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[2012] ZAFSHC 243
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S v Borotho (336/2012) [2012] ZAFSHC 243 (20 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 336/2012
THE STATE
versus
THEKISO VINCENT
BOROTHO
_____________________________________________________
CORAM:
RAMPAI, J
et
VAN ZYL, J
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
20 DECEMBER 2012
_____________________________________________________
[1] The accused, Mr
Thekiso Wessels Borotho, a 39 year old male from Snake Park in the
Kroonstad district, was convicted and sentenced
by the Kroonstad
district court on a charge of assault with intent to do grievous
bodily harm under case number A1152/12. The accused
was sentenced to
a fine of R1000 or 4 months imprisonment wholly suspended for 5 years
on condition that the accused is not convicted
of assault with intent
to do grievous bodily harm committed during the period of suspension.
The accused was not declared unfit
to posses a fire-arm.
[2] The accused elected
to conduct his own defence and the matter was subsequently sent to
this court as an automatic review in
terms of
section 302
of the
Criminal Procedure Act, 51 of 1977
. After reading the record, the
matter was returned to the magistrate with the following query:
“
1. Was there
sufficient evidence tendered to convict the accused as charged or
not?
2. If not, what was
a competent verdict? If there was, what was such evidence?”
[3] The magistrate
responded and gave the following reasons in support of her finding
that the accused is indeed guilty as charged:
firstly that she
thoroughly considered both the evidence led by the state as well as
the accused; secondly, that the accused did
not deny assaulting the
complainant although he alleged that he was acting in self-defence
because the complainant insulted him,
the defence cannot stand as it
does not satisfy the requirements for self-defence, and lastly that
the J88 report, submitted by
the state, confirmed the injuries
sustained by the complainant.
[4] It is now the duty of
this court to determine whether the conviction and sentence of the
accused were indeed in accordance with
the law.
[5] 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
21
st
May 2012 the accused re-confirmed his earlier
decision to conduct his own defence.
[6] The annexure to the
charge sheet reads as follows:
“
IN THAT upon
or about 22/03/2012 and at or near Fedility guard (sic) offices, in
the district of Kroonstad, the accused did unlawfully
and
intentionally assault Johannes Phonoshe by hitting the complainant
with fists with the intent of causing him grievous bodily
harm.”
[7] 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 and that
he would conduct his own defence.
[8] The accused pleaded
not guilty to the charge and the magistrate explained to him that he
may disclose the basis of his defence
and that he could also remain
silent. The accused indicated that he would like to explain his
defence. However the accused never
gave a plea explanation and the
state proceeded to call its first and only witness.
[9] The complainant
testified that the he knew the accused as they were working for the
same security company. On the day in question
the complainant and
some of his colleagues went to fetch the accused from where he was
posted. He further testified that when they
got to the accused, the
accused just simply charged at him and started hitting him with
fists. However he stated that he did not
even know from which
direction the blows were coming. He felt some fists hitting him in
the face. Their colleagues intervened and
separated them.
[10] The complainant went
on to testify that he suffered serious injuries and that he went to
see a doctor. The state handed in
the J88 report without any
objection by the accused. The J88 indicated that the complainant had
swelling on his right cheekbone
area (“zygomatiese area”)
and that it was sensitive to pressure (“drukteerheid”).
[11] The complainant
denied that he was fighting with the accused. He thought or suspected
that the accused assaulted him because
the accused claimed that he,
the complainant, had insulted him. The accused also reminded the
complainant of an incident that took
place more than a year earlier.
The accused was almost dismissed from his employment. He believed
that the complainant was behind
that incident.
[12] It is apposite to
remember that the accused was conducting his own defence. During
cross-examination the accused put it to
the complainant that he
insulted the accused over the phone. When they met the accused
confronted the complainant about the insults.
The complainant denied
that the accused verbally confronted him first. He answered that the
accused stealthily attacked and punched
him. He did not even know
where the blows came from. The accused again made reference to the
incident that took place about a year
and a half earlier. The accused
suggested that the complainant had deliberately issued him with a
rifle which was not fully loaded,
on that occasion. On account of the
missing bullets the accused nearly lost his employment. The
complainant said that he was not
on duty on that day and that he
thought the matter was long settled. That was then the
cross-examination by the accused and the
state closed its case.
[13] The court proceeded
to explain to the accused his rights with regards to: calling
witnesses; giving unsworn evidence from the
dock; giving evidence
under oath; and remaining silent. The court also warned him of the
consequences of not giving evidence. The
accused elected to testify
under oath.
[14] The accused
testified that he was busy talking to one of his colleagues, a
certain Mr Nkokoane, when the complainant came and
started to insult
him. He further testified that the complainant grabbed him, hit him
on the chest with the forehead and that such
actions caused him to
hit back at the complainant. This version was not put to the
complainant and the complainant therefore could
not have responded to
it. The accused testified during cross-examination by the state that
he was not sure as to precisely where
the blows he threw actually hit
the complainant, because there were people standing between them.
This was in short the evidence
given by the accused. The defence then
closed its case.
[15] 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 intention to cause the
victim grievous bodily harm. If the court is not satisfied that the
specific criminal intent
was present, the court may, however, still
convict the accused of common assault as a competent verdict to the
charge.
[16] 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 number 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.”
[17] If the aforesaid two
paragraphs are applied to the present case, can it be said that the
accused assaulted the complainant
and also that he had the required
intent? The state did indeed submit a J88 report which indicated that
the complainant, on the
day in question, sustained an injury
(swelling) to his head (face). From the record it is not clear how
severe the swelling was,
what treatment, if any, the complainant
would have received or how long the swelling lasted. When asked by
the prosecutor where
he hit the complainant, the accused responded to
say that there were people in front of him and that, on account of
his obstruction,
he was not sure whether or not he hit the
complainant in the face. He wildly threw punches in the direction of
the victim. The
version of the victim tended to give credence to the
version of the accused. No dangerous weapon was used and no serious
injury
was sustained. This, to me, is indicative of the lack of
intention to cause grievous bodily harm. I therefore cannot conclude
that
the accused did indeed have the necessary criminal intention to
commit the crime with which he was charged.
[18] Right from the onset
of this matter, the accused said that he was acting in self-defence.
As mentioned before, it is important
to remember that the accused
conducted his own defence. There is a duty on the court to be
cautious when accused persons are representing
themselves and also to
assist them in putting their defence across to the state witnesses.
In
casu
the court was unhelpful. Even though only in the
defence case, the accused stuck to his story that the complainant
verbally abused
him, that the victim initiated the aggression and
that he had to repel such unlawful and aggressive acts in order to
defend himself.
[19] The onus of proof
always rests on the state to proof beyond reasonable doubt that the
accused is indeed guilty as charged.
The court may well convict the
accused on the evidence of a single witness, but then it also has to
apply the cautionary rule by
looking for other objective evidence to
support the unsatisfactory evidence of a single witness. In my view,
this objective evidence
could possibly have been provided by Mr
Nkokoane, seemingly a state witness. He, however, was not at court on
the day of the trial
and the state did not request a further
postponement to get the witness to court. The accused also wanted to
call this witness.
The court, through the assistance of the state,
could have assisted the accused in ensuring the presence of the
witness at court,
but it did not.
[20] If the version of
the accused is reasonably possible in the circumstances, he is
entitled to be acquitted of the charges against
him. I am of the
opinion that the accused did indeed take the court into his
confidence by not denying that he did indeed assault
the complainant.
However he asserted that he defensively did so. On the facts, it
cannot be found, beyond reasonable doubt, that
his actions were not
justified. In my view, the version of the accused was also more
probable than that of the victim. I am, therefore,
of the view that
the trial court materially erred in convicting the accused.
[21] Accordingly I have
come to the conclusions that the accused did not have the necessary
intent to cause grievous bodily harm
to the complainant and that the
version of the accused was reasonably possibly true. In the
circumstances of this case, it has
to follow that the state failed to
proof its case beyond reasonable doubt. Therefore, the conviction
cannot stand. It is also therefore
not necessary to deal with the
sentence. The proceedings in the court below were not in accordance
with justice, in my respectful
view.
[22] Accordingly I make
the following order:
22.1. The conviction and
sentence of the accused under Kroonstad case nr A1152/12 are set
aside.
______________
M.H. RAMPAI, J
I concur.
______________
C. VAN ZYL, J
/am