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[2013] ZAFSHC 151
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S v Masiu (146/2013) [2013] ZAFSHC 151 (15 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 146/2013
In
the review between:
THE
STATE
versus
PHILLIMON
NHLAPO MASIU
_____________________________________________________
CORAM:
LEKALE, J
et
PHALATSI, AJ
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
15 SEPTEMBER 2013
_____________________________________________________
[1] On the 16
th
April 2013 the accused appeared before the Magistrate’s Court
at Bothaville on a charge of assault with intent to cause grievous
bodily harm and was convicted of contravention of section 1 of the
Criminal Law Amendment Act 1 of 1988 (the CLAA) as a competent
verdict. He was, eventually, sentenced to twelve months imprisonment,
which was conditionally suspended and a further eighteen
months of
correctional supervision on the 26
th
April 2013.
[2] The matter,
eventually, came before me on automatic review and I caused a query
to be directed to the trial magistrate to which
he has, gratefully,
since responded,
inter alia
, as follows:
“
2. Was
there evidence before the court that the accused consumed a substance
which impaired his faculties to appreciate the wrongfulness
of his
act or his ability to act in accordance with the appreciation of the
wrongfulness of his act
while
knowing that such substance has that effect
?
…
..
Accused admitted during questioning
by the court in terms of
section 112(1)(b)
of the
Criminal Procedure
Act 51 of 1977
, that he had on that day consumed liquor and on page 3
of the record, when the court asked him if he was drunk on that day
he said
‘I was under the influence’.
Based on this admission by the
accused himself, it was then that the court concluded that since he
admitted being under the influence
of liquor and unable to explain as
to what transpired on the day in question, the substance he had
consumed had impaired his faculties
to appreciate the wrongfulness of
his act or to act in accordance with that appreciation, while knowing
that such substance has
that effect.
When asked if he did stab the
complainant with a bottle, he says ‘we were both drunk and the
last time I checked I was in
possession of dumpies and I am not in a
position to can express further what happened’. This in my view
clearly shows that
he is aware that the substance he had consumed on
the day in question had an effect on his recollection of what
transpired on the
day in question.
3.
Was an enquiry held before a
decision was made in terms of
Section 103
of Act 60 of 2000?
…
..
Since the offence of which the
accused in this instance (sic) is not referred to in Schedule 2 and
is not a crime or offence contemplated
in Schedule 1, I was of the
view that an enquiry to determine whether accused is unfit to possess
a firearm is not a must, and
that accused was not declared unfit to
possess a firearm.
”
[3]
The mental element of the offence created by section 1 of the CLAA
consists in knowledge of the effect of the substance involved
at the
time of its consumption or use. (See
S v MPHUNGATJE
1989 (4) SA 139
(O)
and
S
v Lange
1990 (1) SACR 199
(W) at
205a – c.)
[4] It
is clear from the learned magistrate’s response that the
conviction is based on the accused’s
ex
post facto
knowledge of the effect
which alcohol had on his faculties as opposed to knowledge of such
effect at the time of imbibition of the
alcohol. To this extent
mens
rea
was not established beyond a
reasonable doubt in order to sustain a conviction.
[5] A
guilty finding for the offence in question calls for stipulation, in
the description of the conviction, of what the initial
charge was or
what crime the accused would have been convicted of if he was not
criminally incapacitated by his intake of the relevant
substance. In
the instant matter reference should be made to assault with intent to
cause grievous bodily harm, by way of an insertion,
in brackets,
after the description of the crime of which the accused has been
convicted in terms of CLAA, in order to assist the
court which later
consults the accused’s previous convictions. (See
S
v Oliphant
1989 (4) SA 169
(O) at
171B – C.)
[6] The learned
magistrate’s view that the provisions of section 103 of
Firearms Control Act (the FCA) are not applicable
in the instant
matter is, in my view, not correct. A look at section 103(1)(j) of
FCA shows that a conviction of any offence involving
the abuse of
alcohol or drugs renders the convicted person unfit to possess a
firearm unless the court determines otherwise. In
my judgment and
depending on whether or not the accused is sentenced to a period of
imprisonment without the option of a fine,
reference to assault when
the accused is convicted of contravention of section 1 of CLAA also
throws the offence within the purview
of either section 103(1)(g) or
section 103(2) read with Schedule 2 of CLAA insofar as such an
offence involves violence.
[7] The conviction,
therefore, falls to be set aside as not being in accordance with
justice.
ORDER
[8] The conviction and
sentence are set aside.
_____________
L.J. LEKALE, J
I concur.
_________________
N.W. PHALATSI, AJ
/spieterse