S v Johannes
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | JT Salionga J and DF Small AJ |
| Judgment Date | 27 October 2021 |
| Docket Number | CR 23/2021; 5717/2021 |
| Hearing Date | 27 October 2021 |
| Court | Northern Local Division, Oshakati |
| Citation | 2021 JDR 3022 (NmO) |
Salionga J (Small AJ concurring):
This matter came before this court on automatic review in terms of section 304 of Act 51 of 1977. The accused stands charged in the Magistrate's court Oshakati with assault with intent to cause grievous bodily harm. He pleaded guilty, was questioned in terms of s 112 (1) (b) of the Criminal Procedure Act and was convicted as charged. He was subsequently sentenced to 10 months' imprisonment.
From the questioning it is apparent that no question was asked regarding accused's intention when he assaulted the complainant. A query was directed to the magistrate that:
'The accused is charged with an offence of assault with intent to do grievous bodily harm. How did the learned magistrate satisfy herself that the accused intended to cause grievous bodily harm if no question was asked in that regard?'
The learned Magistrate responded that 'with due respect I can be directed on how to ask questions on intention of the accused in future.'
The offence in casu is assault with intent to do grievous bodily harm. Accused must have intent to cause serious or grievous bodily harm to the complainant in order to be convicted as charged. When applying section 112 (1) (b) of Act 51 of 1977, the presiding officer should ensure that accused admits all the elements of the
2021 JDR 3022 p3
Salionga J (Small AJ concurring)
offence including intention. It is immaterial whether accused in fact inflicted bodily harm on the complainant or the complainant sustained serious injuries. In determining intent, the nature of harm is not necessarily important. (See C R Snyman Criminal Law 6th Edition, at p 453)
To illustrate my point the following questions were asked and I quote the relevant portions verbatim from the review record:
'Q: …
A : …
'Q: What did you do?
A: Because I stabbed a person.
Q: With what did you stab him?
A: With an okapi knife.
Q: Did he sustained any injury
A: Yes he sustained a wound
Q: Did you know that to stab a person with a knife that person could be injured?
A: Yes.
Q: And you know that to stab a person with a knife is wrong and unlawful?
A: Yes
Q: …
A: ….
Q: And you knew it is punishable offence?
A: Yes.'
In this matter, the state alleges that accused intended to cause grievous bodily harm nevertheless such intent was not covered during questioning. Even if accused admitted to have stabbed the complainant and he knew that to stab a person...
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