Picture source: Getty/iStock
By Andrew Jeffrey Swarts
The crime of common assault and assault with the intent to do grievous bodily harm is sometimes one of small margins. In simplifying the crime, the courts have developed some indicators or principles to assist when it must conclude whether the person is guilty of common assault or whether the accused had an intent to cause more serious harm.
In S v Oosthuizen and Another 2020 (1) SACR 561 (SCA) at para 21 the court held that the crime of assault consists of ‘(a) conduct which results in another person’s bodily integrity being impaired (or the inspiring of a belief in another person that such impairment will take place); (b) unlawful and (c) intention’. The court at para 22 was in agreement with CR Snyman Criminal Law 5ed (Durban: LexisNexis 2008), which held that in addition to the above-mentioned elements of assault, ‘there must be intent to do grievous bodily harm’. The next question is how does one infer that the accused had the necessary intent? At para 22 the court answers this question when it held that it can be inferred from the nature of the weapon that was used, the way 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 inflicted. The nature and kind of injuries are an indication that a physical attack must have taken place and caused serious injury to the victim. The question now follows, is it possible for a prosecution to be successful without a physical attack having taken place?
The court in Oosthuizen pronounced on this burning question whether actual violence that is inflicted can be regarded as a measuring stick for this crime to be committed. The court in Oosthuizen answered this question in the negative where it held at para 22, while citing the case of S v Mtimunye 1994 (2) SACR 482 (T) where that court held: ‘Often the intention of the perpetrator of an assault is inferred from the act by which a physical assault is carried out. Where an assault consists of a threat, there can be no reason why the intention cannot be inferred from the contents of the threat, unless, obviously, it appears that the perpetrator does not have the intention or the ability to carry out the threat.’ The court in Oosthuizen was in agreement with the dictum cited in Mtimunye. It appears that it is not only the degree of violence or seriousness of the injuries recorded in the medical report that will be an indication of whether a person is guilty of this crime or not, but the necessary intent by the accused when he threatens serious bodily harm on the person of another. In S v September 2023 (1) SACR 662 (WCC) the appellant was found guilty of two counts of assault with the intent to cause grievous bodily harm and one count of contravention of a protection order committed on his elderly mother and two elderly male friends when they tried to intervene. In the one count of assault with intent to do grievous bodily harm, he pushed an elderly man off a chair. At para 23 the court held that: ‘This type of offence is inherently aggravating, because of the frailty of the victim, the victim’s inability to defend him or herself … .’ In dismissing his appeal the court at para 24 held that: ‘The mere fact that the complainants have not sustained any serious physical injuries, cannot detract from the seriousness of the offence.’ The court in September confirmed the Oosthuizen decision that assault with the intent to do grievous bodily harm can be committed without actual serious injuries, and if the intent is present to cause said serious injury you can be convicted for this offence.
In Lelaka v The State (SCA) (unreported case no 409/15, 26-11-2015) (Ponnan, Shongwe, Petse and Mathopo JJA and Van der Merwe AJA) the complainant and the appellant in this appeal visited a tavern. The complainant took a bottle of liquor from the appellant and the applicant was unhappy about this. The appellant showed his displeasure by striking the complainant in the face and he was charged with assault with the intent to do grievous bodily harm. On 14 February 2013, the appellant was found guilty because the magistrate was satisfied that he admitted to all the elements of the crime. The state applied for a remand to obtain the appellant’s previous convictions. The matter was postponed to 28 February 2013 for that purpose, the appellant’s bail was cancelled due to his conviction. The court was informed that the complaint passed away on 15 February 2013. The post-mortem report indicated that the cause of death was ‘severe blunt force head trauma’, sustained at the hand of the appellant. The new legal representative of the appellant urged the court to sentence the applicant in terms of his plea of guilty. However, the court was confronted with the fact that it already found the applicant guilty of assault with intent do to grievous bodily harm. The court at para 6 held that it is a general rule of common law that a person may not be punished for the same offence twice. It also held that this rule is entrenched in s 35(3)(m) of the Constitution. However, the court at para 7 held that ‘our law has long recognised that a plea of autrefois convict is not available when it was impossible at the previous trial to prefer the more serious charge later presented.’ The court went further at para 7 where it held that: ‘It follows that a conviction for assault is no bar to a prosecution for murder or culpable homicide where the victim has died since the conviction “for the fact of the death has altered the essential nature of the crime.”’ The Supreme Court of Appeal remitted the matter back for sentencing and if the state so elected it could charge the accused with a more serious charge.
Section 270 of the Criminal Procedure Act 51 of 1977 (CPA) which deals with competent verdicts, was used to its full effect in S v Mazomba (ECB) (unreported case no CA&R2/09, 31-3-2009) (Zilwa AJ, Dhlodhlob ADJP). The accused was charged with contravention of a protection order. In terms of the provisions of the protection order, he was prohibited from entering the residence of the complainant and to refrain from insulting, assaulting or abusing the complainant; physically and emotionally. The accused submitted that he did sign something but he was not aware that it was a protection order. He alleged that the content of the protection order was never explained to him when he was served with the document. The court at para 11 held that the prosecution should have called the officer and rebutted the contention by the accused that he did not have knowledge of the protection order in which case the protection order would have been valid. As the state failed to rebut the accused’s contention that the protection order was properly served on him, the court held that he could not be convicted for breaching the provisions of the protection order. The court at para 12 held that: ‘This, however, does not mean that the accused stands to be acquitted if there is tangible evidence that he did commit an offence on that day.’ The court held that s 270 of the CPA provides that ‘if the evidence on a charge for any offence not referred to in the preceding sections of chapter 26 thereof (which deals with competent verdicts) does not prove the commission of the offence so charged but proves the commission [of] an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.’ The court in Mazomba at para 12 held that contravention of protection order did fall within the ambit of s 270. When relying on s 270 the prosecution must at the very least have led evidence to the effect that the accused assaulted or had the intention to cause grievous bodily harm if they are faced with a charge that related to contravention of the protection order. To rely on s 270 as a ‘competent verdict’, the essential elements of that crime should be canvassed in the examination of the witnesses and the version must be put to the accused if he elects to testify so that he can have an opportunity to rebut the allegations against him that he for example had the intention to cause serious bodily harm to the complainant. The court at para 15 held that ‘since there is compelling evidence that the accused did assault the complainant on the day in question, we are off the view that the accused should have been convicted of common assault’. Even with the assistance from s 270 a good case can be unravelled by an experienced defence attorney who can exploit the inconsistencies or contradictions in the witness’ testimony pertaining to who actually assaulted the complainant.
The alleged assault on the complainant may be perpetrated while there was alcohol involved, complainant might be a single witness, the incident might have happened during loadshedding or in circumstances where the witnesses could not give an accurate account of the whole incident. The court in Naidoo v S (SCA) (unreported case no 333/2018, 1-4-2019) (Majiedt, Van der Merwe and Mocumie JJA and Carelse and Matojane AJJA) at para 22 held that: ‘In evaluating the evidence, the court must account for all the evidence tendered irrespective of the nature and quality of such evidence.’ The court referred in the same paragraph to S v Van der Meyden 1999 (1) SACR 447 (W) where that court held that: ‘Some of the evidence might be found to be false; some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.’ The court in S v Pistorius 2014 (2) SACR 314 (SCA) at para 27 held that ‘it is trite that contradictions per se do not necessarily lead to the rejection of a witness’ evidence. It is essential that proper weight be accorded to the number, nature, importance and their bearing on the other evidence.’ The court in Maila v S (SCA) (unreported case 429/2022, 23-1-2023) (Mocumie, Carelse and Mothle JJA and Mjali and Salie AJJA) at para 18 held that: ‘Satisfactory in all respects’ should not mean the evidence line-by-line. But, in the overall scheme of things, accepting the discrepancies that may have crept in, the evidence can be relied upon to decide upon the guilt of an accused person.’ The fact that evidence seems inconsistent when cross-examined on and the fact that discrepancies occurred does not mean the evidence cannot be relied on.
It is not in dispute that assault matters are being dealt with daily by our courts. The guidelines by the courts are to bring uniformity in the decision-making and to give the public the sense of confidence in the criminal justice system.
Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.
This article was first published in De Rebus in 2024 (July) DR 24.
