R v Maguire

• Jurisdiction: South Africa
• Judge: Beadle CJ and Quènet JP
• Judgment Date: 04 July 1969
• Citation: 1969 (4) SA 191 (RA)
• Hearing Date: 04 July 1969
• Court: Appellate Division

H Beadle, C.J.:

In this matter the appellant was convicted of an assault committed upon his wife and sentenced to be cautioned and discharged. He now appeals against that conviction.

The appellant and the complainant (his wife) both gave evidence of what can only be described as a 'brawl' between them and, as is to be expected, their versions as to precisely what happened differ in many respects. The magistrate, however, quite properly, in my view, accepted the evidence of the appellant as to what had happened and in so far

Beadle CJ

as the evidence as it appears on the record is concerned, he would certainly appear to have been the more reliable witness of the two. The case must be approached, therefore, on the basis that the appellant's A version of what happened is the version to be accepted. From this, it appears that the parties had quarrelled in the past and there apparently had been occasions when they had slapped each other. On the day in question or, rather, the night in question, round about midnight, the complainant came from her bedroom into one of the living rooms where the appellant was at the time and started an argument with him about some B trivial subject. The appellant did not wish to argue with his wife and he decided to follow a course which he had followed on previous occasions in similar situations, that of simply turning his back on her and walking away. He proceeded to do this, whereupon his wife followed him and slapped him from behind across his face. According to her own C evidence, she slapped with all her strength and this slap dislodged the appellant's glasses. The appellant turned round and, in what obviously was an act of retaliation, slapped the complainant across the face with the back of his hand. This slap also was delivered with some force and it was sufficiently severe to cause the complainant to fall to the ground. Further struggles followed after this but I do not think D what transpired after this is particularly relevant because such of the suggested assaults of the appellant after this can, I think, correctly be described as completely 'trivial'.

The whole case turns, therefore, on the question as to whether or not, in the circumstances which I have outlined, the appellant should h ve E been convicted of assaulting his wife. The magistrate considered the defence of de minimis non curat lex and rejected it because he did not consider that the assaults committed by the appellant...