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[2019] ZAFSHC 171
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Vries v S (A15/2016) [2019] ZAFSHC 171 (19 September 2019)
IN THE HIGH COURT OF
SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A15/2016
In
the matter between:
EMILY
VRIES
Appellant
And
THE
STATE
Respondent
CORAM:
OPPERMAN, J
et
MOENG, AJ
JUDGMENT
BY:
MOENG, AJ
HEARD
ON:
29 JULY 2019
DELIVERED
ON:
19 SEPTEMBER 2019
[1]
The appellant was convicted in the Bloemfontein Regional Court on one
count of assault with intent to do grievous bodily harm
of a two year
old child and she was sentenced to five years imprisonment in terms
of
section 276(1)(i)
of the
Criminal Procedure Act 51 of 1977
. This
appeal is against conviction only and is with leave of the trial
court.
[2]
The appellant relied on several grounds of appeal. Relevant to us,
are the grounds that the inference that the appellant
caused the
injuries to the child was not the only reasonable inference to be
drawn from the facts. The appellant further
contends that in case the
State proved that this was the only reasonable inference, it failed
to show that the appellant had the
intention to commit the offence.
[3]
The allegations in the charge sheet were that the accused
‘assaulted a two year old child by burning him with hot water,
failing
to change his nappy, which resulted in serious nappy rash and
vigorously washing the affected areas which resulted in/caused
wounds/injuries
with the intention to cause him/her grievous bodily
harm’
.
[4]
The following emerged from the evidence: On 12 September 2013
the child’s mother, “MBS”, took him to
a crèche
which he attended. She testified that she bathed the child, “OS”,
that morning and he had no injuries.
It is common cause that OS was
left in the appellant’s care for the day. The appellant
had been a teacher at the said
crèche for approximately 26
years and OS was in her class.
[5]
The appellant testified that upon the child’s arrival, he went
to play, had breakfast and she later gathered all children
for their
activities. OS never went out of her sight. She discovered that OS
had soiled himself. She took him into the class to
clean him up on a
table. She discovered that he had burn wounds as will be described
later in this judgment. She requested an employee
to call the
principal. She disputed having caused the injuries.
[6]
The principal testified that she was alerted of the child’s
injuries by one of the crèche’s employees. She
went to
the appellant’s class. The appellant was busy cleaning
the burns. She ordered her to stop since she was hurting
him. The
appellant informed her that she noticed the burns when she was
cleaning him. She (the principal) in turn called the child’s
parents. She testified that she cannot tell whether OS was burnt at
home or at school even though she told the child’s mother
that
he was burnt at home.
[7]
MBS testified that the principal told her that OS was brought to
school already injured and she decided to lay a charge against
the
appellant. She laid a charge against her as the child was left in her
care.
[8]
It is common cause that the class concerned was fitted with a hand
basin that had hot and cold water taps. The hand basin is
not
spacious enough to fit the whole body of a child. The principal
testified that she conducted an inspection on the taps after
the
incident. The water temperature from the hot water tap was extremely
high and they had to get a plumber to turn it down. She
further
testified that the hot water tap was on the right hand side of the
basin. The J88 in turn reflected that OS sustained some
of the burn
wounds under the arm on the right lateral side of his back and on his
chest.
[9]
Dr. Brits, who was called by the appellant after the state elected
not to call her, examined OS on the same day at around
14h00.
She observed the following injuries: superficial burn wounds below
the right arm, burn wounds on the genitals, on the right
side of the
buttocks and two burn spots on the chest. The burns on the buttocks,
according to the J88, are close to the anus and
the testicles. These
burns were in the skin folds. This, Dr Brits testified, excluded the
possibility of nappy rash. She testified
that the burns were probably
caused by hot water that was spilt on the child. She also believes
that it could not have been accidental
burns as the injuries on the
genitals and the buttocks should have been caused when the child’s
nappy was off.
[10]
Dr. Brits indicated during cross examination that it is possible that
the burns on the genitals and the buttocks could have
been caused by
the child having been placed in a hand basin and exposed to hot
water. She testified that it was unlikely
that these burns were the
result of a short exposure to hot water since they were in the skin
folds. She further testified that
the burns underneath the right arm
were probably caused when the child’s arm was in an elevated
position. The burns were
fresh in the sense that they were inflicted
within 24 hours of the examination. She testified that these burns
would not have been
visible when the child was dressed.
[11]
The regional magistrate acknowledged that there was no direct
evidence linking the appellant to the commission of the offence
and
that inferential reasoning had to be applied. The only issue that the
regional magistrate regarded as having been in dispute
was whether
the appellant caused the injuries that were sustained by OS.
[12]
The presence or lack of intention was admittedly not raised during
the trial and was only raised by the appellant in her notice
of
appeal and in the heads of argument. It appears to have been a
foregone conclusion in the mind of the regional magistrate that
once
he was satisfied that the appellant was responsible for the injuries
the intention to assault and to do grievous bodily harm
could be
accepted.
[13]
The regional magistrate concluded that OS was handed to the appellant
without injuries and that he was in her care from that
stage until
she discovered the injuries. He further concluded that the
appellant’s version that OS was brought to the crèche
injured was improbable. The fact that OS could play and have
breakfast having such severe injuries was in the regional
magistrate’s
view highly improbable. He concluded that the
positioning of the hot water tap and the location of the injuries was
consistent
with the inference that the appellant caused the injuries.
He was therefore convinced that this was the only reasonable
inference
to be drawn under the circumstances and convicted the
appellant of having assaulted the complainant with the intention of
causing
him grievous bodily harm.
[14]
Advocate Strauss, counsel for the respondent, did not support the
conviction. He supported the finding that the appellant caused
the
injuries that OS sustained in his heads of argument but sought to
distance himself from this during the appeal deliberations.
He
conceded that the state failed to prove that the appellant
intentionally caused the injuries and at most, so the argument went,
the appellant was negligent.
[15]
Mr. Reynecke for the appellant in turn contended that the appellant
did not have a fair trial since the magistrate descended
into
the arena. This aspect was admittedly not raised in the notice of
appeal and only came to light in his heads of argument
and during
the appeal deliberations. We do not believe that the
magistrate’s questions were such that it may be concluded
that
he descended into the arena. Mr. Reynecke further argued that the
child should have been injured before he was brought to
school.
[16]
This Court's powers to interfere on appeal with the
findings of fact of a trial court are limited.
See
R
v Dhlumayo
1948 (2) SA 677
(A). The trial court’s
findings are presumed to be correct in the absence of any
misdirection in its conclusion, including
its acceptance of the
evidence presented by the State witnesses.
[17]
In order to succeed on appeal, the appellant must convince us on
adequate grounds, that the trial court was wrong in accepting
the
State’s evidence. It is only in exceptional cases that this
Court will be entitled to interfere with a trial court's
evaluation
of oral testimony bearing in mind the advantage which it had of
seeing, hearing and assessing the witnesses. See
S v Francis
1991 (1) SACR 198
(A) at 204 D – E.
[18]
It was not in dispute that OS was burnt as aforementioned. The
question was whether he was injured before or after he was brought
to
the crèche. The subsequent question was, if injured at the
crèche, whether it was the appellant who caused the
injuries.
No one observed the appellant inflict the
injuries that OS sustained.
The prosecutor in
the trial court elected not to call the witness that called the
principal and indicated that she will not
advance the case any
further.
[19]
The question that the trial court sought to answer was whether, based
on the totality of the evidence, the inference that the
appellant
caused the injuries was consistent with all the proven facts and that
no other reasonable inference could be drawn from
the evidence. (See
R v Blom
1939 AD 188).
[20]
It is trite that the court, in applying inferential reasoning, must
not take each circumstance separately and give the accused
the
benefit of any reasonable doubt as to the inference to be drawn
from each one so taken. It must carefully weigh the cumulative
effect
of all of the facts together, and it is only after it has done so
that the accused is entitled to the benefit of any reasonable
doubt
which it may have. (See
R v De Villiers
1944 AD 493
508). Courts should likewise carefully distinguish facts from
speculation or assumptions. One can only draw inferences if there
are
objective facts from which to infer such facts which are sought to be
established.
[21]
It was put to the principal during cross examination and subsequently
during the deliberations before judgment that OS could
have been
injured by any one of the staff members at the school or he could
have been brought to the crèche in that condition.
These were
therefore the inferences which the appellant sought the court to draw
from the evidence. The State in turn argued that
the only inference
to be drawn from the evidence was that the injuries were caused at
the crèche by the appellant.
[22]
As indicated earlier, inferences are to be drawn from facts and not
speculation. The question was therefore whether the inference
that
any staff member could have caused the injuries or that OS was
already injured when he was brought to the crèche was
reasonable inferences based on the evidence. I do not think so.
[23]
MBS testified that OS was handed to the appellant without any
injuries. The appellant in turn testified in no uncertain terms
that
the injuries were not caused at the school. This she said was as a
result of the fact that OS was at all times in her care
as she never
lost sight of him. She therefore excluded the inference that the
child may have been injured at the school. The inference
that the
child was injured at school could justifiably therefore not be drawn
as it was excluded by the direct evidence of the
appellant.
[24]
The other inference which the appellant sought the trial court to
draw was that OS was brought to the crèche injured.
It is of
importance to note that the evidence presented by MBS was that she
bathed OS that morning and he did not have any injuries
when he took
him to the crèche.
[25]
The evidence of Dr Brits was in turn that the injuries were fresh and
they were probably caused within 24 hours of the examination.
Dr
Brits could not exclude the possibility that the burns were caused
before the child was brought to the crèche. Logic
dictates
that the possibility that the injuries were caused at the crèche
could likewise not be excluded as OS had been
there within the 24
hour period that the injuries were inflicted.
[26]
The testimony by MBS that OS had no injuries when he left home was
not disputed during cross examination. She was not confronted
about
the inference that the appellant sought the court to draw that OS was
brought to the crèche injured. The only question
that was
posed to her was that ‘she was not at the crèche when
the child was burned’. This question intimated
that OS was
injured at the crèche and not at home. It is therefore mind
boggling that the appellant sought this inference
to be drawn, if on
her own version, the child was injured at the crèche.
[27]
It is trite that the failure to cross-examine a witness about an
aspect of his evidence may have the result that the
evidence
not disputed may not be called into question later. It is likewise
trite that a cross- examiner who intends to dispute
what the witness
says has a duty to give such a witness an opportunity to explain his
evidence or to qualify it, or to properly
reveal its basis to the
court. MBS should logically have been confronted with the appellant’s
version that OS was burnt before
he was brought to the crèche.
[28]
It would have been illogical to infer that OS was injured before he
was brought to the crèche without the mother, who
testified
that OS was not injured when she brought him to the crèche,
having been confronted about the issue. The regional
magistrate could
therefore not regard such inference as reasonable. This inference
could justifiably also not be drawn.
[29]
The undisputed facts that emerged during the trial were that OS was
handed to the appellant on the day of the alleged incident.
As
indicated above, the fact that OS was not injured when he was left
with the appellant was not disputed. It can therefore be
accepted
that he was not injured when he was left with the appellant.
[30]
The appellant’s evidence was that OS was under her care from
the time that MBS handed him over to her until she discovered
the
injuries. She in turn confirmed that OS was never out of her sight
during this period.
[31]
OS sustained burn wounds which Dr Brits described as superficial and
probably caused by hot water which was spilled on him.
When this
statement is viewed in the context of her entire evidence, the
spillage should have been under the arm as the doctor
later testified
under cross examination that the burns on the buttocks could not have
been caused by a brief exposure to hot water.
This was because the
burns penetrated the skin folds. Dr Brits further testified, under
cross examination, that the burns on the
buttocks could have been as
a result of the child having been placed in a hand basin containing
hot water.
[32]
It was the appellant’s undisputed evidence that OS soiled
himself. His clothes were soiled and so was his body. This
prompted
her to clean him. It is common cause that the class room in which OS
was cleaned had a hand basin with a hot and
cold water tap. The
undisputed evidence of the principal was that the water temperature
from the hot water tap was excessively
high.
[33]
The appellant, initially during her evidence in chief, testified that
she took OS to the hand basin to wash him. She however
later changed
track and indicated that she cleaned him on the table, which was
approximately three to four meters from the hand
basin. She testified
that she soaked the face cloth in the water and cleaned OS with it.
[34]
The regional magistrate inferred from these facts that the injuries
that OS sustained were caused by the accused when she washed
OS in
the basin. He concluded that the injuries were consistent with the
fact that OS was placed in the hand basin with his exposed
buttocks
while the water temperature was too high. He further concluded that
based on the medical evidence, the burn under the
arm should have
been caused when the child’s arm was lifted.
[35]
This conclusion cannot be faulted. Logic dictates that having soiled
himself, the appellant wanted to wash the dirt from OS
and used hot
water that injured the child. The appellant’s evidence that she
soaked the face cloth in the basin and thereafter
wiped OS with it is
in my view simply untenable. Her testimony that she regulated the
temperature of the water in the hand basin
is likewise unsound since
OS would not have sustained the burns if the water was lukewarm. OS
would likewise not have sustained
burns that the doctor described as
burns that were caused by a spillage of hot water and burns that
penetrated into the skin folds
if she only used a face cloth to wipe
him.
[36]
The argument that the medical evidence is inconsistent with the
inference that the regional magistrate sought to draw is in
my view
misplaced. The hot water tap was situated on the right hand side and
the burns caused by the water spillage were located
on the right
chest and under the right arm, towards the side of the back. OS was
only two years old and he could fit partially
into the hand basin.
Probabilities are, in my view, that the burns were caused when OS was
placed in the hand basin and hot water
spilled on his body to remove
the dirt.
[37]
Dr Brits indicated under cross examination that it is possible that
the burns on the genitals and the buttocks could have been
caused
when OS was placed in the hand basin and exposed to hot water. She
testified that it was unlikely that these burns were
the result of a
short exposure to hot water since they were in the skin folds.
[38]
I am satisfied that the regional magistrate’s reasoning cannot
be faulted. The inference that was drawn was in my view
not based on
speculation but was supported by facts. His reasoning was in my
view in line with the cardinal rules of logic
as stated in
S v
Blom
.
[39]
One can therefore accept that the water that the appellant spilled
and dipped the child’s buttocks and genitals into
was hot and
caused the superficial burn wounds. The allegation in the charge
sheet that the appellant failed to change the child’s
nappy
which resulted in serious nappy rash was rejected by the medical
evidence. It is further not in dispute that the appellant
wiped the
burnt wounds on the buttocks and the principal had to stop her.
The element of the impairment of the child’s
bodily integrity
was therefore satisfied.
[40]
Having so concluded, the next question is whether the appellant had
the requisite intention to assault OS and in addition whether
she had
the intention to cause him grievous bodily harm. The trial court did
not consider this issue. As indicated earlier, the
presence or lack
of intention was not raised during the trial and was only raised by
the appellant in her notice of appeal and
in the heads of argument.
It was therefore a foregone conclusion in the mind of the regional
magistrate that once he was satisfied
that the appellant was
responsible for the injuries, the intention to assault and to do
grievous bodily harm could be accepted.
Nothing precludes us to
consider this aspect on appeal.
[41]
According to
CR Snyman Criminal Law
6th Edition at page
177, ’intention in the technical sense of the term can be
defined as the will to commit the act or cause
the result set out in
the definitional elements of the crime, in the knowledge of the
circumstances rendering such act or result
unlawful’.
[42]
Without fear of stating the obvious, there are three forms of
intention. These are, direct and indirect intention, as well as the
‘problematic’
dolus eventualis
. It goes without
saying that there is no evidence suggesting that the appellant had
the direct or the indirect intention to injure
the child. The
question is whether she had the requisite intention in the form of
dolus eventualis.
[43]
The learned author, Snyman, aptly describes this form of intention as
follows:
‘
A person acts with
intention in the form of
dolus eventualis
if the commission of
the unlawful act or the causing of the unlawful result is not his
main aim, but he subjectively
foresees
the possibility of the
result, and
reconciles
himself to this possibility’.
[44]
The author states that a perpetrator acts with this form of intention
if he directs his will towards a certain event, but foresees
that if
he achieves this event there is a possibility that another result,
might ensue. However, he does not allow himself to be
deterred by the
foreseen possibility, and proceeds with his original plan,
indifferent as to whether the result may ensue. In the
course of
committing the act, the result which he foresaw does in fact ensue.
In the eyes of the law he then has intention in respect
of the result
which ensued.
[45]
It is trite that intention in the form of
dolus eventualis
relates
to circumstances or consequences which the actor does not plan or
desire but which, in the light of human experience, can
be expected
to follow if the actor proceeds with a planned course of action. See
CR Snyman
supra
.
[46]
The test to determine intention is admittedly a subjective one. The
question is whether the appellant, did, subjectively foresee
the
possibility that OS will sustain burn wounds and whether she
reconciled herself to such possibility. The appellant maintained
throughout the trial that she did not cause the injuries. Her
subjective state of mind was therefore never an issue. Experience
has
taught that accused persons will not readily admit having acted
intentionally. It also becomes an insurmountable task for the
prosecution to prove the frame of mind of such an accused without the
assistance of inferential reasoning.
[47]
In
S v Sigwahla
1967 (4) SA 566
(A) at 570D Holmes JA
held as follows:
‘
Subjective
foresight, like any other factual issue, may be proved by inference.
To constitute proof beyond reasonable doubt the
inference must be the
only one which can reasonably be drawn. It cannot be so drawn if
there is a reasonable possibility that subjectively
the accused did
not foresee, even if he ought reasonably to have done so, and even if
he probably did do so.’
[48]
In deciding by way of inference what an accused thought or foresaw to
infer intention, a court considers objective factors
to come to a
conclusion whether the accused subjectively foresaw the prohibited
result. These factors are however merely aids employed
in answering
the ultimate question, namely whether the accused subjectively
foresaw the possibility of the prohibited consequence
and whether he
reconciled himself to that possibility. They are not aimed at
replacing the subjective test with an objective one.
(See
CR
Snyman
at page 186 and
S v Humphreys
2013 (2)
SACR 1
at para 13).
[49]
In applying inferential reasoning, it can be reasoned that in
particular circumstances the accused
'ought to have foreseen'
the
consequences and thus
'must have foreseen'
and therefore, by
inference,
'did foresee'
them. As was stated in
Director
of Public Prosecutions, Gauteng v Pistorius
2016 (2) SA 317
(SCA) at paragraph 40:
‘
All of this was
circumstantial evidence crucial to a decision on whether the accused,
at the time he fired the fatal four shots,
must have foreseen, and
therefore did foresee, the potentially fatal consequences of his
action’.
[50]
What was said in
Humphreys
sums up the approach a court
should follow:
‘
On the other hand,
like any other fact, subjective foresight can be proved by inference.
Moreover, common sense dictates that the
process of inferential
reasoning may start out from the premise that, in accordance with
common human experience, the possibility
of the consequences that
ensued would have been obvious to any person of normal intelligence.
The next logical step would
then be to ask whether, in the light of
all the facts and circumstances of this case, there is any reason to
think that the appellant
would not have shared this foresight,
derived from common human experience, with other members of the
general population’.
[51]
I am alive to the fact that for the first component of
dolus
eventualis,
it is not enough that the appellant should
(objectively) have foreseen the possibility of injury to the
child because the
fictitious reasonable person in her position would
have foreseen that consequence. That would constitute negligence and
not
dolus
in any form. I am likewise alive to the flawed
process of deductive reasoning that, because the appellant should
have foreseen the
consequences, it can be concluded that he did. That
would conflate the different tests for
dolus
and negligence.
See
Humpreys
supra at para 13.
[52]
I also find what was said in
S v Beukes en 'n Ander
1988
(1) SA 511
(A) at 522C as instructive:
‘
Daar is, sover ek
kon nagaan, geen gewysde waarin pertinent beslis is dat 'n
dader 'n gevolg voorsien het maar nie onverskillig
teenoor die
intrede daarvan gestaan het nie. Die rede is voor die hand liggend.
Die kanse dat 'n beskuldigde sal erken, of
dit uit ander direkte
getuienis sal blyk, dat hy inderdaad 'n verwyderde gevolg voorsien
het, is bitter skraal. 'n
Hof maak dus 'n afleiding
aangaande 'n beskuldigde se gemoed uit die feite wat daarop dui dat
dit, objektief gesien, redelik moontlik
was dat die gevolg sou
intree. Indien so 'n moontlikheid nie bestaan nie, word eenvoudig
aanvaar dat die dader nie die gevolg in
sy bewussyn opgeneem
het nie. Indien wel, word in die reël uit die blote feit dat hy
handelend opgetree het, afgelei
dat hy die gevolg op die koop toe
geneem het’.
[53]
The above principles should be applied to the facts I found to have
been proven. The question is whether the appellant, having
directed
her will towards cleaning the child, did foresee that if she cleans
the child, there is a possibility that the child might
be burned by
the water. In addition, if she did foresee the possibility, whether
she did not allow herself to be deterred
by such foreseen
possibility, and proceeded with her original plan to wash the child,
indifferent as to whether the child may be
burnt.
[54]
It has been established earlier in this judgment that the water
temperature from the hot water tap was extremely high. The
appellant
did not dispute the principal’s evidence in this regard. This
tap was situated in the appellant’s class.
Had she not been
aware of the hot water temperature in her class, she would have
indicated likewise in cross examination. She failed
to dispute this
under cross examination. She ought to have been aware and was thus
aware of the extreme high water temperature.
[55]
She however testified that the water was not too hot for the child to
wash in and with her experience as a mother and grandmother,
she
would never use hot water to wash a child. The fact however remains,
based on the evidence of the doctor, hot water caused
the injuries to
the child.
[56]
It boggles the mind how she could have spilled water on the child and
dipped his buttocks into the basin containing hot water
and yet not
have realised that the water temperature was too high. Her version
that the water was lukewarm can therefore be safely
rejected. I am
satisfied that the only reasonable inference to be drawn is that she
was aware of the high water temperature.
[57]
As indicated earlier, OS had soiled himself. His body and clothes
were soiled such that he had to be undressed and his clothes
washed.
Logic dictates that the dirt from his body was removed with the hot
water which ultimately caused the wounds.
[58]
As was indicated in
Humpreys
, in accordance with common
human experience, the possibility of OS sustaining burn wounds would
have been obvious to any person
of normal intelligence. In light of
all the facts and circumstances of this case, there is no reason to
think that the appellant
would not have shared this foresight,
derived from common human experience, with other members of the
general population.
[59]
The burns on the genitals and the buttocks were caused when OS was
placed in the hand basin and exposed to hot water. These
burns were
the result of a reasonable long exposure to hot water since they were
in the skin folds. The appellant was clearly indifferent
to the
possibility that the hot water will injure OS. The appellant’s
indifference is further portrayed by the fact that
she had to be
ordered to stop by the principal from wiping the burnt areas on OS as
she was hurting him. This, on itself was indicative
of her intention.
She was aware of the burns but proceeded to apply pressure on them.
[60]
As was stated in
Beukes
at 522C, ‘a court draws
an inference concerning an accused's state of mind from the facts
which point to it being reasonably
possible, objectively seen, that
the consequence would eventuate. If such a possibility exists, it is
simply accepted that the
actor
did become conscious of the
consequence and it is usually inferred from the mere fact of his
taking action that he took the consequence
into account. It therefore
appears that the second element is normally satisfied if the
actor
foresaw, as a reasonable possibility, the consequence
eventuating’.
[61]
Counsel for the State and the legal representative for the appellant,
in my view, conflated the test of what is required to
establish
dolus
directus
with the assessment of
dolus eventualis
. The
issue was not whether the appellant had as her direct objective to
cause the injuries that OS sustained. What was required
in
considering the presence or absence of
dolus eventualis
was
whether he had foreseen the possible injuries ensuing and reconciled
herself with that event.
[62]
I am satisfied that the commission of the unlawful act or the causing
of the unlawful result, which was in this case the injuries
to OS,
was not the appellant’s main aim, but she subjectively foresaw
the possibility of such result. She, in my view, reconciled
herself
to this possibility by washing OS with hot water. I am satisfied that
she had the requisite intention in the form of
dolus eventualis
to
impair the bodily integrity of OS.
[63]
The next question is whether she had the requisite intention to cause
OS grievous bodily harm. Whether she in fact had the
intent to do
grievous bodily harm is a factual question. There are in my view no
facts to indicate an intention to do grievous
bodily harm. The degree
of violence and the nature of the injuries inflicted, in my view, do
not warrant an inference that she
had the requisite intention to do
grievous bodily harm. The medical evidence suggested that the burns
were superficial. These are
therefore the least serious type of burn
wounds. Dr Brits further indicated that OS would have sustained
blisters had the water
reached boiling point. This was admittedly not
the case.
[64]
I am of the view that a conviction on assault with intent to grievous
bodily harm cannot be sustained and that a verdict of
common assault
should have been pronounced by the regional magistrate. In the result
the appeal succeeds to the extent that the
conviction of assault with
intent to grievous bodily harm is set aside and replaced with a
conviction of common assault. The sentence
that was imposed by the
regional magistrate will as a result also have to be set aside.
[65]
I will in the result make the following order:
1. The conviction of
assault with intent to grievous bodily harm is set aside and replaced
with a conviction of common assault;
2. The sentence of five
years imprisonment in terms of
section 276(1)(i)
of the
Criminal
Procedure Act 51 of 1977
is set aside and is replaced with a sentence
of 12 months imprisonment, wholly suspended for a period of three
years on condition
that the accused is not convicted of assault, for
which a term of imprisonment without the option of a fine is imposed,
committed
during the period of suspension.
________________
L.B.J. MOENG, AJ
I
concur.
_________________
M. OPPERMAN, J
On
behalf of the appellant: JD Reinecke
Bloemfontein
Justice Centre BLOEMFONTEIN
On
behalf of the respondent: M Strauss
Director
of Public Prosecutions: Free State BLOEMFONTEIN.