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[2010] ZAGPPHC 61
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S v Mathebula (500/09) [2010] ZAGPPHC 61 (13 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
REPORTABLE
Handed
down: 13 July 2010
High
Court Ref: 385
Magistrate:
LULEKANI
Case
no: 500/09
IN
THE MATTER OF:
The
State
versus
Obert
Mathebula
Accused
REVIEW
JUDGMENT
MAKGOBA J
[1] The accused was convicted in the
Magistrate’s Court, Lulekani on a charge of assault with intent
to do grievous bodily
harm. He was sentenced to pay a fine of
R2000-00 or to serve 10 months imprisonment which was wholly
suspended for a period of
2 years on condition that the accused was
not convicted of assault committed during the period of suspension.
[2] When the matter came before me on automatic review I
had reservations with regard to the conviction of the accused and
requested
the trial magistrate to comment on the following issues
raised by me:
“2.1 On the version of the
complainant, can it be said that the accused intentionally stabbed
the complainant with a broken
bottle?
2.2 On what basis did the trial
court reject the accused’s version that he intended to stab one
Lucky but mistakenly injured
the complainant?
2.3 For what reason would the
accused intentionally stab and injure the complainant, who is his
girlfriend, and whom he wanted
to rescue from the said Lucky?
2.4 In his reasons for judgment the
learned magistrate stated the following on page 46 of the record:
“Foreseeability test comes to
the picture here that a reasonable person in the accused capability
should have foreseen that
he will stab the complainant with a bottle.
Then the accused should have exercised that caution by not using the
said bottle because
Lucky was not next to him, there was the
complainant between him and Lucky.
2.5 What form of
mens
rea
did the learned
Magistrate have in mind in the circumstances? Is it
mens
rea
in the form of
dolus
(intent) or
culpa
(negligence) that was applied by the learned magistrate?”
[3] The trial magistrate in his response substantiates
the reasoning behind the conviction and submitted that the conviction
should
stand. The matter was referred to the Director of Public
Prosecutions for comments and the latter, correctly in my view, does
not support the conviction of the accused.
[4] The complainant, Eunice Ngobeni,
who is the accused’s girlfriend, testified that on 24 December
2009 the accused found
her with a certain boy, Lucky who wanted to
assault her and the accused wanted to separate or rescue her from the
said boy. At
this stage of her evidence and before she could
describe how she was assaulted by the accused, the prosecutor
indicated to her
that she was deviating from her statement she made
to the police. She however stated that what she was telling the
court is the
truth.
[5] The complainant went further to
say that the accused did not want to stab her; he wanted to stab
Lucky but ended up in stabbing
her. She said Lucky wanted to hit her
and then the accused aimed at stabbing Lucky but accidentally stabbed
her. She stated further
that at the time the accused stabbed her
Lucky was busy hitting the accused.
[6] When asked by the prosecutor as
to how it came that the accused stabbed her she answered by saying
that:
“I did not see as to how he
stabbed me I just found myself injured.”
She said she was injured on her shoulder, waist and on
her left ear.
[7] Regarding the injuries she
sustained the complainant showed to the court and the court observed
and recorded a scar on the left
ear measuring a centimetre in length
and also a half centimetre scar on the back of the ear.
A medical report in the form of form
J88 was handed in as an exhibit. On the report the doctor recorded
the following:
“Alleged to have been assaulted. The left ear
(Pinna) is torn, 5cm long including the cartilage.”
[8] It is significant to note from the court record that
the court put the following question to the complainant who answered
same
without any hesitation:
“COURT: Why is the doctor not
indicating here that you were stabbed on your shoulder and waist?
Did you see that?
ANSWER: I did not know the doctor
because he was a male doctor. I did not show him my shoulder and my
waist.
COURT: And your doctor and you did
not want to show him your waist and your shoulder?
ANSWER: I did not have any problem
about my waist and my shoulder. I just wanted him to stitch my ear.”
[9] On the version of the complainant the accused did
not stab her intentionally. Throughout her evidence she testified
that the
accused had tried to actually protect her from another
person who wanted to assault her.
The complainant, even if she may
have deviated from her statement made to the police, was never
discredited or declared recalcitrant
by the prosecutor. There is
therefore no reason to ignore her evidence. Throughout her testimony
the complainant always maintained
that the accused at no point
deliberately stabbed her.
[10] The trial court rejected the
accused’s version after applying the “foreseeability
test”. In terms of this
test the magistrate stated that a
reasonable person in the capability of the accused should have
foreseen that he will stab the
complainant with the bottle. The
magistrate further noted in his reply to my query that the accused
had intention in the form
of
dolus
indirectus.
[11] It is trite that
mens
rea
in the form of
dolus
(intent) is required for a conviction on the offence of assault. By
applying the test of a reasonable person in determining the
issue of
foreseeability the magistrate had in mind
mens
rea
in the form of
negligence not
dolus
indirectus
as he
purports to say.
[12] In
S
v Dladla and Others
1980
(1) SA 1
(A) Jansen JA referred to the case of
S
v Mienies
1978 (4)
SA 560
when looking at
dolus
and held that
“…clearly a gradation
according to the degree of foreseeability is intended. It is not
post facto
objectively determined foreseeability, but the subjective
contemplation of the doer in the commission of the act, whether he
regarded
the possibility as a faint or strong possibility…
with intention one is concerned with what the doer subjectively
foresaw;
with negligence one is concerned with what, according to an
objective standard, he ought to have foreseen.”
[13] In a further response to my
queries the learned trial magistrate stated that the evidence of the
complainant is to the effect
that she was stabbed on her shoulder,
waist and had her left ear cut. According to the magistrate the
complainant was therefore
stabbed several times by the accused while
holding the bottle. In the magistrate’s view, it cannot be
said that that was
done by mistake by the accused.
[14] It is evident from the record of
proceedings in the trial court that it was never confirmed that the
complainant was indeed
stabbed thrice. The complainant did testify
that she was stabbed thrice but on the J88 medical report that was
presented to court,
there was only the injury on the ear noted. If
there were two other injuries then the doctor would have surely noted
this down
on the J88.
[15] In my view there was no
intention on the part of the accused when committing this act. He
had seen this person attempting
to assault his girlfriend and his
immediate reaction was to protect her. He attempted to stop the
attack on her with the use of
a broken bottle. During the scuffle
the complainant was injured with the broken bottle on her ear. He
did not intend to stab
her, neither did he have intention in the form
of
dolus indirectus.
[16] Accordingly the accused in this matter could not
have foreseen the result of injuring the complainant; he simply
wanted to
protect her from an assault using a broken bottle.
Therefore, the conviction of the accused on assault with intent to do
grievous
bodily harm was not in accordance with the law and should be
set aside.
[17] I accordingly
order that the conviction and sentence be and are hereby set aside.
EM
MAKGOBA
JUDGE
OF HIGH COURT
I agree
B R DU PLESSIS
JUDGE
OF THE HIGH COURT