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[2024] ZAKZPHC 64
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Rahim v S (C875/2021) [2024] ZAKZPHC 64; 2025 (2) SACR 328 (KZP) (14 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
CRIMINAL – De minimis non
curat lex –
Assault
GBH
– Appellant threw
packet of groceries at father-in-law – Sustained swelling to
ankle – Background of acrimonious
divorce proceedings –
Assault was of such trivial nature to warrant court ignoring it
altogether – Evidence of
intent also discussed –
Assault GBH or common assault not proved beyond reasonable doubt –
Appeal upheld and
the conviction and sentence are set aside.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL, PIETERMARITZBURG
AR
NO.:323/23
CASE
NO.: C875/2021
HEARD
AT DURBAN, ON THIS
1
ST
7
TH
JUNE 2024
BEFORE
THE HONOURABLE MR ACTING JUSTICE VOORMOLEN THE HONORABLE MADAM ACTING
JUSTIZE Z PLOOS VAN AMSTEL
In
the matter of :
SADIA
RAHIM
APELLANT
and
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand down is deemed to be 12h00 on 14 August 2024.
ORDER
[1]
The appeal succeeds;
[2]
The conviction and sentence are set aside.
JUDGMENT
PLOOS VAN AMSTEL AJ
(VOORMOLEN AJ concurring)
Delivered on:
14
August 2024
[1]
The appellant in this matter was found guilty by a district
magistrate of assault with intent
to do grievous bodily harm, and
sentenced to a R5000,00 fine or in default thereof, to undergo five
months imprisonment, wholly
suspended for a period of five years on
condition that the appellant is not convicted of assault with intent
to do grievous bodily
harm during the period of suspension. The
present is an appeal against her conviction.
[2]
The
basis of the charge was an incident
which occurred on 24 December 2019, during which F[...] M[...] S[...]
G[...], who I shall refer
to as “the complainant”,
sustained an injury in the form of swelling to his right ankle.
[3]
The undisputed evidence was that appellant lived in a garden cottage
of sorts, adjacent to the
complainant’s residence. The
appellant alleged that she was locked in that unit and would receive
food at the mercy of her
husband, who is the complainant’s son,
and whom I shall refer to as “I[...]”. Regarding
the events leading
up to the incident, it is common cause that the
complainant, who is the appellant’s father-in-law, was at the
entrance of
the appellant’s residential unit, with the
appellant in the unit’s kitchen area facing the granite counter
whilst I[...]
started unpacking the grocery packets brought in by
him.
[4]
Whilst the record was extensive, very minimal evidence was led by
either party on the actual incident
which resulted in the
complainant’s suffering from a swollen ankle. Evidence
was led however about the South African
Police Services being called
to the residence following complaints made by the appellant preceding
the incident, including a complaint
made on the night of the incident
by the appellant that her minor child was being withheld from her.
The complainant and
I[...] both described the carrying of three
grocery packets, all knotted, from I[...]’s vehicle to the
appellant’s
unit. At all times the complainant was stationed
outside the entrance to the unit. Whilst it is common cause
that an emotional
exchange took place between the appellant and
I[...] in respect of the whereabouts of their minor child, and that
the appellant
did not engage with the complainant, various versions
as to what transpired thereafter were placed before the Court
a
quo
.
[5]
The evidence of the complainant as to what transpired was that whilst
I[...] was in the process
of unpacking the groceries bought for the
appellant, the
appellant came into the
kitchen area from her bedroom, appearing upset and angry. She
enquired from I[...] about the whereabouts
of their minor child, and
thereafter asked “what is this” with reference to the
grocery packets on the counter.
The complainant thereafter
contended that I[...] responded that “these are groceries and I
am just packing the groceries
away” to which the appellant
then lifted the packet that was closest to her with both hands,
supported it at the base
with “the top thereof knotted”,
then
turned
to face the doorway and hurled the packet at the complainant, at the
same time stating “here you can have it”.
The
complainant’s evidence insofar as the words purportedly uttered
by the appellant prior to throwing a packet in his direction
did not
accord with the statement made to the investigating officer the
morning after the incident.
[6]
The statement made by I[...] to the investigating officer following
the incident differed from
his evidence. In his police statement,
I[...] recorded that the appellant lifted the packet of groceries and
threw it towards the
front door where the complainant was standing.
The evidence given by I[...] in the Court
a quo
contradicted his police statement when he testified that after the
appellant asked him what he was doing with the groceries she
took the
packet which was on her left hand side, with both hands, and turned
to her right towards the complainant and she threw
the packet at him
saying “here you can have it”.
[7]
The appellant denied throwing a packet at or towards the
complainant. Her evidence was that
she was locked up and effectively kept a prisoner by the
complainant’s family. The appellant further explained that it
was
only after she posted a message on social media, calling for
assistance, that a social worker intervened and obtained an
interim protection order on behalf of the appellant on 27 December
2019. Regarding the incident in question, the appellant’s
evidence was that she confronted I[...] about the whereabout of their
child, who had been taken away from her by I[...]’s
mother.
Upon being confronted I[...], who was in the process of
unpacking some groceries became upset and collected the items
he had
unpacked, whereafter both he and the complainant left her residential
unit.
[8]
Whilst the appellant, in evidence, denied throwing a packet
,
counsel for the appellant conceded that the appellant had thrown
a grocery packet but submitted that it was never her intention to
assault the complainant in any manner whatsoever. It was
further submitted on behalf of the appellant that even if the Court
finds the appellant to have been untruthful regarding the throwing of
a grocery packet, such false denial does not detract from
the state’s
failure to prove its case.
[9]
It
follows that even if this court disbelieves the appellant, the State
still bore the onus of proving each element of the offence
beyond a
reasonable doubt. This was emphasised as follows in
Juggan
v S
[1]
:
“
Although
the appellant was untruthful in regard to the visit to the lonely
spot as has been repeatedly stated, the untruthfulness
of an accused
person must not be taken to the point of relieving the State of the
burden of discharging the onus resting upon it.”
[10]
In this case, neither counsel was able to refer this Court to
evidence led in respect of the issue of intention.
Whilst
the
appellant argued that the State failed to prove the requisite element
of
mens rea
,
Mr Buthelezi on behalf of the respondent submitted that the
appellant’s intention to injure the complainant was indicated
by her actions when she purportedly said “here, you can have
it” and threw a packet containing cans in the complainant’s
direction.
[11]
The appellant could only be found guilty of assault with intent to do
grievous bodily harm if there was evidence
that she entertained
foresight in respect of injuring the complainant. The court
a quo
found that the appellant had picked up the packet of groceries
containing cans, turned to the complainant, looked at him saying
“Here, you can have it” and threw at him with the
intention of causing him grievous bodily harm. Nothing further is
recorded regarding the appellant’s intention or as to how the
court
a quo
arrived at the aforesaid conclusion, and
accordingly I am unable to comment on the reasoning in arriving at
such a conclusion.
[12]
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 force 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.
[2]
[13]
Considering the facts of the present case against the
background of these factors, I am not satisfied that the appellant
had any
intention to injure her father-in-law. This being
supported by the uncontested evidence that the complainant “had
not
done anything
wrong” as stated by
him, that there existed no reason or basis for the appellant to want
to cause harm to the complainant,
and that the relationship between
the complainant and the appellant was better than that between the
appellant and I[...].
[14]
The court
a quo
erroneously accepted one
version of the events, being the version given by the complainant in
their evidence, whilst disregarding
the contradictory versions as
contained in both the complainant’s, and I[...]’s,
statements made to the investigating
officer.
[14] In
the circumstances, I am not satisfied that an assault with
intent
to do grievous bodily harm, or
the lesser offence of
common assault,
was
proved beyond a reasonable doubt
and accordingly hereby
set aside the conviction.
[15]
Even if I am wrong in my conclusions as aforesaid, there is another
reason as to why the appeal must succeed
and the conviction falls to
be set aside. This is by the application of the
maxim de
minimis non curat lex
.
[16]
Counsel for the appellant submitted that had it not been for the
acrimonious divorce proceedings, which
were instituted by the
complainant against I[...], and the related primary residence battle
between the parties, the incident would
not have made it “into
the criminal court”. Upon a reading of the transcript, I
tend to agree with this submission.
Having regard to the
lengthy transcript, a large portion of the evidence focussed on the
various matters pending before Court between
the appellant and
I[...].
[17]
The
applicability of the maxim
de
minimis non curat lex
was
discussed at length in
S
v Dimuri and Others
[3]
,
cited
with approval in
S
v Visagie
[4]
,
where the Court stated that
[5]
:
“
The
de
minimis
principle
is recognised as part of the criminal law. It applies to its fullest
extent to permit of an acquittal where such is the
triviality of the
alleged offence that it ought not to have been prosecuted.”
[18] In
S v
Kgogong
[6]
Trollip JA held that in
certain circumstances, where the offence committed is so trivial, the
accused should not be prosecuted therefor,
but if he is, he should
generally be acquitted for, in the contemplation of the law, because
of the
de
minimis
rule,
the offence must be regarded as not having been committed.
[19] In
S v Visagie
, which happened to be a case of assault, the
appeal court was of the view that pushing the victim was so trivial
that it did not
warrant a conviction. Whilst the appeal court
was satisfied that the act of pushing covered all the elements of
assault,
the conviction was set aside based on the
de minimis non
curat lex
maxim, which decision the court reached even though the
victim had fallen down when he was pushed and broke his wrist as a
result.
[20] In
determining the application of the
de
minimis
principle,
and whether or not to allow an acquittal on the grounds of the
triviality of the alleged offence, the judicial officer
is charged
with a policy decision to be exercised according to all the relevant
circumstances of the case. In
R
v Maguire
[7]
Beadle CJ said that,
wherever the defence of
de
minimis non curat lex
is
raised, the court has to consider all the circumstances under which
the blow which is said to be trivial was delivered. In some
circumstances, a blow may be considered so trivial as to justify the
court ignoring it altogether, in different circumstances,
a similar
blow might be a relatively serious assault.
[21]
Mr Buthelezi implored the Court not to apply the
maxim and submitted that it would disregard the seriousness
of the
injury suffered by the complainant. Having regard to the lack
of severity of the complainant’s injury, and the
manner in
which it was sustained, the mere fact that the complainant was
injured in my opinion does not constitute a circumstance
which would
exclude the application of the maxim
de minimis non curat
lex.
[22]
Upon an examination of the circumstances under which the complainant
was injured, bearing in mind that the
appellant did not know what was
contained in the grocery packet, did not aim it at the complainant
but at the doorway rather, and
was not involved in an altercation of
any sort with the complainant at the time of the incident, I am of
the view that the assault
is of such a trivial nature as to warrant
the court ignoring it altogether.
[23] In
those circumstances I find that the appeal is upheld and that the
conviction and sentence be set aside.
PLOOS VAN AMSTEL AJ
I agree.
VOORMOLEN
AJ
CASE
INFORMATION
Date
of Hearing
: 1 July 2024
Date
Delivered
: 14 August 2024
Appearances
Counsel
for the Appellant:
Mr L
Barnard SC
Instructed
by:
R. K.
Nathalal & Company
Suite
1 Nathco Centre
99
Wicks Street
VERULAM
Ref:
MR NATHALALL/ag/APPEAL
Tel:
(032) 533 2909
Cell:
083 7893 909
Email:
nathco@mweb.co.za
Counsel
for the Respondent:
Mr
Buthelezi / Mr S A Nkosi
Instructed
by :
DEPUTY
DIRECTOR OF PUPLIC
PROSECUTIONS
/ SCCU-DURBAN
Southern
Life Building
DURBAN
:
Ref: N/A
:Tel:
(031) 335 6641
:Email:
SaneNkosi@npa.gov.za
[1]
[2000]
JOL 7459
(A)
para 12
[2]
S
v Dipholo
1983
(4) SA 757 (T)
[3]
1999
(1) SACR 79 (ZH)
[4]
2009
(2) SACR 70
[5]
at
88
i
–
90
c
[6]
1980
(3) SA 600
(A) at 603
[7]
1969
(4) SA 191
(RA); (1969 (2) RLR 341 (A) at 195A–C