his wife on the head with an axe, kicked her, called her a dog and shouted: “Aren’t you dead yet?”
At the time he was living in an outbuilding on the property. On the evening of the incident, he had brought home a woman – now his fiancée – and his wife became enraged and threw potatoes and onions at the window. The magistrate emerged with his axe and attacked her, leaving her with three deep wounds in the head. She spent six days in hospital and, she testified, still suffered unbearable headaches.
Passing sentence, magistrate Maharaj referred to several international and local charters on the protection of women.
He said the attack on Nompumelelo had not been the first and she had previously obtained a protection order against Masinga who clearly had a “violent disposition”.
“Spousal abuse is on the increase. Women are the targets and many of these instances end tragically with people being killed,” he said, referring to three other domestic violence cases he had dealt with in which sentences of between 10 and 20 years had been imposed.
He said Masinga – a magistrate at the time (he has since been suspended from work without pay) – “should have known better” and this was an aggravating factor.
He said Nompumelelo’s plea that he not be sent to jail was understandable considering they had been married 27 years at the time of the incident and had three children together. However, he said, it was also “hypocritical” considering she testified she had moved to Gauteng for her own safety and it disregarded the plight of other abused women.
“She chose to charge him. She obtained a protection order against him. What did she think? That if he was convicted he would be let off with a slap on the wrist?”
Had Masinga pleaded guilty and shown remorse, then a sentence of correctional supervision or a suspended sentence might have been appropriate but given the seriousness of the crime and his continued denials, direct imprisonment was the only suitable punishment, the magistrate said.
Regarding evidence that Masinga was the sole caregiver of a “special needs child”, Maharaj said there was little evidence before him about this; however, as part of the sentence, he ordered that the national commissioner of correctional services monitor the child through a social worker.
In arguing for leave to appeal, Howse said that Nompumelelo had been a poor witness.
He said Maharaj had ignored the fact that she had instigated the fight and had unfairly rejected Masinga’s version that he had acted in self-defence.
Regarding sentence, he said Masinga was not a threat to anyone “so why send him to jail?” - The Mercury