S v Nambela

• Jurisdiction: South Africa
• Citation: 1996 (1) SACR 356 (E)

S v Nambela
1996 (1) SACR 356 (E)

1996 (1) SACR p356

Citation	1996 (1) SACR 356 (E)
Court	Eastern Cape Division
Judge	Leach J
Heard	October 26, 1995
Judgment	October 26, 1995

Flynote : Sleutelwoorde

B Indictment and charge — Splitting of charges — Accused convicted of contravening both ss 27(2) and 27(2)(a) of former Police Act 7 of 1958 — Accused hindering police in exercise of their duties by fleeing — During attempt to apprehend fleeing accused, policeman kicked by accused — Not possible to lay C down general, inflexible rule as to when splitting of charges present — Whether such present depending on common sense view and what is fair to accused and State — Kicking of policeman not to be separated from overriding intention to flee — Accused thus acting with single intent and conviction of assault on policeman set aside on review.

Headnote : Kopnota

D It is virtually impossible to lay down a general and inflexible rule as to when there is a splitting of charges or convictions. Whether there has been such an improper duplication of charges ultimately depends on a common sense view of the matter and of what is fair to both the accused and the State in the light of the established facts.

E In the instant case the accused had, inter alia, been convicted of contraventions of both ss 27(2) and 27(2)(a) of the former Police Act 7 of 1958. The accused had tried to flee after he was found in possession of dagga. During this attempted escape, the accused had kicked one of the policemen trying to apprehend him. The Court found F that, even if the accused's actions in kicking the policeman and fleeing could be regarded as separate, he had nonetheless acted with the single and continuous intention to escape from the police. It could thus not be argued that he had a separate and distinct intention to assault the policeman trying to apprehend him. The Court accordingly set aside the conviction relating to the assault of the policeman.

Case Information

Review.

Judgment

Leach J:

The accused was convicted on three counts: firstly of having contravened s 4(b) of Act 140 of 1992 by being in possession of 10 grams of dagga, secondly of having contravened s 27(2)(a) of the Police Act 7 of 1958 by hindering a policeman in H the exercise of his duties and, thirdly of having contravened s 27(2) of the latter Act by having assaulted a policeman. On the count of possession of dagga the accused was sentenced to a fine of R600 or 120 days' imprisonment conditionally suspended for four years while on the last two counts he was sentenced to six months' imprisonment totally suspended for five years on certain conditions. G

I The evidence establishes that dagga was found on the accused's person when confronted by two policemen in his home. Accompanied by the accused, the police then proceeded to a small garden immediately adjacent to the accused's house where they found dagga plants being cultivated. While the two policemen were in the process of pulling up the dagga plants, the accused ran off and a policeman, one Constable Wilson, set off in hot pursuit. After having run down a path the accused crawled J through

1996 (1) SACR p357

Leach J

A very dense bush. The magistrate accepted that, while...