S v Nkhumeleni

• Jurisdiction: South Africa
• Judge: Klopper ACJ and Van Der Spuy AJ
• Judgment Date: 17 February 1986
• Citation: 1986 (3) SA 102 (V)
• Hearing Date: 17 February 1986
• Court: Venda Supreme Court

Van der Spuy AJ:

This matter came before me on review from the Honourable Mr Mahada, the learned magistrate for the district E of Vuwani. The accused was charged with the crime of assault with intent to do grievous bodily harm in that on 26 October 1985 and at or near Tsianda Location in the district of Vuwani, the accused did wrongfully and unlawfully and maliciously assault one John Makhado Mulaudzi by stabbing him with a knife, F thereby inflicting wounds and injuries on the said Mulaudzi with intent to do grievous bodily harm.

The accused was further charged with contravening s 2 (1) (a) of the Animals Protection Act 71 of 1962 with the offence of cruelty to an animal in that on the same day and at the same place and in the course of the same attack upon the said Mulaudzi, he did unlawfully and intentionally stab the said G Mulaudzi's dog with a knife on its back.

The accused pleaded not guilty to both charges and was invited by the magistrate in terms of s 115 of the Criminal Procedure Act 51 of 1977 to state the basis of his defence and he then stated in regard to the first count that he stabbed the complainant with a knife more than once, but did so in H selfdefence.

The learned magistrate took the precaution of recording a formal admission by the accused of this fact in terms of s 220 of Act 51 of 1977.

In regard to the second count the accused pleaded that he acted "in necessity" in that the complainant set the dog upon him.

I He states that he stabbed the dog once with a knife. Accused's admission in this regard was similarly recorded in terms of s 220 of Act 51 of 1977.

Complainant gave evidence of the stabbing and it is unnecessary for the purposes of this review to animadvert to all the facts that emerged from his testimony. It suffices to say that there was testimony that a knife was used and that he tried to grab the knife from the assailant, that is the accused. He also J states in regard to the attack on the dog that the dog tried

Van der Spuy AJ

A to protect him. The accused was cross-examined concerning the attack on the dog to the effect that the dog was set upon him, but that was denied by complainant. At the end of the evidence of the complainant the State prosecutor handed in a medico-legal report in regard to which the record reflects the following:

B 'Public prosecutor hands in medical report after reading contents thereof.

Handed in as exh A in terms of s 212 (4) of Act 51 of 1977 with leave of accused.'

The State then closed its case. The accused gave evidence. He was cross-examined by the public prosecutor and it is clear from the evidence which I need not to discuss in detail that he C exceeded the bounds of self-defence in stabbing the complainant. He also admits stabbing the dog but he persisted in his version that the complainant had set "it on me to bite me".

When receiving the record, I transmitted to the learned magistrate and the Attorney-General a request on the following aspects of the case:

'1.0

Should the accused have been charged and found guilty on count 2 as a separate offence, since the evidence D discloses that the stabbing of the dog was part of the attack on the complainant?

2.0

Was there sufficient evidence of the nature and extent of the injury to the dog for the court to convict on count 2, even if it could have been the subject-matter of a separate charge? The only evidence of injury is at page 1 of the transcript of the record where the complainant states that E the dog was stabbed 'on its back'.

3.0

In view of the aforementioned, and in view of the fact the the accused states that he stabbed at the dog when the dog 'came for him' in...