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[2012] ZAFSHC 228
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S v Phakoe (337/2012) [2012] ZAFSHC 228 (6 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 337/2012
THE STATE
versus
SEABATA PHAKOE
_____________________________________________________
CORAM:
RAMPAI, J
et
JORDAAN, J
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
6 DECEMBER 2012
_____________________________________________________
[1] This is an automatic
review in terms of
section 302
of the
Criminal Procedure Act, 51 of
1977
. The accused, conducting his own defence, was convicted and
sentenced in the Welkom district court on a charge of assault with
the intent to do grievous bodily harm under case number A3283/2012.
[2] The accused person’s
rights to legal representation were duly explained to him at his
first appearance and he elected
to conduct his own defence. On the
5
th
of September 2012 the accused confirmed that he still
wanted to conduct his own defence. He subsequently pleaded guilty to
the
said charge.
[3] The annexure to the
charge sheet reads as follows:
“
IN THAT upon
or about 25/08/2012 and at or near Bambanani, in the magisterial
district of Welkom, the accused did unlawfully and
intentionally
assault Kgomongwe Motseko Mabokoane by hitting her with a steel (sic)
with the intent of causing him (sic) grievous
bodily harm.”
[4] After the charge was
put to the accused by the public prosecutor, the accused confirmed
that he understood the charge as read
out by the prosecutor. Once
again he confirmed his earlier decision to conduct his own defence.
The court then proceeded to apply
section 112.
[5]
The purpose of
section 112(1)(
b
),
which is particularly relevant in this instance, was recently
re-stated by this court in
S v KHOLOANE
2012 (1)
SACR 8
(FB) at para [5]:
“
The purpose
of the subsection is to ensure that the accused really admits all the
elements of the crime to which he pleads guilty.
The questioning
strives to protect the innocent from erroneous convictions based on
their own ignorance of the law or improper
influence. By compelling
the courts to embark on this procedure the underlying idea was that
the court should make doubly sure
that a person who pleads guilty has
indeed no possible defence to the crime he admits committing. In S v
Baron
1978 (2) SA 510
(C) at 512G the court held that ss (1)(b) was
designed to protect an accused and especially an uneducated and
undefended accused
from the adverse consequences of an ill-informed
plea of guilty.”
[6] As stated above, this
matter came before me as an automatic review. After reading the
record, the matter was returned to the
relevant magistrate, inquiring
from her, whether the accused did indeed admit all the elements of
the charge against him. If the
answer was affirmative, the magistrate
also needed to indicate which specific parts of the record was relied
upon for the finding
that the accused admitted the unlawfulness of
his actions. If the answer was negative, then the magistrate had to
indicate why
section 113
was not applied.
[7] The magistrate
returned the query and responded by stating that she was indeed
satisfied that the accused did admit all the
elements of the offence,
including unlawfulness. She then referred me to the following passage
of the transcribed record, which
I have now highlighted:
“
COURT
:
Mr Phako did you have the intention to assault her?
ACCUSED:
I did not have the
intention but it ended up happening like that.
COURT
: What do you mean when
you say you did not have the intention?
ACCUSED:
I was trying to talk
(sic) for my money Your Worship, but at the end of the day
Your
Worship it is not by law to do so
(sic).
COURT:
Did anybody force you to
hit this lady?
ACCUSED:
It was just my
heart
, Your Worship.”
Vide
lines
11 – 20 on page 3 of the transcribed record.
[8] The magistrate
further responded as follows:
“
I refer the
Honourable Judge to Professor CR Snyman in CRIMINAL LAW, page 95, and
paragraph 2: “Unlawfulness means contrary
to the community’s
perception of justice or equity or the legal convictions of the
community”
I also relied on paragraph 3 of Snyman
which refers to the Bill of Rights as being a point of reference in
which the values of human
dignity and equality is a deciding factor
for determining unlawfulness. I therefore concluded that the
accused’s conduct
was further premeditated by the fact that the
complainant is a prostitute and due to her status he in-dignifies
her,
yet negates the seriousness of his conduct and misdirects
himself by mistaking this for lack of intention and ignorance of the
law
.
I am of the humble opinion that the
very psychological element of culpability is satisfied in that the
accused directed his will
towards taking his anger out on the
complainant”
Vide
p
2 magistrate’s response.
I will return to the
aspect of unlawfulness later.
[9] The magistrate
convicted the accused of assault with the intent to do grievous
bodily harm and sentenced him as follows:
“
R3000 (three
thousand rands) or 6 (six) months imprisonment of which R1500 (one
thousand five hundred rands) or 3 (three) months
imprisonment is
suspended for 3 (three) years on condition that the accused is not
convicted of Assault GBH within the period of
suspension.
In terms of
section 103(2)
Act 60/2000
the court declares the accused still a fit and proper person to
possess a firearm.”
[10] The accused told the
court that on the day of the incident he went to a lady who was
selling her body (prostitute) and they
agreed to have sexual
intercourse. After making the agreement, they went to the accused
person’s house where he asked her
to undress. She obliged and
they indeed had sexual intercourse. When they were done the accused
gave the complainant R20,00 as
that was all that he had, but she did
not want to accept it. She most probably did not want to accept the
money as it was not the
amount which they had agreed upon earlier.
They had an argument and the accused got angry. He took an iron and
hit the complainant.
That then was the evidence on which the
magistrate convicted the accused.
[11] Based on the facts
given in the aforegoing paragraph, can it be said that there was
sufficient evidence to convict the accused
of assault with intent to
do grievous bodily harm?
[12] To convict the
accused of assault with intent to do grievous bodily harm, there are
two questions the court must ask itself:
firstly whether the accused
did indeed assault the victim and secondly, and most importantly for
this specific charge, did the
accused have the intent to cause
grievous bodily harm to the victim. If the court is not satisfied
that the specific intent was
present, the court may however still
convict the accused of common assault as a competent verdict to the
charge.
[13] To determine whether
the necessary intent was present, the court needs to take certain
factors into consideration. These factors
were discussed in a recent,
unreported judgment of this division by Snellenburg, AJ in
S v
MAMOHLALA MOFOKENG
, (and the cases referred thereto) Review
case nr 19/2012, delivered on 18 June 2012, Lekale, J concurring. At
paragraph 26 the
court says the following:
“…
The
distinction between the crime of assault and assault with the
intention to do grievous bodily harm was aptly re-stated in
S
v ZWEZWE
2006 (2) SACR 599
(N) at 603B-D. For the crime of assault with the
intention to cause grievous bodily harm, the offender must have the
necessary
intention to cause the complainant grievous bodily harm.
The enquiry into the existence of such intent requires consideration
of
the following factors:
(a) the nature of the weapon used and
in what manner it was used;
(b) the degree of force used and how
such force was used;
(c) the part of the body aimed at; and
(d) the nature of injury, if any,
which was sustained.
The list is not a
numerus clausus
.
S v MAPASA
1972 (1) SA 524
(E);
S v DIPHOLO
1983 (4) SA 757(T)
at 760E-G.”
[14] In the present case,
the victim did not testify at any stage of the proceedings. No
medical report (J88) was handed in as an
exhibit by the state. Prior
to the conviction of the accused, the court itself also did not
enquire about the injuries the victim
would have suffered. All that
can be determined from the record, prior to the conviction, is that
the accused used an iron to assault
the victim. It is not clear where
he hit the victim, what injuries she sustained, whether she needed to
get medical treatment,
and if so, what treatment she received. The
mere fact that the accused used an iron, to hit the victim, does not
necessarily mean
that he also had the intent required to do her
grievous bodily harm. The court only made these inquiries after
conviction and prior
to sentencing. By then it was too late to redeem
an erroneous conviction.
[15] I am not satisfied
that there was sufficient evidence before the court that the accused
did indeed have the necessary intent
required to be convicted as
charged. He pertinently denied that specific element of the charge
during the judicial questioning
in terms of
section 112.
[16] Returning to the
aspect of unlawfulness, the magistrate in her response, referred me
to two passages of the record (as quoted
in paragraph 7
supra
)
to support her finding that the accused did admit the unlawfulness of
his actions. However, it is clear from the record that the
court was
in fact not satisfied about this aspect:
“
COURT:
Did you know that your actions were wrongful and unlawful and
punishable in law?
ACCUSED
:
I was not aware,
Your Worship.
COURT
: You were not aware; what
do you mean, can you just go around hitting somebody, do you think it
is right and the law wont do anything
to you?
ACCUSED
:
Your Worship, I
believed the law will take its course.
COURT
: So the Court is once
again going to ask you; did you know that your actions were wrongful
and unlawful and punishable in law?
ACCUSED
:
I didn’t
know, Your Worship.
COURT
: Mr Molekoa?
PROSECUTOR
: [No audible answer]
COURT
: You then just told the
Court that people go around doing this kind of thing the law will
take its course, so how can you contradict
yourself, or it just
doesn’t apply to you, it applies to everybody else, but not to
you?
ACCUSED
: Your Worship the main
reason I thought it was just a small thing, I never knew that the
complainant was going to take this further
to court.
COURT:
No, the Court didn’t
ask you whether you knew that the complainant was going to lay a
charge against you. The Court asked
you whether you knew that your
conduct being to assault somebody is unlawful and punishable in law
and wrongful?
ACCUSED
:
No, Your Worship
the conduct would not be right, Your Worship.
”
Vide
line 21 on
page 3 to line 24 on page 4 of the transcribed record.
[17] The court was
clearly not satisfied with the answers that the accused provided to
the court’s questions. Nothing is more
indicative of this, than
when the court addressed the prosecutor, but got no audible response.
The court should then and there
have applied
section 113.
The court
could not have been satisfied that the accused did indeed admit the
unlawfulness of his actions. The further questioning
by the court on
this aspect clearly exceeded the purpose of questioning by the court
in terms of section 112. It also defies the
purpose of
section 112
as
set out in
KHOLOANE
–
supra
.
[19] The aforesaid
exchange between the magistrate and the accused indicates two
important points. The one point was that initially
the accused was
unwilling to admit the element of unlawfulness. The other point was
that the magistrate did not find joy in the
accused’s
unwillingness. I have highlighted certain portions of the exchange.
On two occasions the accused answered that
he did not know that his
actions were wrongful and unlawful. He did not have to repeat that
answer.
[20] The moment he said
that on the very first occasion, the magistrate was obliged, by law,
to put an end to the judicial questioning
in terms of
section 112
, to
note a plea of not guilty in terms of
section 113
and to call upon
the public prosecutor to lead evidence. Instead of following that
fair procedure, the magistrate persistently
carried on quizzing the
accused. She asked five more questions. All those questions were
calculated to elicit an admission of an
element the accused did not
want to admit. By appealing to the magistrate to let the law take its
own course, he was probably asking
that evidence be led to prove, at
least, the element of unlawfulness.
[21] Instead of stopping
the questioning process, the magistrate regrettably continued:
“
So the Court
is once again going to ask you; did you know that your actions were
wrongful and unlawful and punishable in law?”
Yet again the accused’s
answer was:
“
I didn’t
know, Your Worship.”
Again the magistrate did
not leave it at that.
[22] In a somewhat
confrontational kind of manner, she unduly prolonged the questioning
procedure far beyond its purposive bounds
until the accused gave in
and admitted the element of unlawfulness. The accused was lamentably
pressured. It cannot be fairly said
that he freely and without undue
influence admitted all the elements of the crime. Such a plainly
injudicious and excessive questioning
cannot sustain a proper
conviction. The underlying plea was vitiated by material
irregularity.
[23] From the record, the
court also never inquired from the state whether it accepted the plea
as tendered by the accused.
[24] In the circumstances
I am inclined to find that the accused did not freely admit all the
elements of the charge preferred against
him. Therefore the
conviction cannot stand. It is then also not necessary to deal with
the sentence imposed by the court.
[25] Accordingly I make
the following order:
25.1 The conviction and
sentence of the accused under Welkom case nr A3283/2012 are set aside
and any payments made towards the
fine of the accused must be
refunded.
25.2 The matter is
referred back the district court of Welkom for the retrial of the
accused
de novo
before another magistrate.
______________
M.H. RAMPAI, J
I concur and it is
ordered.
_______________
A.F. JORDAAN, J
/am