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Circulate to Judges: NO
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Circulate to Regional Magistrates: NO
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DMSION - MAHIKENG
CASE NO: CA35/2021
In the appeal of:
EVA LADY MOS ALA Appellant
and
THE STATE R~:spondent
Coram: Titus AJ et Zwiegelaar AJ
Delivered: This judgment is handed down electronically by circulation to the paiiies
through their legal representatives' email addresses. The date for the hand-down is
deemed to be 27 January 2026.
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ORDER
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On appeal from the Regional Division of North West, Stilfontein (Regional
Magistrate CSP Oosthuizen-Senekal sitting as the trial comt).
[i] The appeal against both conviction and sentence is dismissed.
[ii] The conviction and sentence is confirmed.
[Hi] The consequential order in terms of section 103( 1) of the Fireatms Control
Act 60 of 2000 is confirmed.
JUDGMENT
TITUSAJ
INTRODUCTION
ll] This is an appeal against both conviction and sentence. The appeal is with
leave of the court a quo.
l2J The Appellant was charged in the Regional Court, Stilfontcin, with one count
of assault with intent to do grievous bodily harm, read with section 51 (2) of the
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Criminal Law Amendment Act1. The Appellant enjoyed legal representation in the
court a quo and pJeaded not guilty.
[3] On 13 November 2020, the Appellant was convicted on the count of assault
with intent to do grievous bodily harm, read with section 51(2) of the Criminal Law
Amendment Act. The Appellant was sentenced on 15 December 2020 to 10 years
imprisonment of which five years was suspended for a period of five years on
condition that the accused is not found guilty of assault with intent to do grievous
bodily harm and or any competent verdicts thereon, which offence is committed
during the tenn oftbe suspension. Further, in terms of section 103 of Act 60 of2000
('the Firearms Control Act') the Appellant was dcclru·ed unfit to possess a firearm.
GROUNDS FOR APPEAL
[4] The appeal lies against conviction and sentence and against the Lrial court's
direction in tenns of the Pireanns Control Act. The Appellant is presently
incarcerated.
[5] The appellant contends:
"AD CONVICTION
I. The Court did not take into consideration the contradictions inherent in the
state case, as set out below.
Act No. 105 of 1997.
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2. The Court misguided itself in finding that the eye witness, Mr Embrose
Gqolomo te!i1ified in a satisfactory manner and that his evidence was
satisfactorily corroborated, with reference to the following:
2.1. Mr Gqolomo testified that:
a) He wenl inside his house to call his friends, and that they all went
to witness the incident together.
b) Upon their arrival, he witnesses the Accused hitting the child
with a broom stick.
c) She then slipped, fell, got up and went inside the house to return
with a bucket of water mixed with Jeyes Fluid.
d) The Accused further requested them to assisl her in carrying the
cupboard next to the kitchen door and to place it on top of the
child.
2.2. The other eye witness, Mr. Tumisang Khumalo testified that:
a) Mr. Gqolomo did come and call them inside the house.
b) fhey did accompany Mr. Gqolomo, but when they amved, the
Accused was already inside her house.
c) He did not witness any assault on the child, or the Accused
slipping and falling, and although he did see a container of Jeycs
Fluid, he did not see the Accused come out of the house with it.
d) I le never heard the Accused request assistance with the
cupboard.
2.3. Dr. Davraj also testified that assault with a broom stick would
usually result in tram line bruising, which was absent during her
examination of the child ...
AD SENTENCE
I. The Court did not emphasize the following mitigating factors:
I. I. The possibility of rehabilitation.
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1.2. The fact that this crime was committed whilst the Applicant was
under the influence of strong licquor.
1.3. The fact that the Applicant was a first offender.
2. The Court further erred in over-emphasizing the following factors:
2 .1. The seriousness of the offence.
2.2. The interests of society.
2.3. The prevalence of the offence.
2.4. The retributive element ofsentencing ... "(.~ic)
[6] It is trHe that a court of appeal should be slow in interfering with the findings
of a trial cou1t unless the appeal court finds that the trial court's findings of fact and
credibility are vitiated by irregularity, or unless an examination of the record reveals
that those fu1dings are patently wrong.
[7] The trial court's finding of fact and credibility are presumed to be correct
because the trial court, and not the court of appeal, has had the advantage of seeing
and hearing the witnesses and it is in the best position to detennine where the truth
lies2.
2 S v Jackso n 1998(1) SACR 470 (SCA).
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AD CONVlCTION
[8) The Appellant argued that the trial court failed to take into account
contradictions becween the testimonies of Mr Embrose Gqolomo and Mr. Tumisang
Khumalo. While ce11ain differences exjst, these are not material contradictions but
rather natural discrepancies arising from different perspectives and recollections.
The trial court correctly found that Mr Gqolomo's testimony was credible and
consistent in its core aspects.
1.91 Mr Khumalo's evidence did not displace the version of Mr Gqolomo but
simpJy reflected that he did not observe all the events. The trial court was entitled to
accept that Mr Gqolomo's evidence was corroborated by surrounding circumstances.
(1 OJ The medical evidence of Dr Davraj, while noting the absence of tram line
bruising, does not exclude the possibility of assault with a broomstick. The trial comt
correctly held that medical findings do not negate the eyewitness account.
[ 11 J The Comt notes that the Appellant contends that it appears from the record
that the medical doctor did not testify during the trial. However, this assertion is
plainly contradicted by the record. In pruticular, lhe transcript of the defence
attomey's closing address makes explicit reference to the evidence of the medical
doctor and the questions that the defence posed to her during the trial relating to her
medical report. The record therefore demonstrates that the medical doctor did in fact
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testify, that the J88 report was tendered into evidence, and the Appellant's contention
to the contrary is without merit.
[12) The Appellant's submission that the injuries sustained by the complainant do
not justify a conviction for assault with intent to do grievous bodily harm is
untenable. The evidence establishes both the actus reus and the requisite mens rea.
(13] The actus reus is plainly established on the record. The mens rea is equally
apparent. The deliberate striking of a child, barely two years of age, with a broom
cvi<.lences an intention to inflict serious bodily harm, or at the ve1y least, a conscious
appreciation of the likelihood that such hann would result. It is trite that the injuries
need not be Ii fe-threatening to sustain a conviction for assault with intent Lo do
grievous bodily harm. What is required is that the injuries be of a sufficiently serious
character, transcending the trivial or superficial, and that the accused either inlcnded
to cause such harm or foresaw its occurrence. In the present matter, Lhe injuries
inflicted upon the complainant are manifestly of a serious nature.
[ 14 J ln these circumstances, the trial court was conect in concluding that both the
nan1re of the assault and the injuries sustained justified a conviction for assault with
intent to do grievous bodily harm. The argument advanced that the Appellant was
not in the proper state of mind at the time of the assault, owing to intoxication and
an alleged lack of awareness that she was striking the child, cannot avail the
Appellant. Voluntary intoxication does not operate as a defence to crmtinal liability
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where the conduct in question is otherwise unlawful and intentional. The evidence
demonstrates that the Appellant deliberately struck a child of one and a half years of
age with a broom, causing multiple abrasions to the face, scalp, and back. The actus
reus of the offence is, as the Court noted before, established, and the Appellant's
state of intoxication does not negate the requisite mens rea, as the foreseeability of
serious harm to such a vulnerable victim is manifest. The trial coutt was therefore
co1Tect in rejecting this defence, and the conviction for assault with intent to do
grievous bodily harm stands.
[15) The trial court's acceptance of the State's case was justified. The
contradictions raised are immaterial, and the conviction is supported by credible
evidence. The appeal against conviction is accordingly dismissed.
AD SENTENCE
[16] It is trite that sentencing lies within the discretion of the trial court and that a
court of appeal wi11 not lightly interfere with the sentence imposed. The powers of
the cotut of appeal are relatively limited to those instances where the sentence is
vitiated by irregularity or misdirection or where there is a striking disparity between
the sentence passed and tJ1at which this court would have imposed3. It is only when
3 Grobler v S 2015 (2) SACR 210 (SCA) at para 5.
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the trial coutt has exercised its discretion in an improper manner or misdirected itself
that interference will be warranted.4
[17) The Appellant argued that the trial court failed to emphasize mitigating
factors such as intoxication, first-offender status, and potential for rehabilitation. The
trial court did consider these factors but correctly found that they were outweighed
by the seriousness of the offence, the interests of society, and the need for deterrence.
[18J As this Court notes before, intoxication cannot serve as a shield against
accountabilily, particularly where the offence involves violence against a child,
particularly one of such lender years. The fact that the Appellant is a first offender
docs not diminish the gravity of the offence. The. trial court was entitled to impose a
sentence that reflects society's condemnation of such conduct.
[19] The sentence imposed is neither shockingly inappropriate nor
disproportionate. It reflects a proper balance between the interests of the Appellant
and those of society. The appeal against sentence is therefore dismissed.
Orc.Jer
[19] In the premises, the following order is made:
[i] The appeal against both conviction and sentence is dismissed.
• S v Rabie 1975 (4) SA 855 (A)
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[ii] The conviction and sentence is confinned.
[iii] The consequential order in terms of section 103(1) of the Firearms Conu-ol
Act 60 of 2000 is con.firmed.
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVlSION
I concur,
CJ ZWIEGELAAR
ACTING JUDGE OF THE UIGH COURT
NORTll WEST DIVISION
APPEARANCES:
For Appellant:
For Respondent:
Judgment Reserved:
Adv T.R Seroto
North West Bar Association
Mahikeng
Adv. K Pethu
NDPP
MAHIKENG
I I April 2025
Judgment Handed Down: 27 January 2026
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