Nawaal Deane Peter Gaul is 25 years old and brain damaged. He communicates by moving his eyebrows. He breathes through a pipe connected from his throat and is intravenously fed by a tube from his stomach.
Six years ago Gaul was the driver in a car accident that resulted in the death of his best friend, Stewart Nel. He was not rendered a quadriplegic by the accident, but by his subsequent attempts to commit suicide after being convicted of culpable homicide and sentenced to four years in jail by a magistrate who is known for meting out harsh sentences.
A psychiatric evaluation stating that Gaul’s mental condition was unstable and that he would not withstand the trauma of a South African jail was presented in evidence in the trial. His third attempt at a drug overdose left him permanently brain damaged.
The magistrate who sentenced Gaul in 1997, Vincent Pienaar, has been criticised at least twice by the high court for his draconian sentences, but he confirms that he has yet to receive any form of sanction from the Magistrates’ Commission, the body which governs magistrates. This has spotlighted one of the most serious failings of South Africa’s criminal justice system the difficulty in making magistrates and judges accountable.
“Peter was so afraid of prison that he swore he would kill himself,” recalls William Gaul, Peter’s father.
Even though Peter Gaul had not served time in prison, the day he was sentenced he was incarcerated in the magistrate’s cells.
“He heard horror stories of how in the first 10 minutes a prisoner at Diepkloof gets raped seven times,” says his father.
In his judgement, Pienaar said: “I am going to be very short and sweet with you today, sir. I am not the type of person that couples fines to a life. I do not feel giving you a fine in cases like this is a suitable sentence and I do not feel correctional supervision is a suitable sentence.”
Gaul’s parents appealed in 1997 and the magistrate’s sentence was set aside. Handing down the appeal decision in the high court, Judge Jonathan Heher described the case as “extraordinary” on account of the unreasonable sentence.
Judge Heher homed in on Pienaar’s decision to shrug off the fact that Gaul had been under psychiatric evaluation and was mentally unstable.
“The magistrate’s approach was cavalier in the extreme,” the high court judge said. “He shut his mind completely to the proper balance of factors to which he had paid lip-service at the outset of his judgement,” said Judge Heher.
The judge further criticised Pienaar for over-emphasising the seriousness of the offence and the threat to society.
The magistrate’s approach to the sentence, said the judge, was “misdirected and superficial as to be one which merits the description of a disgrace”.
The judge set the magistrate’s sentence aside and substituted a fine of R1 000 or three months in jail.
Judge Heher described Pienaar’s judgement in Peter’s case to be “so seriously lacking in the qualities which the administration of justice demands that I feel constrained to bring this judgement to the notice of his superiors.”
This is not the first time Pienaar has been accused of inappropriate sentencing. In December 1998 Pienaar sentenced Hendrik Louw to three years in prison for pushing his sister-in-law off a balcony. At the time of sentencing Pienaar did not know from what floor Louw had pushed the woman. When the case found its way to a panel in the then High Court of Appeal it emerged that the balcony was in fact on the ground floor, and that his sister-in-law had suffered minor injuries only.
It was too late to reduce Louw’s sentence for a crime where a suspended sentence could have been reasonable.
Pienaar was criticised for the “blatantly unjust sentence” on insufficient evidence and that he had not bothered to find out how serious the assault was. In both Gaul’s and Louw’s cases, Pienaar set bail at R10 000.
When approached for comment the immaculately dressed Pienaar could not recall Gaul or the sentencing.
Pienaar refused to have his picture taken and was cagey on questions about accountability and discipline. He was also unaware of the appeal and that sentence had been set aside. “I hear many cases every day so it is difficult to remember all of them,” he said.
He confirmed that he had never been reprimanded or censured for any of his sentences.
“What kind of accountability does this magistrate face? I don’t believe Pienaar applied his mind,” says William Gaul. Peter was a first-time offender and 19 years old at the time of the case.
At the time of the sentencing Peter Gaul had completed a degree and a diploma and was going to do his honours in international relations. He was a manager at a CD store.
“He was a model youth but now he lies in bed for the rest of his life,” says his father.