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2004
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[2004] ZAFSHC 90
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S v Seekoie (1368/2004) [2004] ZAFSHC 90 (7 October 2004)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No.: 1368/2004
In the review of:
THE STATE
versus
SEGOMOTSO SEEKOEI
_____________________________________________________
CORAM:
VAN
DER MERWE J
_____________________________________________________
JUDGMENT:
VAN
DER MERWE J
_____________________________________________________
DELIVERED ON:
7
OCTOBER 2004
_____________________________________________________
[1] The accused in this
matter was convicted of assaulting, with the intent to do grievous
bodily harm, his 18 month old son T., by
stabbing him with a sharp
iron rod. On 7 June 2004 the accused was sentenced to a fine of R3
000,00 or 18 months imprisonment of
which R2 000,00 or 12 months
imprisonment was suspended for a period of three years on condition
that the accused is not convicted
of assault committed during the
period of suspension. Reasons for conviction requested on 20 August
2004, reached the office of
the Registrar only on 28 September 2004.
[2] Already in his
statement in terms of
section 115
of the
Criminal Procedure Act, No
51 of 1977
, the accused specifically stated that T. was injured
accidentally and that he did not have the intention to injure. This
then, was
the essential question for determination at the trial.
[3] The wife of the
accused, to whom he had been married for a period of 11 years,
testified on behalf of the State as did two other
witnesses that did
not contribute much to the case. The accused testified in his own
defence. The trial magistrate, correctly in
my view, did not reject
the evidence of the accused. From the judgment at the time as well
as the additional reasons supplied by
the magistrate, it appears that
the accused was convicted on his own evidence.
[4] The accused testified
that on the evening in question, namely 26 December 2003, both his
wife and himself were under the influence
of liquor. His wife was in
possession of a sharpened iron rod and apparently wished to leave the
house in order to join a scuffle
outside down the road. This the
accused did not want her to do. Whilst in their bedroom, they were
struggling over this iron rod
in the sense that the accused tried to
pull it from the hands of his wife who was holding on to it. Whilst
this was going on, T.
was asleep on the bed wrapped in a blanket.
Apparently as a result of a reflex movement when the iron rod was
forcibly freed from
the grip of the accusedâs wife, it connected
with the blanket on the bed. Immediately Thabo started crying. It
was later ascertained
that in the process T. was injured on his back
by the iron rod. Apparently the sharpened iron rod penetrated
through the blanket
and the clothing of T., causing a one centimetre
laceration on his back. This fortunately healed within a week or so.
The wife
of the accused left the house, so the accused handed T. to
an older child and went to sleep as he was under the influence of
liquor.
By that time he did not realise that T. was injured.
[5] It is clear in my
view, as the State prosecutor also accepted in the address on the
merits, that no direct intention to injure
was proved on the part of
the accused. The question therefore is whether the accused had
intent in the form of
dolus eventualis.
It is trite law that
this requires proof thereof that the accused actually did foresee
(not should have foreseen) the possibility
of injury to T. and that
he recklessly continued his actions. On the evidence of the accused
such findings cannot be made beyond
reasonable doubt. The magistrate
seems to have deduced from the alleged conduct of the accused after
the incident, that he had the
necessary intent. In this regard, in
my judgment, the magistrate erred. The subsequent conduct of the
accused must be seen in the
light thereof that he was unaware thereof
that T. had been injured. There is no reason to believe that the
accused was not a loving
father. The evidence in respect of the
relative positions of the accused, his wife and T. at the time, is
also too vague to form
the basis of any finding in this regard.
Although there is much to be said for the view that the accused was
negligent in the sense
that he should have foreseen injury to the
child in the circumstances, that, as I have pointed out, is not the
test that must be
applied.
[6] It must be said that
in my view this conclusion must be reached even on the evidence of
the State. The wife of the accused testified
that the accused was in
possession of the iron rod, that she grabbed it and that when the
accused managed to pull the rod from her
grip, she heard T. crying
and she fled. She does not know, so she testified, how the iron rod
made contact with the child.
[7] In my judgment, it is
at least a reasonable possibility that T. was injured accidentally
and that the accused did not have the
required intention to injure.
It follows that the conviction cannot stand.
[8] The conviction and
sentence are set aside.
________________________
C.H.G.
VAN DER MERWE, J
/sp