Cape Town - A social worker who interviewed convicted killer Thandi Maqubela made grave omissions in her pre-sentencing report, the Western Cape High Court heard on Monday.
Prosecutor Bonnie Currie-Gamwo tore into Arina Smit's 50-page report during cross-examination, getting her to concede omissions in a few areas.
Smit was called as a defence witness to testify in mitigation of sentence last week.
The first omission was that Smit had compiled her report based on Maqubela's conviction of killing her acting judge husband Patrick, not on the remaining two convictions of fraud and forgery.
In November 2013, the same court found Maqubela guilty of killing her husband in June 2009, despite not having conclusive medical evidence pinpointing a cause of death.
She was found guilty of forging her husband's will and committing fraud by causing potential prejudice to his estate.
Smit said the defence did not ask her to assess sentences for the remaining charges.
The State asked if this was not a grave omission, considering she was aware of the charges and the related prescribed minimum sentences.
“It is an omission on my part,” Smit conceded.
Currie-Gamwo said Smit's recommendations for periodic imprisonment or a suspended sentence could thus only apply to the one charge.
Maqubela's lawyer Thomas Tyler objected to the line of questioning and said a prescribed minimum sentence for fraud was never mentioned in the indictment. He said Maqubela should have been informed so her defence could prepare.
Judge John Murphy said he remembered that the issue of a minimum sentence was canvassed, but that it was only after evidence had been heard that the amount of money at stake was made known.
He dismissed the objection but said Tyler could argue this point in final arguments.
Currie-Gamwo got Smit to concede that she had not referred to the facts of the case.
“You did not focus on the actual charges, the actual convictions and the pattern that they revealed,” she put to Smit.
Smit said she had thought it important to look at Maqubela's long-term, overall behaviour, but that she could have focused more on the court's judgment.
“That is an omission on your part and a grave omission, to be quite frank,” Currie-Gamwo said.
Smit said she stood by her recommendation that a non-custodial sentence for Maqubela would benefit society.
The State highlighted other omissions, namely, Smit's failure to link Maqubela's risk to society with the crimes she committed, and interviewing people who were likely to favour Maqubela.
Smit said she had tried to contact as many people as possible, but not everyone had answered their phones.
Currie-Gamwo said the report was thus skewed in Maqubela's favour.
“Your recommendation is not as objective as it could have been, had you looked at all the facts that were at your disposal, including the content of the judgment and asking... the family how they were impacted,” she said.
Smit conceded that was correct.
Sapa