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[2009] ZAGPJHC 10
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S v Sikakane (B/DH3625/08) [2009] ZAGPJHC 10 (14 April 2009)
IN THE
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
Supreme
Court Ref. No: 26/09
Magistrate’s
Serial No: 27/08
Review
Case No: B/DH3625/08
14 April 2009
Magistrate
ROODEPOORT
THE
STATE v ERIC SIKAKANE
REVIEW JUDGMENT
MOSH
IDI
J
.
INTRODUCTION
:
[1] T
his matter was
placed before me on review by the Aspirant Magistrate at Roodepoort.
[2] The grounds for review were articulated by
the Aspirant Magistrate in her covering letter as follows:
“
I
have noted the
following irregularities and note same for the Honourable Judge’s
attention:
That the sentence imposed is incompetent as it
stands. It should have read :-
“Fined R2000.00 or 6 months imprisonment, half of which is
suspended for 5 years on condition that the accused is not again
convicted of assault, committed within the period of suspension;
That I had in
advertently
failed to appraise the accused of his review rights and appeal
rights.”
T
HE
FACTS OF THE MATTER
[3]
Briefly stated, the
facts were as follows: The accused, who elected to conduct his own
defence, was charged in the court below with
the offence of assault
with intention to do grievous bodily harm. This was indeed the charge
put to the accused at the commencement
of the trial.
[4]
Prior to dealing
with the plea of the accused, and what transpired thereafter, it was
essential to point out what follows. The reasons
advanced by the
Aspirant Magistrate for the review are not the only reasons. There
was indeed another reason. This pertained to
the correctness of the
conviction itself. This Court deemed it necessary to deal with the
conviction
mero motu
as discussed below.
[5]
The accused pleaded
guilty to the charge. He was duly questioned by the Learned
Magistrate in terms of the provisions of
section 112
(1) (b) of the
Criminal Procedure Act, No 51 of 1977
. Notwithstanding the fact that
the answers provided by the accused during questioning by the Learned
Magistrate did not amount
to an unequivocal admission of the offence,
(assault with intent to do grievous bodily harm), and the fact that
the state prosecutor
in fact accepted a plea of common assault,
namely, assault with intent to do grievous has the Learned Magistrate
nevertheless proceeded
to convict the accused as charged namely,
assault with intent to do grievous bodily harm. In this regard, the
record read: “The
court is satisfied that you have admitted all
the elements, you are then found guilty as charged on the plea of
guilty” This
finding of Learned Magistrate was clearly
incorrect and therefore incompetent. For the sake of illustration,
the record of the
proceedings page 3 lines 22 – 24, reflected
the accused’s reply to questioning as follows: “So as I
was resting
on the bed again she kept on talking and all that.
This is when I pushed her with my foot
on the thigh. I didn’t actually kick her”.
Further exchange between the Learned
Magistrate and the accused revealed the following:
“
Court
:
and do you admit that you were intentionally assaulting her with the
intent to cause grievous bodily harm?
Accused:
I
wasn’t intending to assault her. I just pushed her off. I was
trying to stop her from talking because I really already
stopped
talking about it she carried on talking” (record page 4, lines
6 – 10)
THE APPLICABLE LAW
[6]
It is trite law
that in principle, there was a clear distinction between common
assault and assault with intention to do grievous
bodily harm. In
respect of the latter, the Learned author, CR Snyman, In “Criminal
Law”4
th
edition at page 435, said “All the requirements for an assault
set out above apply to this crime, but in addition there must
be
intent to do grievous bodily harm….. It is simply the
intention to do such harm that is in question.” The position
was succinctly set out in
S v Dipholo
1983 (4) SA 757
(T) at 760, where the court summarized the situation
as follows: “
On a charge of
assault with intent to do grievous bodily harm, the question arises
whether the state has proved beyond reasonable
doubt that the accused
had the required intent (to do grievous bodily harm). That is a
question of fact which must be decided on
the basis, inter alia, of
the following factors: (a) The nature of the weapon used and in what
manner it was used ; (b) The degree
of forced used and how such force
was used; (c) The part of the body aimed at; and (d) Also the nature
of the injury, if any, which
was sustained”
.In
S v Mbelu 1966 (2) PH. H.176, the Honourable Miller J said: “Now
where the court is confronted with the problem whether
if should draw
the inference that an assault was accompanied by this particular
intent it usually has to rely on four main factors
which provide the
index to the accused’s state of mind. I am not suggesting that
these four factors are exhaustive; I do
suggest that in the large
majority of cases these are the factors which provide a guide to the
accused’s state of mind. They
are, first, the nature of the
weapon or instrument used; secondly, the degree of force used by the
accused in wielding that instrument
or weapon ; thirdly, the
situation on the body where the assault was directed and fourthly the
injuries actually sustained by the
victim of the assault ……”
See also
S v Mdau
2001 (1) SACR 625
(W).
[7]
In the present
matter, and for what may become relevant latter, there was no weapon
or instrument used by the accused. The charge
sheet alleged that he
kicked her. He said he did so kick her on the thigh with his foot.
There was no evidence of a wound. In my
view, the Learned Magistrate
had two options. She could, on the evidence either have convicted the
accused of common assault, as
accepted by the state prosecutor, or
entered a plea of not guilty in terms of
section 113
of the
Criminal
Procedure Act No 51 of 1977
. However, later, after hearing evidence
in mitigation and aggravation, the Learned Magistrate appeared to
realise the error in
the conviction. On page 11lines 11-18 of the
record, the following exchange between the Learned Magistrate and the
prosecutor appeared:
“
Court
:
Before I pass a sentence earlier on the state did ask the court to
find the accused guilty of assault common rather than assault
GBH is
that correct?
Prosecutor:
That’s correct your worship.
Court:
So
I just want to rectify that earlier on I indicated that the accused
has been found guilty however I did not indicate whether
for assault
GBH or for assault common.
THEREFORE
ACCUSED IS FOUND GUILTY OF ASSAULT COMMON
”
The Learned M
agistrate
thereafter proceeded immediately to deliver judgment on sentence. The
second finding of the Learned Magistrate on the
conviction was
undoubtedly in conflict with the earlier finding. The earlier
finding, as stated above, was unequivocally a guilty
finding as
charged (assault with intent to do grievous bodily harm). The record
therefore revealed two conflicting verdicts. This
was clearly
irregular,
THE VIEW OF THE DIRECTOR PUBLIC PROSECUTION
S
[8] As was the practice in this Division, I had
earlier referred the matter to the Director of Public Prosecutions
(South Gauteng
High Court) for their comment. See in this regard S v
Hlungwane
2000 (2) SACR 422
(T),at page 426 g-j. The response of the
Director of Public Prosecutions, through advocates K.R Mathenjwa and
M. Mophatlane, was
not only rather prompt, but also invaluable, for
which I was grateful. They were of the view, firstly, that the
conviction was
not in accordance with law, as the questioning of the
Learned Magistrate proved the offence of common assault. In regard to
the
appropriate sentences, the Director of Public Prosecutions was of
the view that this court was of liberty to consider a competent
sentence for domestic related common assault. I remained greatly
indebted to the Director of Public Prosecutions. I was also in
complete agreement with their comments. The conviction ought properly
be altered to that of common assault as reflected below.
THE ISSUES REFERRED FOR REVIEW:
[9]
The Aspirant
Magistrate’s request for the review of the sentence she imposed
as irregular was less problematic. There was
in essence a slight
difference in the wording of the sentence imposed and that which the
Aspirant Magistrate intended to impose.
The sentence imposed read:
“Fined to R2000.00 or six months imprisonment half of which is
suspended for five (5) years on
condition that accused is not
convicted of assault or attempted assault committed during the period
of suspension.
Section 103
of Act 2000 accused still fit to posses a
firearm” The Aspirant Magistrate on review proposed the
following:
“
Fined R2000.00 or 6 months imprisonment,
half of which is suspended for 5 years on condition that the accused
is not again convicted
of assault, committed within the period of
suspension”. The complainant
testified for the state in aggravation of sentence. She was married
to the accused. They stayed
together. The reason that led to the
incident was the complainant’s disapproval of the accused
staying away from home over
weekends during which the complainant
heard that he was in the accompany of young females at a public
place. The complainant, a
nursing sister, had confronted the accused
about these allegations.
[10] The personal circumstances of the accused revealed that, at 36
years of age, he had a clean criminal record. The union between
him
and the complainant bore two minor children. The accused was employed
as a technician at a company called Spectrum Holdings.
He earned a
gross salary of R21000.00 (twenty one thousand rand). He showed
remorse by pleading guilty. He told the Aspirant Magistrate
that he
will never repeat the conduct. The record of the proceedings
suggested that the Aspirant Magistrate sentenced the accused
on the
basis of a conviction of common assault, and not assault with the
intention to commit serious bodily harm. This was also
apparent from
the state prosecutor’s address before sentence. As stated
earlier, the Aspirant Magistrate confirmed later,
that the conviction
was one of common assault. In the light of the above factors, this
Court on review, was of the view that the
sentence imposed was just
and equitable save for the conditions attached thereto. This will be
altered as contained in the order
below. The conditions were rather
too wide. See S v Benn; S v Jordaan; S v Gabriels
2004 (2) SACR 156
(c)
[11] The final issue that required attention was the Aspirant
Magistrate’s admitted omission at the end of the trial to
inform the unrepresented accused of both his review and appeal
rights. These matters were not addressed by Director of Public
Prosecutions in their comments.
[12] As the sentence imposed was clearly reviewable, the Aspirant
Magistrate was indeed obliged to inform the accused of such
review
procedure as provided for by Sections 302 and 303 of
Criminal
Procedure Act No 51 of 1977
. In terms of the latter
Act,
the
accused was also entitled to be informed of the right to appeal
against both the conviction and sentence imposed. Further more,
section 35 (3) (o) of the Constitution (Act 108 of 1996) provides as
follows:
“Every accused person has a right to a fair trial, which
includes the right – of appeal to , or review by, a higher
court” The omission to inform the accused, especially an
unrepresented accused, can and indeed does, in most cases, lead
to
serious miscarriage of justice. However, in the instant matter,
having regard to the particular circumstances as sketched above,
this
Court was of the view that the omission did not in any way cause
prejudice to the accused. He pleaded guilty. He showed remorse.
I was
advised by the Senior Magistrate at Roodepoort recently that the
accused had infact already paid the fine and was not in
custody.
Further more, the matter was in any event subsequently forwarded to
this Court on review. The fine imposed was in my view
not excessive
or unreasonable in the circumstances, especially in the light of the
prevalence of domestic related violence sometimes
with fatal
consequences. It may well be a good practice for clerks of the courts
to in any event, forward to the High Court reviewable
matters where
inexperienced or trainee magistrates, such as in the instant matter,
were involved in cases.
THE ORDER ON REVIEW
[13] In the result, I make the following order:
The conviction is altered to one of guilty of common assault.
The accused is sentenced to a fine of R2000.00 (two thousand rand)
or six months imprisonment, half of which sentence is suspended
for
a period of five (5) years on condition that the accused is not
convicted of assault, committed during the period of suspension;
In terms of the provisions of
section 103
of the
Firearms Control
Act, 60 of 2000
, there will be no declaration of unfitness to
possess a fire-arm in regard to the accused.
_________________________
DSS
MOSHIDI
JUDGE OF THE SOUTH GAUTENG HIGH COURT, JHB
I agree:
_________________________
N PANDYA
ACTING JUDGE OF THE SOUTH GAUTENG HIGH COURT, JHB