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[2011] ZAFSHC 40
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S v Nonzima and Another (554/2010) [2011] ZAFSHC 40 (3 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 554/2010
In
the special review between:-
THE STATE
and
GEELBOOI NONZIMA
…........................................................
First
Accused
GILBERT MOTAUNG
…....................................................
Second
Accused
_______________________________________________________
CORAM:
EBRAHIM, J
et
LEKALE, AJ
_______________________________________________________
JUDGMENT
BY:
LEKALE, AJ
_______________________________________________________
DELIVERED
ON:
3 MARCH 2011
_______________________________________________________
[1] The two accused
persons appeared before the Regional Court at Wesselsbron on the 2
nd
June 2010 for sentencing in terms of
section 116
of the
Criminal
Procedure Act, No. 51 of 1977
, as amended (“the Act”)
after they were convicted by the Wesselsbron District Magistrate’s
Court on the 12
th
April 2010.
[2] The charge sheet
viz
J15 reflects that accused number 1 was found guilty of robbery as
charge number 1 and assault with intent to cause grievous bodily
harm
as charge number 2, while accused number 2 was only found guilty of
robbery.
[3] Accused number 1
challenged the correctness of the verdict recorded against him. After
hearing evidence on the issue the Regional
Magistrate was left in
doubt as to the correctness of the recorded verdict and sought
clarification from the trial magistrate who
responded that the
verdicts are correctly recorded. He, further, explained that he
inferred that accused number 1 had the intention
to cause grievous
bodily harm from the fact that the complainant was kicked.
[4] The Regional
Magistrate, thereafter, invoked the provisions of
section 304A
of the
Act and referred the matter to this Court for the setting aside of
the proceedings before the District Court and remarked
that:
“
Dit blyk
ook uit die notule van die distrikshof dat klaagster slegs een skop
toegedien was en geen beserings opgedoen het nie...”
“
Dit blyk
ook uit die klagstaat, dat die klagstaat van die distrikshof verkeerd
is. Die klagstaat openbaar roof gewoon. Die bepalings
van Artikel 51
Wet 105 van 1997 is nie van toepassing nie, soos in klagstaat
aangetoon word nie.”
[5] My brother Cillié
J, before whom the matter initially served, directed a request to the
trial magistrate for,
inter alia
, the reasons why accused
number 1 was also found guilty of robbery.
[6] The trial magistrate
has since obliged, for which the court is grateful to him, and relies
on the doctrine of common purpose
for finding accused number 1 guilty
of robbery as follows:
“
... die
twee beskuldigdes saam was voor die pleging van die misdryf en
deurdat beskuldigde no 1 ‘n persoon saam met klaer
aanrand en
daardeur die misdryf bevorder en daarna steeds saam [met] beskuldigde
no 2 rondbeweeg (en daardeur h[o]mself vereenselwig
met die misdryf)
totdat beide beskuldigdes saam arresteer word sien
S
v Mgedezi
1989 (1) SA 687
(A).”
[7] In conclusion the
learned trial magistrate requests the court to either confirm the
verdicts or return competent verdicts in
respect of the accused and
to remit the matter to him for sentencing.
[8] The record is clear
on the charges on which the two accused were each found guilty.
[9] The questions for
determination are whether or not:
9.1 accused number 1 was
correctly found guilty of assault with intent to cause grievous
bodily harm regard being had to the fact
that the complainant was
kicked only once and sustained no injuries;
9.2 the provisions of
section 51
of Act No. 105 of 1977 (the Minimum Sentences Act) are
applicable regard being had to the fact that the charge sheet,
although
it refers to the said Act, does not allege the presence of
aggravating circumstances on the occasion when the robbery was
committed.
[10]
It is trite that for a verdict of guilty to return on a charge of
assault with intent to do grievous bodily harm it is not
necessary
that the accused should have actually caused bodily harm. What the
State has to prove is that the accused intended to
cause such harm.
(See
R v ZONDI
1930
TPD 107.)
[11]
The trial magistrate drew the inference that accused number 1
intended to injure the complainant “really seriously”
from the fact that he kicked her. The force used in executing the
kick as well as the kind of shoes, if any, which accused number
1 had
on when he kicked the complainant are not apparent
ex
facie
the record. (Compare
S
v DIPHOLO
1983 (4) SA 757
(T) at
760.)
[12]
The courts are loath to draw lightly an inference that the accused
not only intended to injure his victim but intended to injure
her
seriously. (See
S v MGCINENI
1993 (1) SACR 746
(E).)
[13]
In casu
there
exists, in my view, insufficient, if any, indication that accused
number 1 intended to cause the complainant grievous bodily
harm. In
the circumstances of this matter such an inference can only be drawn
on the basis of conjecture and speculation on the
part of the court.
[14]
As correctly pointed out by the Regional Magistrate the charge sheet
discloses robbery simpliciter as opposed to robbery with
aggravating
circumstances. In this regard it should be noted that only a bald
reference to the
Criminal Law Amendment Act, 105 of 1997
, is made in
the charge sheet without alleging the presence of and specifying
aggravating circumstances which make the minimum sentence
provisions
contained in that Act applicable. (Compare
R v ZONELE
AND OTHERS
1959 (3) SA 319
(A)
at 323.)
[15]
At the commencement of a trial an unrepresented accused person must
be informed of the minimum sentence, if applicable, so
as to ensure
that he gets a fair trial in the sense that he knows the full thrust
of the case that he has to meet.
(See
S v NDLOVU AND
ANOTHER
1999 (2) SACR 645
(W) at 649 f – 650 b and
S
v LEGOA
2003 (1) SACR 13
(SCA) at paras [20] – [22].)
[16] The record reflects
that the public prosecutor put the charges to the accused, who were
unrepresented and notes that they understood
the same and pleaded not
guilty. There is no indication on the record that the trial
magistrate, at the very least, explained to
them what the
Criminal
Law Amendment Act, 105 of 1997
, meant in the context of their case.
In the court’s view a mere allegation in the charge sheet that
“
the
accused are guilty of the crime robbery (read with the provisions of
section 51(2)
,
52
(2),
52A
and
52B
of the
Criminal Law Amendment Act
105 of 1997
)”
is a riddle to an
unrepresented accused person who is not familiar with the relevant
provisions. It is for the trial court to give
those provisions
meaning in order to convey their full import to such an accused
person. There is no indication on the record that
the accused are
familiar with the relevant provisions. The trial magistrate, should,
as such, have given life to the relevant provisions
so as to ensure
that the accused get a fair trial.
[17] The court is,
therefore, of the view that, as correctly and effectively opined by
the Regional Magistrate, it would not be
fair to apply the provisions
of the
Criminal Law Amendment Act
in
casu
. There exists thus
no cause for the matter to be referred to the Regional Court for
sentencing.
[18] The court is,
further, in respectful agreement with the trial magistrate on the
applicability of the doctrine of common purpose
to the robbery
charge. Accused number 1 clearly associated himself with the acts of
accused number 2 and furthered the commission
of robbery.
[19] The court is thus
satisfied that the evidence before the trial magistrate proved
robbery against both accused persons and common
assault against
accused number 1 beyond reasonable doubt.
ORDER:
[20] The convictions of
both accused number 1 and number 2 in respect of charge 1
viz
robbery are accordingly confirmed.
[21] The conviction of
accused number 1 on charge 2
viz
assault with intent to do
grievous bodily harm is hereby set aside and in its place and stead
is substituted the following order:
“
Accused
number 1 is also found guilty of common assault in terms of
section
266(a)
of the
Criminal Procedure Act, No. 51 of 1977
, as amended.”
[22] The matter is
remitted to the trial magistrate (District Court) for the
commencement of sentence proceedings.
______________
L.J. LEKALE, AJ
I concur.
_____________
S. EBRAHIM, J
/sp