S v Lekgathe

• Jurisdiction: South Africa
• Judge: Hiemstra CJ and Steenkamp J
• Judgment Date: 16 December 1981
• Citation: 1982 (3) SA 104 (B)
• Hearing Date: 26 October 1981
• Court: Bophuthatswana Supreme Court

Steenkamp J:

D The appellant (hereinafter referred to as the accused) was found guilty of one count of assault with the intent to cause grievous bodily harm and one count of common assault, and was sentenced as follows: Count one R300 or 150 days' imprisonment and count two R10 or 10 days' imprisonment.

E The appeal is against both the conviction and sentence on both counts although in this Court the appeal was only prosecuted against the convictions on both counts.

The evidence on the first count reveals briefly as follows. Petrus Maboa, a boy of 11 years old, who is the complainant, testified as follows: Whilst he was at the gate of their home on his way to pay rent, F a certain schoolgirl passed. This girl had sworn at him and then slapped at him. He retaliated. After a while some boys were sent to fetch him and he was taken to a school where he was fastened on a bench by the said boys. He was then hit by the accused and two other persons. The accused is the principal of that school. The accused hit the G complainant more than 20 times with a stick while his pants were taken down. He was hit on his buttocks and also with a bucket on his left eye. The complainant sustained the following injuries, namely: His buttocks were swollen and water was oozing from them and his left eye was swollen. He received medical treatment for three days at the hospital although he was not detained in the hospital. The complainant described H the stick as being 2¼ feet long and 1¾ inch in diameter. The stick was round and had some spikes which were cut off.

Although the complainant was previously a scholar of the school where the accused is the principal, he was not a scholar at the time of the alleged assault, for at that time he was attending the school at Reneilwe while the accused is the principal of the school at Mosaledi. The complainant said that the accused did not have the right to assault him and he was not even informed of the reason why he was assaulted by the accused.

Steenkamp J

Dr Stanford Mojapelo, a private medical practitioner, says in his evidence that he examined the complainant and found extensive bruises with blister formation on his buttocks and also a swollen left eye. He A also found some stripes and swells on the plaintiff's back. The bruises on his back could have been caused by a sjambok or other similar object. The seriousness and identification of the injuries were complicated by the blister formation and the witness could not say whether the whipping was moderate or not.

The accused also testified and alleged that he acts as a parent to the B pupils at school while they are at school and he has the right to chastise pupils if they misbehave. He remembered the complainant and admitted that he was not a scholar at his school on the day when he 'meted out punishment on him'. The reason was that the complainant assaulted a schoolgirl, Pearl Setshedi. He alleged that he administered C only five strokes on the buttocks of the complainant and, having regard to his age, he regarded the punishment as suitable in the circumstances. He denied that he had administered 20 or more strokes or that he had hit the complainant with a bucket. After the complainant was punished, the accused sent him to the police station.

D The accused admitted in cross-examination that he did not see the complainant assaulting the girl, neither did he call the girl in to try to sort matters out. He says the complainant admitted that he thrashed the said girl and, on the strength thereof, he had punished the E complainant. He also admitted that the complainant was fastened to a bench by four assistants while he was administering the strokes with a cane and while the complainant's pants were down. He also admitted that usually pupils are not strapped to a bench and undressed when punishment is meted out. He also admitted that, as a principal, he does not exercise his powers of punishment on children who are not in his school and that he did not even try to find the parents of the complainant.

F Pearl Setshedi was also called as a witness for the defence and she alleged that the complainant assaulted her by throwing stones and glass at her. She then ran to the school and reported that complainant had assaulted her. She said that she at no stage told the accused that she was assaulted by the complainant, although, at a later stage in her G evidence, she admitted that she did in fact inform the accused. She denied that she had at any time assaulted the complainant or that she had sworn at him.

This was the evidence on the first count. The magistrate accepted the evidence of the complainant as corroborated by the medical evidence and H said that he considered the evidence of the defence as improbable, if not false. He found that the accused did not explain all the injuries on the complainant and he also referred to contradictions in the evidence of the accused and Pearl Setshedi.

Mr Thomas, who appeared for the accused, conceded that the common law defence of exclusion of unlawfulness based on authority is absent in this case because the accused admitted that there was not a teacher and pupil relationship with the complainant on 5 May 1980. See R v Scheepers 1915 AD 337.

Steenkamp J

It is further conceded that there is not even a lawful defence in the tribal law of this country. See Schapera A Handbook of Tswana Law and Custom at 181.

A Mr Thomas submitted, however, that the magistrate, despite the evidence of the accused, had accepted that he acted under an error of law, ie that he had believed that he had the necessary authority to administer chastisement.

This argument is not without substance if the finding of the magistrate B was correctly quoted and if there is a factual basis on the evidence for such a finding. The so-called ignorance of the law may in certain circumstances be a factor which excludes dolus.

In S v De Blom 1977 (3) SA 513 (A) at...