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2021
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[2021] ZALMPPHC 43
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Mbiza v S (A08/2020) [2021] ZALMPPHC 43 (11 August 2021)
INTHE
HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION-POLOKWANE
CASE
NUMBER: A08/2020
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
JOYCE
MOKGAETJI MBIZA
APPELLANT
And
STATE
RESPONDENT
JUDGEMENT
AML
PHATUDI J
Introduction
[1]
The appellant, an educator at Marota Primary School, Motodi Village,
Limpopo, was arraigned at Burgersfort Regional Court for
contravention of section 305 (3) (a) read with section 1 of
Children’s Act 38 of 2005 (the Act) also read with Children’s
Amendment Act 41 of 2007. She was, in the alternative, charged with
assault with intent to do grievous bodily harm read with section
51(2) of
Criminal Law Amendment Act 105 of 1997
.
[2]
It is alleged, as worded in the charged sheet, that “on
or about 27 July 2017 and at or near Motodi Village, …
the
accused, being the parent(s) or guardian(s) or the
person(s) having custody of the child(ren), to wit,
O…
S… , did wrongfully abused or deliberately neglected the
child(ren) or allow him/her/them to be abused by
hitting her with
stick and open hands
”. The alternative charge is
worded-“upon or about 27 July 2017 and at or near Motodi
Village… the accused did
unlawfully and intentionally assault
O… S… by hitting her with a stick and open hands with
the intent of causing
him/her grievous bodily harm.”
[3]
The appellant enjoyed legal representation when pleading not guilty
to the charge preferred against her. She exercised her rights
to
remain silent. The Burgersfort Regional Magistrates’ Court (per
MD Mabitsela) found the appellant guilty of
assault common
.
[4]
The appellant is before this appeal court, with leave of the trial
court, only against conviction.
Factual
background
[5]
The evidence the state led dictates that the child OS was allegedly
assaulted by the appellant at Marota Primary School on the
26 July
2017. She backed home and lied on top of the bed. Her mother Katlego
Bessy Hlongwa, enquired from her if she was okay.
OS told her mother
that the appellant assaulted her with open hands. The following day,
Hlongwa took OS to Dr Phetla.
[6]
Dr Phetla confirmed in his testimony that he medically examined OS on
27 July 2017. He completed a document headed: Report on
a
Medico-Legal Examination by a Health Care Practitioner. This is
commonly known as J88. He penned in it- ‘oral history as
provided by the mother. The child was assaulted, hit by teacher with
an open hand to the face and on the head with a stick’.
The
document was handed in and accepted as evidence. During cross
examination, Dr Phetla confirmed to have consulted and medically
examined OS on 27 July 2017 for seizures.
[7]
It is evident that Hlongwa only managed to cause registration of the
complaint with the police in November 2017. When making
the statement
with the police, she is recorded to have reported that the incident
occurred on the 27 July 2017. Contestation of
the occurrence date led
to the leading the evidence of the police officer who reduced the
statement to writing. The police officer
confirmed that what he
reduced to writing was exactly what he was told by Hlongwa.
[8]
OS testified that the alleged assault occurred on the 26 July 2017.
She alleged to have been assaulted with open hands and a
stick on her
head. She bled from her forehead. She changed tune when showered with
a hail of questions during cross examination.
She confirmed that she
encounters seizures attacks at irregular intervals. When so attacked,
she experiences a black out and does
not know as to what happened to
her thereafter.
[9]
The appellant testified that she is an educator and a class teacher
of grade 2B. OS is a pupil at grade 2C. The class teacher
for grade
2C was not at work for the week ending 28 July 2017. She took care of
both grades 2B and 2C pupils. She indicated that
OS was not at school
on the 26; 27 and 28 July 2017. The school register certifying the
absence of OS from school on the said dates
was handed up and
accepted as an exhibit. She denied, vehemently so, to have assaulted
OS on the day in question. She remained
firm on her version
notwithstanding her lengthy cross examination. She stated that
Hlongwa solicited some money from her. She (Hlongwa)
initially sought
R50,000 and later R35,000 which was ultimately reduced to R30,000.
She refused to accede to the “offers”
because she did not
assault OS.
[10] The
trial court evaluated the evidence led and applied the applicable law
as defined. An emphasis was added when
the definition of the offence
was placed on record. The trial court pronounced that ‘
section
1
of Children’s Act 38 of 2005 defines abuse in relation of
child as a form of harm, or ill-treatment that is deliberately
inflicted on a child
and includes the following, assaulting a
child or inflicting any form of deliberate injuring to a child’.
(emphasis added)
[11] This
is what the trial court had to say in its findings:
‘…
can we say
in the results or in this instance that the accused person before
this court Ms Mbiza deliberately inflicted any form
of harm or
ill-treatment on the complainant? It is true that corporal punishment
is no longer allowed in South Africa, but did
she do that? Clearly
she did not cause any harm or ill-treatment on the child, that is,
taking into consideration the evidence
before this court and
therefore I am not satisfied that the accused person abused the child
on the day in question’.
The
Law
[12]
Section
305
(3) of Children Act provides that ‘[a] parent, guardian,
other person who has parental responsibilities and rights in respect
of a child, care-giver or person who has no parental responsibilities
and rights in respect of a child but who voluntarily cares
for the
child either indefinitely, temporarily or partially, is guilty of an
offence if that parent or care-giver or other person
(a) abuses or
deliberately neglects the child or abandon the child’. The act
defines the word “abuse” to include
assaulting and any
form of ill-treatment.
[1]
[13] Assault
is defined as the unlawful and intentional application of force to
the person of another or inspiring a
belief in that person that force
is immediately to be applied as threatened.
[2]
Evaluation
[14] The
trial court found that the state failed to prove its case beyond
reasonable doubt as charged in the main count.
Instead of the
acquitting the appellant, the trial court considered the alternative
charge- assault with intent to do grievous
bodily harm. Once more,
the trial court found the state to have failed to prove its case
beyond reasonable doubt. The trial court,
notwithstanding its
findings, found the appellant guilty on assault common.
Can
common law offences ( assault common and/or assault with intent to do
grievous bodily harm) be deemed to have been repealed
by the
provisions of section 305 (3) of the Childrens Act, in so far as it
relates to perpetration of such offences against a child(ren).
[15] It
is stipulated in section 28 of the Constitution of the Republic of
South Africa that every child has the right
to be protected from
maltreatment, neglect,
abuse
or degradation.
[3]
The objective
of the Children’s Act read with the provisions of section 12
[4]
of the Constitution is to
protect
the children against any form of abuse
at any place where the child(ren) may be at
[5]
,
at any given time. The Act defines the word “abuse”, in
relation to a child, to mean
any
form of harm
or
ill-treatment deliberately
inflicted
on a child
and includes (a)
assaulting
a child
or inflicting any other form of deliberate injury to a
child.(emphasis added)
[16] The
Children’s Act created a statutory offence in relation to abuse
or any kind of harm perpetrated against
a child. It further provides
for sentencing provision as clearly set out in section 305 (6)
[6]
and (7)
[7]
respectively.
[17] It
is trite law that a
n
Act of Parliament overrules the common law
if
both apply in the same area. Some Acts explicitly repeals certain
common law offences
[8]
. Other
Acts do add to definitions of common law offences, which, in my view,
replaces the common law completely-such as section
305 of the
Childrens Act. It is further in my view, perhaps developing the
common law with the inherent powers vested in this court
in terms of
section 173 of the Constitution
[9]
,
that where common law has been replaced, such common law offence
should not be regarded as a competent verdict to the provided
statutory offence(s).
[18] It
is clear from the trial court’s judgment that the state failed
to prove its case beyond reasonable doubt
the guilt of the appellant
as charged and, based on the principle enunciated above, the trial
court ought to have acquitted the
appellant. In any event, is the
appellant guilty of the offence-‘assault common’?
[19] It
is perhaps an opportune time to consider the trial court’s
guilty verdict. The complainant said she was
assaulted with open
hands and a stick. She bled and sustained a blue eye injury. When
testifying in chief, OS denied having ever
had seizures in her life.
She, during cross examination, conceded to have had seizures before
and she often gets attacked at irregular
intervals. She even said
that when so attacked, she does not see herself. Immediately after
having said that, the trial court intervened
and condescended to the
defence counsel who then discontinued with the cross-examination on
that issue.
[20] It
is evident from the record that OS was medically examined by Dr
Phetla on the 27 July 2017 for seizures as presented
to him by
Hlongwa. The doctor opined that the injury could have been caused by
the falling of OS when attacked by seizure.
The
Law and legal principles applicable
[21] As
a point of departure, the principle set in
R
v Dlhumayo and Another
[10]
is that
‘
A court of appeal
must bear in mind that a trial court saw the witnesses in person and
could assess their demeanour. If there was
no misdirection of facts
by the trial court, the point of departure is that its conclusion was
correct. The court of appeal will
only reject a trial courts
assessment of evidence if it is convinced that the assessment is
wrong. If the court is in doubt, the
trial court’s judgement
must remain in place. The court of appeal does not zealously look for
points upon which to contradict
the trial courts conclusions, and the
fact that something has not been mentioned does not in itself mean
that it has been overlooked.’
[11]
[22] It
is trite law that an appeal court decides the appeal on the facts
before it as contained within the four corners
of the record on
appeal. The appeal court is thus duty bound to establish from the
record if the trial court has either misdirected
itself on the facts
or has applied the law erroneously to the facts. In coming to its
findings and a verdict on assault common,
the trial court had this to
say:
‘
According to her
(the appellant), she was reprimanding the child and on the
alternative count of assault with the intention to do
grievous bodily
harm, can it be said that the accused person had the intention to
cause grievous bodily harm on [OS] as a result
of assault?’
[23] I
perused the record placed before this appeal court and considered the
evidence led before the trial court. I am
unfortunately unable to
find a shred of evidence where the appellant testified to have said
that “she was reprimanding the
child.” In fact, the
appellant denied, throughout her testimony, having ever committed the
offence. She even led an uncontested
evidence that OS was in fact not
at school on the day and date she (OS) alleged to have been
assaulted.
Report
on a Medico-Legal Examination by a Health Care Practitioner
[24] Counsels
for the appellant submits that it is not possible to complete a
Report on a Medico-Legal Examination by
a Health Care Practitioner-
J88, before reporting the matter to the police. The police are the
people who provide complainant(s)
with J88 for completion by a
qualified medical practitioner. He submits that it is common cause
that the case was only reported
to the police in November 2017. He
further submits that it is surprising to note from the evidence
tendered that Dr Phetla completed
the form on 27 July 2017.
[25] On
perusal of the record, I find it apposite to look into how the J88
was completed. This is how the evidence unfolded:
Mr. Sithole
: …I
mean you complete this document, the J88
Dr Phetla
: Yes
Mr. Sithole
: Now
let us fast forward a bit. The mother, when she came to your surgery,
she came…regarding what? I just want to get clarity
on that.
Dr Phetla
: When
she came, it was not for the first time though, she brought me this
form to fill in.
[26] Counsel
for the appellant submits that it be inferred that Hlongwa had a
motive of incriminating the appellant.
Can it be said that the motive
was to solicit money from the appellant as the evidence show that she
sought R50,000 and later R35,000
which was ultimately reduced to
R30,000 from the appellant? I am afraid of venturing into the issue
of motive in the absence of
evidence to that effect.
Conclusion
[27] I,
having read from the record of proceedings and having heard counsel,
find that there was a misdirection on facts
by the trial court that
led to the pronouncement of the guilty verdict on assault common
which warrants interference by this appeal
court. The trial court’s
conclusion cannot, in my view, be said to be correct. I am persuaded
to accept that the trial court’s
assessment is wrong. I am thus
duty bound to reject its assessment of evidence relating to assault
common which the appellant is
found guilty of.
[28] I
further find, based on the evidence placed on record, that the state
failed to prove its case beyond reasonable
doubt the guilt of the
appellant as charged even on any competent verdict that was
preferred. The trial court’s conviction
falls to be set aside.
[29] I,
in the result, would make the following order.
Order
29.1 The appeal is
upheld.
29.2 The trial
court’s conviction of assault common is set aside and replaced
with the following:
“
The accused is
found not guilty and must be discharged and released.”
AML PHATUDI
JUDGE OF THE HIGH
COURT
I agree and it is so
ordered
MV SEMENYA
DEPUTY JUDGE PRESIDENT
LIMPOPO
DIVISION-POLOKWANE
APPEARANCES
For
Appellant:
Mr.
M.C. Mavasa
Email:
musama@legal-aid.co.za
M3musacyril@gmail.com
trsitholeattorneys@telkomsa.net
Instructed
by:
Legal
Aid South Africa
Burgersfort-Limpopo
For
Respondent:
Adv.
P.P. Magoda
Email:
pamagoda@npa.gov.za
Instructed
by:
Director
of Public Prosecutions
Polokwane-Limpopo
Heard on:
23 April 2021
Judgement delivered on:
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email and release
to SAFLII. The
date and time for hand-down is deemed to be 10h00 on 12 August 2021.
[1]
“abuse”, in relation to a child, means any form of harm
or ill-treatment deliberately inflicted on a child, and includes-
(a) assaulting a child or inflicting any other form of deliberate
injury to a child
[2]
Burchell and Milton Principles of Criminal Law (Juta & Co Ltd,
Cape Town 1991) at page 423
[3]
28. Children.-
(1) Every child has the
right-
(a) …;
(b) …;
(c) …;
(d) to be protected from
maltreatment, neglect, abuse or degradation;
[4]
Freedom and security of the person.-
(12)Everyone has
the right to freedom and security of the person, which includes the
right-
(a) …
(b) …
(c) to be free
from all forms of violence from either public or private sources;
(d) …
(e) not to be
treated or punished in a cruel, inhuman or degrading way
[5]
Either at home or at any care centres.
[6]
Section 305
(6) Subject to
subsection (8), a person convicted of an offence in terms of
subsections (1);(2);(3);(4) or (5) is liable to a
fine or to
imprisonment for a period not exceeding ten years, or to both a fine
and such imprisonment.
[7]
Section 305
(7) A person convicted
of an offence in terms of subsections (1);(2);(3);(4) or (5) more
than once is liable to a fine or imprisonment
for a period not
exceeding 20 years or to both a fine and such imprisonment.
[8]
Section 68(1)(b) reads as follows:
(1)
The common law relating to the
(a )…
(b) crimes of rape,
indecent assault, incest, bestiality and violation of a corpse,
insofar as it relates to the commission of
a sexual act with a
corpse, is hereby repealed.
[9]
Section 173. Inherent power.-
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and
to develop the common law, taking into account the interests of just
[10]
1948 (2) SA 678
(A)
[11]
See: S v Robbinson
1968 (1) SA 666
(A) @675 H; S v Hadebe and Others
1997 (2) SACR 641
(SCA) @ 645; S v Mononyane and Others
2008 (1)
SACR 543
(SCA) [15]