Appeal upheld in toddler's murder case

By Botho Molosankwe

The Joburg woman who battered her adopted child to death might receive a lighter sentence after winning some aspects of her appeal.

Zaibunisha Herman, with her husband Donovan at her side, emerged from the Johannesburg High Court a happy woman after Judge Nigel Willis upheld her appeal and set aside two counts of assault with the intent to do grievous bodily harm before stating that she must be sent to a magistrate's court for a resentencing.

He said there was no evidence that Herman had caused the fractures on Tammy's ribs - injuries that occurred over a period of time.

But, he said, Herman was still guilty of culpable homicide and one count of assault with the intent to do grievous bodily harm.

Judge Willis said it had been proved that Herman inflicted the injuries which caused Tammy's death.

Herman was on maternity leave and was the baby's primary caregiver.

Tammy died in January, 2006 after her body went into shock because of internal bleeding caused by a ruptured liver. She also had 12 broken ribs, extensive bruising to her body, as well as brain damage.

After months of investigations, Herman handed herself to the police, but was released on R10 000 bail.

During the trial, it was heard that Herman's husband used to cheat on her and also made two women, including his ex-wife, pregnant.

Herman and Donovan had tried for a baby, but she was unsuccessful and became frustrated, depressed and blamed her husband's infidelity for her inability to conceive.

Their marital problems got so bad that in 1999 Donovan divorced Herman, but she appointed an attorney who appealed against the divorce, and two days after the decree, a judge reversed it.

Even though their problems continued, they talked about adoption the following year in the hope that a child would save their marriage. Tammy became the Hermans' daughter on July 7, 2004.

She sustained an elbow injury three months later, before finally dying in January 2006.

Herman was charged with murder, but magistrate Lucas van der Schyff convicted her of culpable homicide and three counts of assault with the intent to do grievous bodily harm, and gave her five years for each count.

Herman also received 10 years for culpable homicide, but the magistrate said the five-year sentences would run concurrently and 10 years for culpable homicide would run separately - giving her an effective 15 years in jail.

Judge Willis said Herman had the right to appeal, but only her conviction, not the sentence.

But after setting two convictions aside on Thursday, the matter should go back to the Johannesburg Magistrate's Court for a fresh sentence in light of the outcome of the appeal.

"The leave to appeal the sentence was not granted.

"Furthermore, the learned magistrate acted carefully in the matter and one cannot criticise him.

"As the sentences on counts two and three were ordered to run concurrently with the sentence on count one, one is tempted to conclude that this court's interference with the convictions on counts two and three should make no difference to the result on sentence.

"In view of the fact that one is unable to fault the magistrate's reasoning on sentence, it would seem unfair to him for this court to interfere with it and impose another sentence," he said.