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[2023] ZAECMKHC 103
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S v Nonkasu - Review Judgment (CA&R 150/2023) [2023] ZAECMKHC 103 (19 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE NO: CA & R:
150/2023
Delivered on 19
September 2023
In the matter between:
THE STATE
and
AMANDA NONKASU
REVIEW JUDGMENT
Bloem J
1.
In count 1 the accused was charged with an
offence contemplated in the now amended
section 17(a)
of the
Domestic
Violence Act 116 of 1998
. It was alleged that she contravened a
prohibition imposed on her in a protection order. In count 2 it
was alleged
that she assaulted the complainant with the intent to do
grievous bodily harm. She was convicted on both counts.
She
was sentenced to pay a fine of R1 000 or to undergo four
months’ imprisonment, of which half the fine and half the term
of imprisonment were suspended for three years on condition that she
not be convicted of committing an offence contemplated in
section
17(a)
committed during the period of suspension. The matter was
sent on review because the magistrate realised that he imposed only
one sentence although the accused was convicted of two offences.
He indicated that he had intended to order firstly, that
the two
counts be taken together for purposes of sentence; and secondly, that
the above sentence be suspended for three years on
condition that the
accused not be convicted of committing an offence contemplated in
section 17(a)
and/or assault with intent to do grievous bodily harm
committed during the period of suspension.
2.
I enquired from the magistrate whether the
conviction on count 2 did not amount to splitting of charges.
The magistrate’s
response was that, the accused should not have
been convicted on count 2, in that “
count
2 is also covered in count number 1. Reason being that in both counts
the intent is one, secondly both counts are based on
the same piece
of evidence/similar facts
”.
I now turn to the facts to determine whether it could be said that
the accused’s conviction on both counts
was in accordance with
justice.
3.
On 23 September 2022 the magistrate at East
London issued a protection order against the accused, at the instance
of the complainant.
She was prohibited from
inter
alia
assaulting the complainant or
entering her residence. The accused was thereafter charged with
having contravened the protection
order, it having been alleged that
on 12 October 2022 she entered the “
complainant’s
residence and strangled her whilst sitting on top her
”.
In count 2 the accused was charged with assault with intent to do
grievous bodily harm, it having been alleged that
on 12 October 2022
she assaulted the complainant “
by
strangling her and sitting on top of her with the intent of causing
her grievous bodily harm
”.
The accused pleaded guilty on both counts. The magistrate
convicted her on the basis of her statement which
her legal
representative handed into court, in which the accused set out the
facts which she admitted and on which she pleaded
guilty. In
the statement she admitted that the “
protection
order was duly served on me and is in force. And the accused
did upon or about 12.10.22 and at or near C-section
Duncan Village in
the district of East London wrongfully and unlawfully contravene an
order imposed on him/her, in that the accused:
entered complainant’s
residence and strangled her while sitting on top of her. I
plead guilty to contravention of protection
order, as well with
assault with intention of doing bodily harm
”
(sic).
4.
I
have two difficulties with the conviction on count 2. Firstly,
that conviction was not based on any facts. The accused
simply
said in her written statement that she pleaded guilty to having
contravened the protection order “
as
well as assault with intention of doing bodily harm
”.
Assault with intent to do grievous bodily harm consists in an assault
with is accompanied with the intent to do grievously
bodily harm.
[1]
For that offence to be committed, the assault must be committed with
intent to do grievous bodily harm. The onus rests
on the state
to prove beyond reasonable doubt firstly, that the accused had the
intent to assault the complainant; and secondly,
that the accused had
the intention to cause the complainant grievous bodily harm.
5.
In
S
v Mgcineni
[2]
the accused was convicted in the magistrate’s court of assault
with intent to do grievous bodily harm. The evidence
showed
that he hit the complainant several times with his fists in her face,
on her mouth and on her head. Despite the fact
that the
complainant lost 2 teeth and sustained swollen lips as a result of
the assault on her by the accused, the court set aside
the conviction
of assault with intent to do grievous bodily harm and replaced it
with a conviction of common assault. The
court warned against
it being inferred too easily from an ordinary attack with fists that
an assailant not only wanted to injured
his victim, but that he also
intended to seriously injure his victims. The court found that
the state failed to prove beyond
reasonable doubt that the accused
had the intention to seriously injure. The result was that he
could not be convicted of
assault with intent to do grievously bodily
harm, but only common assault.
6.
In the present matter, not only were there
no facts to demonstrate that the accused had an intent to do grievous
bodily harm, there
were no facts to demonstrate that the accused
assaulted the complainant, in the first place. For that reason,
the conviction
on count 2 cannot stand and must be set aside.
7.
But, assuming that the accused was
convicted in respect of count 2 on the basis of the admission in the
plea that she “
strangled [the
complainant] whilst sitting on top of her
”,
the conviction can nevertheless not stand and must be set aside.
The very same facts, namely that the accused strangled
the
complainant while sitting on her, cannot under these circumstances,
be used to convict the accused on both counts, which are
two
different offences. Secondly, if the admissions amounted to an
assault, there were no facts to demonstrate that the accused
had the
intent to seriously injure the complainant. On the basis of
S v
Mgcineni
, the accused could not be
convicted of assault with intent to grievously bodily harm. In
the circumstances, the accused was
wrongly convicted in respect of
count 2. The conviction and sentence in respect thereof must be
set aside.
8.
The sentence imposed on count 1 seems to be
appropriate. An interference with the sentence is accordingly
not warranted.
9.
In the circumstances, it is ordered that:
9.1.
The accused’s conviction on count 1
be and is hereby confirmed.
9.2.
For the sake of clarity, the accused is
sentenced on count 1, as follows:
“
The
accused is sentenced to pay a fine of R1 000 or to undergo four
months’ imprisonment. Half of the fine is suspended
for
three years and, in the event of the accused failing to pay the sum
of R500, half of the term of imprisonment is suspended.
The
sentence is suspended for three years on the condition that the
accused shall not be convicted of committing an offence
contemplated
in
section 17(a)
of the
Domestic Violence Act 116 of 1998
committed during the period of suspension.”
9.3.
The sentence referred to in paragraph 2
above is antedated to 17 March 2023.
9.4.
The conviction and sentence on count 2 are
set aside.
GH BLOEM
Judge of the High
Court
I agree.
BR TOKOTA
Acting Deputy Judge
President of the High Court
[1]
JRL
Milton
South
African Criminal Law and Procedure, Vol II Common-Law Crimes
3 ed (1996) at 432.
[2]
S
v Mgcineni
1993
(1) SACR 746
(E).