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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE-GRAHAMSTOWN)

Review Case No: 20140037

Date delivered: 18 August 2014

In the matter between:

THE STATE

vs

SIMPHIWE JANTJIE

______________________________________________________________

REVIEW JUDGMENT

______________________________________________________________

MAKAULA J:

[1] The accused was charged and pleaded guilty to assault with intent to

do Grievous Bodily Harm (Assault GBH). The magistrate questioned him in

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terms of Section 112 (1)(b) of the Criminal Procedure Act 51 of 1977 (the

Act) as follows:

“Court - Do you understand the charge against you?

Accused- Yes, Your Worship.
Court - Do you know the complainant?
Accused - Yes, Your Worship.
Court - How?
Accused - I know the complainant, Your Worship, and there is no
relationship between us, the only thing happened, the
complainant insulted me, Your Worship. (sic)
Court - On this day what happened? On that day did you assault
her?
Accused- Yes, Your Worship, I did assaulted the complainant with a
stick. (sic)
Court - What type of a stick was it?
Accused- It was a wooden stick, Your Worship.
Court - Where on her body?
Accused- I hit her on her shoulders, Your Worship.
Interpreter- The witness is pointing.
Court - And where else?
Accused- Only on her shoulder, Your Worship.
Court - How many times?
Accused- Only once, Your Worship.
Court - What was she doing when you assaulted her?
Accused- Your Worship, the complainant was insulting me at that stage
and after hitting her, Your Worship, she just walk away. (sic)
Court - Do you know that a stick can injure someone?
Accused- Yes, Your Worship, I know that.
Court - And you know that your actions were unlawful.
Accused- That’s right, Your Worship.
Court - Happy?
Prosecutor- All the elements, Your Worship. (sic)
Court - Okay sir, the Court is satisfied that you admit pleading guilty
to the offence, you are accordingly found GUILTY as
charged.”

[2] The state proved that the accused had been previously convicted of

the following offences;

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2.1 possession of property suspected to have been stolen;

2.2 Domestic violence and crimen injuria;

2.3 Assault GBH;

2.4 Assault GBH;

2.5 Theft; and

2.6 Assault.

[3] It does not appear on the record that the accused was apprised of his

right to advance factors which the court should take into account when

considering sentence. The mitigating factors there are, emanate from

questions put to the accused by the magistrate which are that; the accused is

[……] years, he has children who are staying with their mother and that he

was doing odd jobs as he was not permanently employed.

[4] In aggravation of sentence, the court a quo took into account that the

accused did not lead a clean life hence he had a number of previous

convictions which involved assault and domestic violence. It is further

interesting to note the following comments from the judgment on sentence;

“You have only yourself to blame. I have said this this morning but I am
going to repeat it. Every person deserves a second chance in life. You have
been given more than that. But now you think that the Court is just playing, I
think now it is that we teach you lesson that we are not playing here. (Sic)
Because now you are making a mockery of the justice system, because if
your are treated with mercy, then you think we are playing. People outside
there will lose confidence in the whole justice system. That is one of the
reasons why people take the law into their own hands when they are not

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satisfied with what the Courts are doing. Hence, sometimes you see on the
television, people being necklaced and burnt with tyres. People say that they
are tired of this justice system because the Courts are not helping them, so
let us help ourselves, hence you find people being killed. Some of them are
even innocent.” (Sic)
[5] The accused was sentenced to undergo 18 months imprisonment.

[6] The matter came before my brother Tshiki J who raised the following

queries;

“1. AD CONVICTION

1.1 When the Court questions the accused following a plea of guilty, it
does so with a view to satisfy itself, not the public prosecutor as it
seems to be the case herein, that all the elements of the offence are
admitted by the accused.

1.2 On the basis of what evidence other than the use of the stick, was
the Court satisfied that the offence of assault with intent to cause
grievous bodily harm was proved in this case?

1.3 Was there any evidence of injuries caused to the complainant which
proved the offence charged?

2. AD SENTENCE

2.1 The magistrate’s comments in his judgment on sentence create the

impression that he put more emphasis on the previous convictions of
the accused rather than the merits of the case before him, more
especially he ignored the fact that from the record it does not appear
that there were injuries proved to have been sustained by the
complainant.

2.1.1 Did the Court seek any assistance from both the state and/or the
complainant as to the nature of the injuries which would justify the
sentence imposed? If so, why were they not recorded?

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2.1.2 If not, on what basis, other than the previous convictions, was the
Court satisfied that a sentence of eighteen (18) months imprisonment
was not harsh but a competent sentence in the circumstances?

2.1.3 Did the Court take into account that according to the evidence
accused was also provoked by the complainant?

2.1.4 Please give full reasons for sentence.”

[7] The magistrate responded as follows;

“AD CONVICTION

1.1 I am aware of this fact it is just that at times I like to confirm with the
Public Prosecutor on certain issues as he is also a court official
though not presiding officer.

1.2 The accused knew that a stick can cause grievous bodily harm and
when he assaulted the complainant he was aware of this fact. From
this it can be safely said that he intended to do grievous bodily harm.
This is from his response under questioning in terms of section 1.2
(1)(b) of C.P.A. (sic)

1.3 None. What is important in cases of this nature is the intention of the
accused not necessary the end results. The injuries would of cause
play a major role when it comes to sentencing.

To support my averment, I would like to refer the Honourable Reviewing

Judge to CR SNYMAN FOURT EDITION at page 435 on CRIMINAL LAW.
From this, what is important is the intention to cause grievous bodily harm.

From this, what is important is the intention to cause grievous bodily harm.
Whether grievous bodily harm is in fact inflicted is immaterial on determining
hability. (Sic) It is simply the intention to do such harm that is in question.
This can be derived from the nature of the weapon used, part of the degree
of force taken. (Sic)

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In the present case accused used a stick which is dangerous weapon and
was aware that it can cause grievous bodily harm. (Sic) Though there was
evidence of injuries. Accused clearly had intention to cause such injuries.
(Sic) In fact according to the Honourable Author one can be convicted of this
assault though there are no injuries. (Sic) In this regard I would like again to
refer Honourable Reviewing Judge to the case of Joseph 1964 (4) SA
54(CRA). It is on the basis of the above that I convicted the accused of the
offence charged.
AD SENTENCE

Reason for sentence

1. The offence on its own is a serious offence.

2. It is prevalent in the district of Lady Grey.
3. It was committed against a female person which falls under a vulnerable
group.
4. The weapon used in the circumstances was not justifiable. Though
accused was provoked by the complainant he could have slapped her or
kick her for that matter not use a stick against a female who is of the
weaker sex by nature.
5. If one look at his previous convictions, it is clear that the accused is a
man. (Sic ) In the past he has been treated with kit gloves (sic) by the
courts as far as sentencing is concerned. He has been treated with
mercy and now throwing that mercy back at the face of the court. He has
not learnt from his previous sentences. He is making mockery of whole
justice system. If he was given a lesser sentence, surely people will lose
faith system because it is clear that accused is not prepared to repent
from his bad behaviour. (sic) It is for that reason that I ask the
honourable to reviewing his judge to let the sentence stand.” (Sic)

[8] Assault with intent to do grievous bodily harm consists in an assault

which is accompanied by the intent to do grievous bodily harm. What is

required is that the accused must have known, or at least foreseen the

possibility, that his conduct (whether that took the form of the application of

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force or threats) might cause the complainant grievous bodily harm.1 In other

words, it is immaterial whether bodily harm is in fact inflicted. It is the

intention to do grievous bodily harm that is relevant.2

[9] In S v Mbelu3, the evidence was that the accused threw a bottle at the

head of her lover and was convicted of assault GBH. On review before a full

bench, Miller J, dealing with the aspect of intent to do grievous bodily harm

had the following to say;

“Now where the court is confronted with the problem whether it 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 not 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.”

[10] Having analysed the evidence, Miller J concluded as follows;

“Looking at the matter in this light I cannot conscientiously say that the only
reasonable inference which I can draw from this assault is that the accused
intended to cause the complainant grievous bodily harm. In terms of some of
the cases to which we were referred it appears that for this crime to be
brought home to an accused it must be established that the harm which he
intended was of such a serious nature as to interfere with health and however
one expresses it, it is at least clear that there must be an intent to do more
than inflict the casual and comparatively insignificant and superficial injuries

1
South African Criminal Law and Procedure: Vol II Common Law Crimes 3 rd Edition JRL Milton
page 431-432
2
CR Snyman Criminal Law, 5th Edition at page 462
3
1966 (1) PH H176 (N) at 176

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which might ordinarily follow upon an assault. There must be proof of an

intent to injure and to injure in a serious respect. I cannot draw the inference
that that intent was present although it might well have been.”

[11] The only reason advanced by the magistrate for concluding that the

accused intended to cause the complainant grievous bodily harm is because

‘a stick on its own is a dangerous weapon’, the use of which is as a result

intended to cause grievous bodily harm. The magistrate relies on what C R

Snyman4 says which is the following;

“Whether grievous bodily harm is in fact inflicted on Y is immaterial in

determining liability (though it is usually of great importance). It is simply the
intention to do such harm that is in question.”

[12] With respect, what the magistrate misses is what is said by C R

Snyman, in the next sentence which reads;

“Important factors which may indicate that X had such an intention are, for
example, the nature of the weapon or instrument used, the way in which it
was used, the degree of violence, the part of the body aimed at, the
persistence of the attack and the nature of the injuries inflected, if any.” (My
emphasis)

[13] In S v Melrose5 Baron AJA, dealing with a case where the appellant

assaulted and injured the complainant with a pipe wrench, had the following to

say about the nature of the weapon and the injuries sustained;

4
Page 462
5
1985 (1) SA 720 (ZSC) at 723 A-F

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“There can be no doubt that the pipe wrench which the appellant used was a
weapon with which very serious injury indeed could be inflicted; and there
can be no doubt also that the blow was aimed at and landed on the
complainant’s head. . . . It is clear also that the degree of force used could
not have been very great; the magistrate described the injury sustained by
the complainant as ‘not very serious’, and reading the complainant’s
evidence and that of the appellant there is nothing to suggest that the blow
did not land where it was intended to land. It is therefore valid to draw the
inference that the injury actually sustained by the complainant was no less
serious than the appellant intended to inflict.”

[14] The learned Judge further referred to the formulation of the intention

necessary for the commission of assault GBH. He referred to S v Moyana6

which was followed in by the Zimbabwean Supreme Court of Appeal in

Ncube & Another v S, Case No 73/83 where the following appears;

“. . . whether (he) accused, when he perpetrated the assault, knew that there
was a risk of grievous bodily harm resulting and was reckless whether or not
that result ensued.”

[15] Barona AJA contended as follows;

“On the facts I do not think that this is really a case of a man being aware of
possible consequences and being reckless in regard thereto. As I have said,
although the appellant, on his own admission, was in a temper, we must
proceed on the assumption that he was sufficiently in control of himself to
reverse the wrench; and it is also clear that the blow landed where it was
aimed. The consequence, broadly speaking, what the appellant intended.
The magistrate’s finding that the injury was not very serious would in itself
seem to me to rule out a conviction on a charge requiring an intention to
inflict harm which ‘seriously interferes with health’ or was ‘really serious.’”

6
1980 ZLR 460

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[16] In the instant matter, the questioning by the magistrate elicited that the

complainant was hit once with a stick (which has not been described fully) on

the shoulders. There is no evidence that the complainant sustained any injury

as a result thereof. All that is known is that the complainant simply walked

away. The magistrate makes a startling remark that ‘Though there was

evidence of injuries.’ With respect the record does not refer to any injuries

sustained by the complainant. No medical report nor evidence suggesting

that there were injuries, therefore I do not know where the magistrate got to

know that there were injuries. The magistrate further makes the point that

‘Accused clearly had intention to cause such injuries.’ With respect it eludes

me to which injuries he is referring to.

[17] The magistrate in his reasons relied on the case of S v Joseph7 in

convicting the accused. The facts of S v Joseph are distinguishable. The

complainant in that case was a police officer who was dressed in full police

riot uniform signalling to a motor vehicle to stop. Though it was at night he

shone a spot lamp on his body so that he was visible. He signalled for an

oncoming motor vehicle to stop by waving his arm up and down. He moved

to the middle of the side of the road on which the car was not travelling. The

accused left his path of travel and came straight to him to an extent that he

had to leap out of the road. Having done so, the accused drove back to his

side of the road. Quènet JP had the following to say;

“Although the point was not advanced in the appellant’s favour, it is possible
the appellant swerved simply to frighten Hill. If that was so, the act was so

7
1964 (4) SA 54 (RA)

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reckless and involved such a likelihood of injury, it would be proper to say he

intended to injure Hill and his companion. There is nothing to suggest that
his appreciation of the risk was in any way affected by liquor.”

[18] In S v Dube8 which is similar to S v Joseph supra, Manyarara JA had

the following to say;

“The offence against Cynthia was committed in the course of street thuggery
by the appellant’s gang. My view is that street thuggery is a type of offence
which can be committed only with actual or constructive intent to do grievous
bodily harm, in that it is essentially a type of violence directed against the
victim recklessly or without regard to the consequences. Whether bodily
harm is in fact inflicted in the course of this form of assault is immaterial in
determining liability, although it is usually of great importance for the
purposes of sentence as Professor Snyman states.” (Emphasis added)

[19] In casu, it is clear that the magistrate erred in convicting the accused of

Assault GBH. As alluded to it cannot be found in evidence that the

complainant sustained any injuries. The finding by the magistrate that ‘Though

there was evidence of injuries . . .’ is not borne by the evidence. The blow

itself was aimed at the complainant’s shoulder. She was hit once. Even

though a stick was used, it cannot be inferred from the circumstances that the

accused intended to cause the complainant grievous bodily harm. The

reason by the magistrate that ‘This can be derived from the nature of the

weapon used, part of the degree of force taken’, with respect, does not make

sense to me. The amount of force used does not appear in evidence. I am

therefore of the firm view that the conviction should not stand.

8
1991 (2) SACR 419 (ZS) at 424 a-b

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[20] In passing sentence, a presiding officer has to consider the triad i.e. the

crime, the offender and the interests of society.9 A balance has to be struck

between the three factors. There should be no overemphasis of one factor

against the others.

[21] In the instant matter, the magistrate has overemphasized the previous

convictions of the accused and the use of the stick as a dangerous weapon.

That is borne out by finding referred to in paragraph 5 of his reasons for

sentence appearing on page 6 above.

[22] Furthermore, the following comments by the presiding officer when

passing sentence emphasise this point.

“COURT: “You have only yourself to blame. I have said this this
morning but I am going to repeat it. Every person deserves a second chance
in life. You have been given more than that. But now you think that the
Court is just playing, I think now it is that we teach you lesson that we are not
playing here. Because now you are making a mockery of the justice system,
because if your are treated with mercy, then you think we are playing.
People outside there will lose confidence in the whole justice system. That is
one of the reasons why people take the law into their own hands when they
are not satisfied with what the Courts are doing. Hence, sometimes you see
on the television, people being necklaced and burnt with tyres. People say
that they are tired of this justice system because the Courts are not helping
them, so let us help ourselves, hence you find people being killed. Some of
them are even innocent.” (Sic)

[23] Having regard to these facts and the personal circumstances of the

accused, the sentence needs to be altered. Hence on receipt and having

9
S v Zinn 1969 (2) SA page 537 (AD) at 540G

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gone through the record, I issued an order to the registrar to have the

accused released from custody.

Consequently I make the following order:

1. The conviction and sentence are set aside and replaced with the

following;

1.1 The accused is found guilty of assault;

1.2 The accused is sentenced to undergo twelve (12) months

imprisonment wholly suspended for five (5) years on condition

that the accused is not convicted of assault during the period of

suspension.

_____________________

M MAKAULA

JUDGE OF THE HIGH COURT

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