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2024
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[2024] ZAECQBHC 43
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S v Mabhulu (CA&R106/2024) [2024] ZAECQBHC 43 (25 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
CASE
NO: CA&R106/2024
Date
of delivery: 25 June 2024
In
the matter between:
THE
STATE
and
ATHULE
MABHULU
REVIEW
JUDGMENT
Bloem
J
[1]
The accused was charged in the magistrate’s court, East London
with assault with intent to do grievous bodily harm.
The state
alleged that on 28 August 2023 and at East London, he “
did
unlawfully and intentionally assault [LM] by hitting her with fists
with the intent to causing her bodily harm
”. The accused
pleaded guilty to the charge. His legal representative handed a
written statement by the accused into court.
In that statement the
accused set out the facts which he admitted and on which he pleaded
guilty. The magistrate was satisfied
that the accused was guilty of
the offence to which he pleaded guilty and convicted him of assault
with intent to do grievous bodily
harm. He was sentenced to pay a
fine of R3 000 alternatively undergo imprisonment for 3 (three)
months. The sentence
was wholly suspended for 5 (five) years on
condition that he not be convicted of assault with intent to do
grievous bodily harm
committed during the period of suspension.
[2]
After the imposition of the above sentence, a senior magistrate,
while performing judicial quality assurance inspection
at the East
London Magistrate’s Court, noted that the accused might not
have admitted all the elements of the offence of
assault with intent
to do grievous bodily harm. The magistrate perused the record and
realised that the senior magistrate was correct.
The magistrate sent
the matter on special review to this court.
[3]
Assault
with the intent to do grievous bodily harm includes all the essential
elements for the offence of common assault. However,
there is an
additional element, namely that there must be an intent on the part
of the accused to do grievous bodily harm. Assault
consists in
unlawfully and intentionally applying force to the person of another
or threatening that person with immediate personal
violence in
circumstances which lead that person to believe that the person who
made the threat intents and has the power to carry
out the threat. To
secure a conviction of assault with intent to do grievous bodily
harm, the state must prove, in addition, that
the person who applies
force or threatens to do so had the intent to do grievous bodily
harm. The offence of assault with the intent
to do grievous bodily
harm cannot be committed if it is not proved or admitted that the
accused had the intent to do grievous bodily
harm. The accused might,
depending on the facts, be convicted of common assault under those
circumstances.
[1]
Whether an
accused had the intention to commit grievous bodily harm depends on
the facts of each case. Factors to be taken into
account when
determining whether the accused intended to do grievous bodily harm
include the weapon or instrument that the accused
used; the degree of
force that the accused used; the part of the body at which the attack
was directed; and the injuries actually
sustained by the victim.
[2]
[4]
In the present case the accused admitted to having assaulted the
complainant “
by hitting her with a fist on her forehead,
causing her bodily harm
”. The accused alleged that the
complainant had accused him during the previous evening of having
stolen a phone. He went
to confront her at her home early the
following morning. They exchanged words during which the complainant
swore at him. He lost
his temper and “
assaulted her with a
fist on her forehead
”.
[5]
The above facts do not show that the accused threatened to apply
force to the complainant. The accused’s intention
to do
grievous bodily harm must accordingly be determined on the basis of
his conduct. He used a fist on the complainant’s
forehead.
There are no facts to indicate the degree of force that the accused
used when he hit the complainant on her forehead.
The bodily harm
that the complainant sustained was not described. On the contrary,
the facts do not show that the complainant sustained
an injury.
Regard being had to the above factors, it cannot be said that the
accused committed assault with intent to do grievous
bodily harm.
That conviction must accordingly be set aside and replaced with a
conviction on the competent verdict of common assault.
[6]
The sentence imposed by the magistrate was in respect of a conviction
of assault with intent to do grievous bodily harm.
The accused
should, on the facts admitted by him, have been convicted of common
assault. The sentence is disproportionate to a
conviction of common
assault in the light of the facts admitted by the accused. Since all
the facts relevant to the imposition
of an appropriate sentence are
on record, it will serve no purpose to remit the matter to the
magistrate to impose a sentence after
the conviction of common
assault.
[7]
The accused
was born during October 1999, left school during grade 12, has been
permanently employed by the same employer as a driver
since he left
school, has no children and has no previous convictions. It is of
concern that he committed a violent crime against
a woman. He
apologised to her immediately after assaulting her and pleaded
guilty. The accused will in all probability not make
himself guilty
of the same offence. The sentence must nevertheless be such that he
should be reminded of the consequences which
might follow if he were
to be repeat such offence.
[3]
[8]
In the circumstances, an appropriate sentence that would do justice
to the personal circumstances of the accused; the
nature of the
offence and the circumstances under which it was committed; and the
interests of society would be a fine of R1 000
or, in default,
three months’ imprisonment.
[9]
In the result, it is ordered that:
1. The conviction
and sentence are set aside and replaced with the following:
“
1. The
accused is found guilty of common assault.
2. The accused is
sentenced to a fine of R1 000 or, in default of payment, three
months’ imprisonment.
3. The sentence is
wholly suspended for three years on condition that the accused is not
convicted of common assault committed
during the period of
suspension.”
2. The sentence is
antedated to 8 April 2024.
GH
BLOEM
Judge
of the High Court
Hartle
J.
I
agree.
B
HARTLE
Judge
of the High Court
[1]
Section
266(
a
)
of the
Criminal Procedure Act 51 of 1977
provides that if the
evidence on the charge of assault with intent to do grievous bodily
harm does not prove the offence of assault
with intent to do
grievous bodily harm, but the offence of common assault, the accused
may be found guilty of common assault.
[2]
S
v Zwezwe
2006
(2) SACR 599
(N) at 603b-c.
[3]
S
v R
1998
(1) SACR 166
(W) at 171e-f.