'Shockingly inappropriate' - AfriForum on sentence for man who viciously assaulted estranged wife

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  • Jaco Swart was handed a R20 000 fine and a suspended prison sentence for the vicious assault of his estranged wife.
  • AfriForum's private prosecution unit, that held a watching brief for the victim, viewed the sentence as shockingly inappropriate.
  • This was after the National Prosecuting Authority didn't fight to have video evidence submitted during sentencing arguments. 

Jaco Swart, who was convicted of severely assaulting his estranged wife, was handed a "shockingly inappropriate" sentence because the State failed to submit the video footage of the beatings as evidence in aggravation of sentence, AfriForum said.

Swart was sentenced to a R20 000 fine and a three-year prison sentence suspended for five years in the Pretoria North Magistrate's Court on Tuesday.

This was after Swart pleaded guilty to two charges of assault with the intention to inflict grievous bodily harm against his estranged wife Nicoleen Swart, according to AfriForum's Private Prosecution Unit, which held a watching brief for the victim.

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AfriForum said Swart entered a guilty plea as he faced an unassailable case that included surveillance footage of his violent acts. CCTV footage captured Swart brutalising, pushing, punching and kicking Nicoleen at their business in 2018.

"Some of the vicious attacks took place in front of the couple's two children," AfriForum Private Prosecution Unit spokesperson Barry Bateman said.

Bateman said the sentence was "shockingly inappropriate".

Sentencing proceedings 

He said that during sentencing proceedings, the State prosecutor applied to have the surveillance footage admitted for the purposes of aggravation of sentence.

However, the court disallowed this after the defence questioned its authenticity.

"The defence raised the authenticity question - and the State rolled over and moved on," Bateman said. This was despite the fact that the video expert who was summonsed to testify was scheduled to be in court on Wednesday.

"The prosecutor merely had to ask for the matter to postpone for a day so their expert witness could testify to the authenticity."

Bateman said the State could have also called the victim to testify and reference the video, but instead, the prosecutor was content to argue from the bar about the seriousness of the case.

"AfriForum's Private Prosecution Unit had hoped more was done to ensure the footage was admitted to the record, to allow the magistrate to view first-hand Swart's violent conduct directed at his wife."

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The National Prosecuting Authority (NPA) responded that it did apply to have the footage made part of the record, but the application was dismissed. 

"Because the State did not rely on one piece of evidence to prove its case, it made an application to submit [the] J88 form (Medical Report) to prove that indeed the victim was assaulted. The J88 was accepted and the accused was sentenced based on the presented evidence," NPA spokesperson Lumka Mahanjana said.

No appetite to prosecute 

The private prosecution unit accused the NPA of having no real appetite to pursue the matter.

This, it said, was evidenced by the fact that the matter had previously been struck from the roll, which was why Nicoleen reached out to the unit for help.

"Advocate Gerrie Nel and his team, in terms of a watching brief from [Nicoleen] Swart, made representations to the DPP and indicated that they were prepared to institute private prosecution. Thereafter, the DPP instructed in May 2021 that the accused must be summarily prosecuted," Bateman said.

Nel said: 

We are confronted by the lip service paid to the fight against gender-based violence by all in the criminal justice system, as well as a lack of commitment and competence to take proper care for the victims of gender-based violence.

"However, we want to applaud Nicoleen Swart, who decided not to remain a victim, but to speak out."

Following the sentencing, Nicoleen said she was disappointed with the sentence imposed, but was pleased about the guilty verdict.

"It sends a strong message to women that they must speak out against gender-based violence, and there is always an ear willing to listen," Nicoleen said.

Mahanjana said that on the day the trial was supposed to have started, the matter was struck from the roll by the magistrate because the court roll was so congested that the magistrate was unwilling to sit the matter down for later or postpone it. 

"Immediately after the matter was struck of the roll, the senior public prosecutor, wrote to the DPP to ask for reinstatement of the matter. The DPP granted the reinstatement and asked for the matter to be tried in the regional court for expedition in of the matter in order for the victim to get justice.

"Therefore, by the time the AfriForum followed up on the case the process was already ongoing," Mahanjana added. 

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