S v Rabako

• Jurisdiction: South Africa
• Judge: Malherbe JP, CJ Musi J and Milton AJ
• Judgment Date: 07 June 2007
• Citation: 2010 (1) SACR 310 (O)
• Docket Number: A234/2006
• Hearing Date: 07 May 2007
• Counsel: RJ Nkhahle for the appellant, instructed by the Legal Aid Board. J Botha for the State.
• Court: Orange Free State Provincial Division

CJ Musi J:

[1] I have had the privilege of reading the judgment prepared in this matter by Malherbe JP. I agree with the facts [1] as set out by him and his finding that no irregularity, that resulted in the appellant's right to a fair D trial being affected, occurred in this matter.

I have only one substantive disagreement with his judgment, and that relates to whether this rape involved the infliction of grievous bodily harm. That difference of opinion means that I have to regrettably and respectfully disagree with him for the reasons stated hereunder.

E [2] Section 52(1) of the Criminal Law Amendment Act 105 of 1997 (the Act) reads as follows:

'(1) If a regional court, following on -

(a)

a plea of guilty; or

(b)

F a plea of not guilty,

has convicted an accused of an offence referred to in -

(i)

Part I of Schedule 2; or

(ii)

. . .

G the court shall stop the proceedings and commit the accused for sentence as contemplated in section 51(1) or (2) as the case may be, by a High Court having jurisdiction.' [2]

CJ Musi J

[3] The regional magistrate was of the view that the appellant committed A rape 'involving the infliction of grievous bodily harm' [3] as mentioned in Part I of Schedule 2 and referred the matter to this court for sentencing. Knoetze AJ, without requesting the regional magistrate for reasons for her findings, [4] was of the view that the rape did not involve the infliction of grievous bodily harm, and proceeded to sentence the appellant to B 20 years' imprisonment. Knoetze AJ's reasoning is set out in Malherbe JP's judgment.

[4] Grievous bodily harm is not defined in the Act. I could not find any South African authority in which the words grievous bodily harm, as C used in this schedule, have been interpreted. In R v Jacobs 1961 (1) SA 475 (A) at 478A Hoexter JA succinctly and correctly distinguishes between intent to do grievous bodily harm and inflicting grievous bodily harm. He states it thus:

'The question whether grievous bodily harm has been inflicted depends D entirely upon the nature, position and extent of the actual wounds or injuries, and the intention of the accused is irrelevant in answering that question.'

[5] In R v Matzukis 1940 SR 76 at 78 - 79 Lewis J, although dealing with assault with intent to do grievous bodily harm, said the following: E

'The crime of assault with intent to do grievous bodily harm is one which is peculiar to South African jurisprudence and is recognised in the penal code of this Colony as an indictable offence distinct from other types of assault. Though it has not its exact counterpart in the systems of Roman Dutch or English law, it bears a closer affinity to the F statutory offence in English law than to anything in Roman Dutch law, and in fact the whole conception of the crime of assault in South African jurisprudence as was pointed out in the case of Rex v Jolly and Others (1923, A.D. 184, Kotze, J.A.) appears to have developed in imitation of the nomenclature and principles of the English system. G

CJ Musi J

A The English Act 24 and 25 (Vict. C. 100, s. 18) creates the offence of unlawfully and maliciously causing grievous bodily harm or discharging firearms with the intent.

It thus differs from the crime as it exists under our system in that it is confined to the actual causation of grievous bodily harm, and to a B limited species of assault (namely by the use of firearms) in so far as the intent to do grievous bodily harm is concerned. Nevertheless the English decisions upon the questions as to what constitutes bodily harm and the intent within the meaning of the statute afford useful guidance. They are referred to in Russel on Crimes (8th Ed., Vol. 1, at pp. 812, 813). In Rex v Ashman (1 F. & F. 88) the following instruction was C given by Willies, J., to the jury:

"You must be satisfied that the prisoner had an intent to do grievous bodily harm: it is not necessary that such harm should have been actually done or that it should be either permanent or dangerous: if it be such as seriously to interfere with comfort or health it is sufficient.' [5]

D Lewis J accepted the approach in R v Ashman (1858) 1 F&F 88 that, for harm to constitute grievous bodily harm, it must be such as seriously to interfere with comfort or health. In fact, the R v Ashman definition became the locus classicus in the United Kingdom.

E [6] The Ashman definition was reconsidered and overturned by the House of Lords in the matter of Director of Public Prosecutions v Smith [1961] AC 290 (HL). Viscount Kilmuir LC, with the agreement of all members of the House, came to the following conclusion:

'My Lords, I confess that whether one is considering the crime of F murder or the statutory offence, I can find no warrant for giving the words ''grievous bodily harm'' a meaning other than that which the words convey in their ordinary and natural meaning. Bodily Harm needs no explanation, and grievous means no more and no less than really serious. In this connection your Lordships were referred to the judgment of the Supreme Court of Victoria in the case of Rex v. Miller G (1951) V.L.R 346, 357. In giving the judgment of the court, Martin J., having expressed the view that the direction of Willes J. could only be justified, if at all, in the case of the statutory offence, said:

"It is not a question of statutory construction but a question of the intent required at common law to constitute the crime of H murder and there does not appear to be any justification for treating the expression 'grievous bodily harm' or the other similar expressions used in the authorities upon this common law question which are cited above as bearing any other than their ordinary and natural meaning.

I In my opinion, the view of the law thus expressed by Martin J. is correct, and I would only add that I can see no ground for giving the words a wider meaning when considering the statutory offence.

CJ Musi J

It was, however, contended before your Lordships on behalf of the A respondent that the words ought to be given a more restricted meaning in considering the intent necessary to establish malice in a murder case. It was said that the intent must be to do an act obviously dangerous to life or likely to kill. It is true that in many of the cases the likelihood of death resulting has been incorporated into the definition of grievous bodily harm, but this was done, no doubt, merely to emphasise that the B bodily harm must be really serious, and it is unnecessary, and I would add inadvisable, to add anything to the expression ''grievous bodily harm'' in its ordinary and natural meaning.'

[7] There is nothing in the Act or schedule that indicates that the words C should be interpreted restrictively or widely. In my judgment the words should be given their ordinary, natural meaning. I agree with the words of Viscount Kilmuir LC, that they only mean really serious. The words 'really serious' should be illuminated, lest it leads to confusion or overemphasis. The New Shorter Oxford English Dictionary Lesley Brown (ed) 1993 defines the word 'really' as '(i)n a real manner; D in reality; actually. Used to emphasise the truth or correctness of an epithet or statement: positively, decidedly, assuredly'. The word therefore does not indicate degree of seriousness. In this context it only serves to emphasise that the harm inflicted must actually be serious. In essence then, if the injury inflicted by the accused on the body of the rape survivor is serious, then it involves the infliction of grievous bodily harm. E A serious injury at one extreme may mean an injury so serious as to endanger life, necessitate hospitalisation or result in permanent loss of bodily or mental faculty; at the other, it may include a wound that heals rapidly. It should not be a trivial or insignificant injury. A serious injury therefore need not necessarily be an injury that is permanent, F life-threatening, dangerous or disabling. Whether the injuries were life-threatening, necessitated hospitalisation or immediate medical attention, will generally be relevant to determine the degree of seriousness, but not necessarily the seriousness itself. Whether an injury is serious will depend on the facts and circumstances of every case.

[8] In S v Ferreira 1961 (3) SA 724 (E) at 725F - G Cloete AJ, albeit G in another context, opined that:

'(O)ne must assess the question of whether the injuries are serious or not directly with reference to the particular victim who has suffered them and not some arbitrarily defined average human being.' [6]

I agree.

CJ Musi J

A [9] In R v Jacobs (supra) Van Winsen AJA, as he then was, stated at 485B - D:

'In deciding whether the Crown has proved the infliction of grievous bodily harm by the accused, the jury would, in my opinion, be entitled to have regard to the whole complex of objective factors involved in the B accused's assault upon the deceased. It could take into consideration the shock which would inevitably result to the deceased by reason of the fact that the accused directed two blows at his face with a knife. It could have regard to the wounds resulting from the stabs in the face, their number nature and seriousness, as well as to the two blows directed to the accused's (sic) stomach, their severity and the results which flowed C from their infliction.'

[10] It seems to me that, in order to determine whether the injuries in a particular case are serious, one has to have regard to the actual injuries sustained, the instrument or object used, the number of the wounds - if D any - inflicted, their nature, their position on the body, their seriousness and the results which flowed from their infliction. It must be remembered that an injury can be serious without there, necessarily, being an open wound. In order to determine this, the judicial...