S v Hlongwa

• Judge: Stegmann, J
• Judgment Date: 14 March 2002
• Citation: 2002 JDR 0295 (T)
• Docket Number: LB251/01
• Hearing Date: 14 March 2002
• Court: Transvaal Provincial Division

Stegmann J:

[1] This is a review in the ordinary course, in terms of s 302(1)(a)(i) of the Criminal Procedure Act, 1977 (Act No 51 of 1977). On 6th November 2001, the accused was sentenced in the Magistrate's Court for the district of Lydenburg on each of two counts of assault with intent to do grievous bodily harm, on which he had been convicted. On count 1 he was sentenced to two years' imprisonment; and on count 2, to a further three years' imprisonment.

[2] The particulars alleged in count 1 were that on 17th February 2001, and at

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Mashishing, the accused had unlawfully and intentionally assaulted Moses Ndlozi ('the first complainant'), by stabbing him with a knife with the intention to inflict grievous bodily harm. In count 2 it was similarly alleged that on 3rd March 2001, and at Mashishing, the accused had unlawfully and intentionally assaulted Jim Ndinisa ('the second complainant') by stabbing him with a broken bottle with intention to inflict grievous bodily harm.

[2] The accused, having had his rights in respect of legal representation explained to him, chose to defend himself without legal assistance. He tendered a plea of Guilty on each of the two counts. The magistrate, after questioning the accused, was not satisfied that he had admitted all of the elements of each of the offences. In terms of s 113, he entered a plea of Not Guilty in respect of each count, and required the prosecutor to prove his case.

[3] It is not clear either from the record of the magistrate's questioning of the accused, or from the magistrate's judgment, why the magistrate doubted that the accused had admitted all of the elements of the offences. However, the transcriber has indicated that parts of the accused's plea explanation were 'inaudible'. Moreover, when the prosecutor questioned the first complainant about the incident on 17th February 2001, he put to him that the accused had alleged that whilst a group of them had been gambling with dice, the first complainant had first picked up R50 that belonged to the accused and had then assaulted the accused. The first complainant denied these allegations. It seems that the magistrate may have accepted that the accused had indicated (inaudibly to the transcriber) that, in the case of the first count, he had been acting in self-defence against an attack upon himself by the complainant.

[4] Similarly, the prosecutor put to the second complainant that the accused had said

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that the incident on 3rd March 2001, giving rise to the second count, had in effect started when the second complainant had assaulted the accused. Again, it seems that the magistrate probably accepted that the accused had indicated in his plea explanation (again inaudibly to the transcriber) that he had been acting in self-defence. In any event, the magistrate entered pleas of Not Guilty on each count and the trial proceeded on that basis.

The first count

[5] The first complainant testified that on 17th February 2001, he and others, including the accused, had been gambling with dice when the accused had picked up a R2 coin that belonged to him (the first complainant). The first complainant had remonstrated with the accused, and the accused had responded by breaking a bottle and stabbing him with it. This evidence did not accord with the allegation in the charge that the accused had stabbed the first complainant with a knife.

[6] As already mentioned, the prosecutor asked the first complainant about the version that the accused had evidently put forward in the course of his plea explanation. The proposition put by the prosecutor was to the effect that the accused had admitted that he had stabbed the first complainant with both a knife and a bottle; and that the reason for his having done so had been that the first complainant had taken up R50 that the accused had put down and that had still belonged to the accused. The complainant denied this version.

[7] When invited to cross-examine the first complainant, the accused said that he had no questions for him. The magistrate asked the accused whether he agreed with the evidence of the first complainant, and the accused said that he did not. The magistrate

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then informed the accused that it would be unfair if, at a later stage, the accused were to allege that the first complainant had not told the truth without having put any questions to him. To that extent the magistrate explained the purpose of cross-examination to the accused. The accused evidently grasped the point because he then changed his mind and said that he did indeed have questions for the witness.

[8] However, the accused did not then put his own version to the witness. He did not disagree with the way in which his case had been put to the witness by the prosecutor. Presumably he was satisfied that his case had been put as he intended it to be put.

[9] In answer to questions by the magistrate, the first complainant stated further that the accused had taken a beer bottle, had broken it and had stabbed him with the broken end, twice on the head and twice on the neck. This evidence produced a further proposition from the accused. It was to the effect that the accused had only struck the first complainant once on the neck and not four times as alleged by him. This can only be understood as an admission by the accused that he had indeed struck the first complainant on the neck with a broken bottle, but once only. The accused did not make any suggestion that the alleged 'assault' by the first complainant on the accused, the nature of which was never specified, had been such as to justify 'self-defence' by means of a blow to the neck with the jagged end of a broken bottle.

Exhibit A: Form J88 relating to the first complainant

[10] The evidence of the first complainant also contained the following passage:

'Did the police give you the form J88 to complete? – – – Yes.

Your worship, the state wishes to hand over the J88 and (inaudible). The J88 reads that the complainant sustained an 8 cm wound at the left ear and secondly, that he also sustained 2.2 cm on the left forehead, that he sustained 3.5 cm on the left temporal region, I don't see it clearly, the fourth one is that he sustained 4, 15 cm

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base of neck left side on the left-hand side of the neck.

COURT: The court has a discretion in terms of section 212, subsection 12 of the Criminal Procedure Act to call the doctor who examined Mr Moses Ndlozi. This certificate may be handed in without calling the said doctor. Do you have any objection against the handing in of this medical certificate without calling the doctor?

- – -The court must call the doctor.

And the medical certificate of Moses Ndlozi handed in as Exhibit A – – – Presently my left hand doesn't work well.'

[11] A question has arisen as to whether the magistrate rightly or wrongly admitted Exhibit A as evidence without requiring the doctor who apparently completed and signed it to be called as a witness to establish the truth of its contents. As indicated in the passage quoted above, the magistrate considered that s 212(12) of Act 51 of 1977 afforded him the necessary discretionary power, and he decided to exercise what he believed to be his discretion by admitting the certificate without requiring the doctor who signed it to be called as a witness.

[12] In their memorandum, the DPP's representatives have submitted that the magistrate erred in law in admitting the Form J88 in evidence. They contend that inasmuch as the document is not an affidavit, it does not comply with the requirements of s 212, and that subsection (12) is only applicable to documents contemplated by other subsections of s 212.

[13] What must not be overlooked is that s 212 admits of the proof of certain facts not only by affidavit but also, in certain specified cases, by means of an unsworn certificate. The two sub-sections that appear to be relevant in the present case are subsections (4) and (12). [1]

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[14] The document in question is the standard form of certificate, known as Form J88, that has for many years been issued by the State for use by District Surgeons, Medical Officers and Medical Practitioners to record their findings after conducting a medical examination in a case of alleged assault or other crime. It is headed:

'REPORT ON EXAMINATION IN A CASE OF ALLEGED ASSAULT OR OTHER CRIME THIS FORM IS TO BE USED BY DISTRICT SURGEONS, MEDICAL OFFICERS AND MEDICAL PRACTITIONERS MAKING THE EXAMINATION'

The contents of the form begin with the words:

'THIS IS TO CERTIFY that at the request of ......'

The form proceeds to indicate the general nature of the examination to be conducted, and to leave blank spaces for the person conducting the examination to fill with his or her findings relating to the matters in question. It is quite clear that the form is intended to be completed as an unsworn certificate by a District Surgeon, Medical Officer or Medical Practitioner relating to the condition of a person alleged to have been involved in some way in a crime.

[15] The particulars called for by Form J88 include:

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'Bruises and abrasions (if any) ......

Wounds (if any) ...........

Fractures or Dislocations (if any) .........

Any other injuries State of organs of generation (if examined) .......

Microscopical or other special examination of stains, etc'

The examination that is called for is therefore plainly one that would generally require some skill in anatomy and, if pathology has a branch relating to trauma (as I understand the position to be), in that branch of pathology.

[16] However, Form J88 does not make provision for the person completing it to

'[allege] that he is in the service of the State or of a provincial administration or is in the service of or is attached to the South African Institute for...