NOT
IMPORTANT

CR
86/2010

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

CHARLES
DAVID EICHAB

(HIGH
COURT REVIEW CASE NO.: 1689/2010)
CORAM: Muller,
J et Botes, AJ

DELIVERED
ON: 03/11/2010

REVIEW
JUDGMENT

BOTES,
AJ

[1]
The accused, a first offender, was arrainged and convicted in the
magistrates court Katutura, Windhoek on a charge of assault with
intent to do grievous bodily harm.

[2]
The accused pleaded guilty to the charge and after questioning by the
magistrate in terms of section 112(1) (b) of the Criminal Procedure
Act, Act 51 of 1977 was convicted as charged.

[3]
The accused was sentenced to N$600.00 (six hundred Namibian Dollars)
or 6 (six) months imprisonment on the 31^st
of May 2010.

[4]
Despite already having been sentenced on 31 May 2010 the record was
only received by the Registrar of this court on 26 October 2010 for
review. Due to this inordinate delay I have decided not to direct
enquiries to the magistrate to advance reasons, if any, why the
accused was convicted of assault with intent to do grievous bodily
harm and not on common assault only.

[5]
The relevant and material portion of the proceedings conducted in
terms of section 112(1) (b) reads as follows:

"CRT:
It is alleged that you assaulted Rosie Van Der Byll, do you agree or

dispute
it? ACC: I agree.

CRT:
It is further alleged that you beat him with clenched fists in the
face. Do

you
agree or dispute this? ACC: I agree.

CRT:
How many times did you beat him with your fists?

ACC:
I beat him once and then he fell backwards.

CRT:
Did you know it is wrong and unlawful to assault another person and
that, if arrested, you could be punished for your action by a
competent court of law?

Acc:
I knew it was wrong.

CRT:
Why did you assault Mr. Van Der Byll?

ACC:
The complainant slapped me in the face after we quarrelled. I got
angry and beat him with a clenched fists. CRT: Did the complainant
sustain any injuries as a result of the assault? ACC: He had a bruise
on his right cheek and there was blood flowing from the

cut
that he sustained on the cheek."

[6]
It is obvious from the admissions reflected on the record that
accused admitted hitting the complainant once in his face with
clenched fists after being provoked, resulting therein that
complainant sustained a bruise and cut to his cheek.

[7]
No admission was sought by the magistrate as to the force of the blow
nor as to the nature of the injuries sustained. The magistrate also
did not enquire whether the accused admits that in perpetrating the
assault, he intended to inflict grievous bodily harm on the
complainant.

[8]
Snyman, Criminal
Law, fourth
ed, p 435 describes the difference between assault with intent and
common assault as follows:

"All the
requirements for an assault set out above apply to this crime, but in
addition there must be intent to do grievous bodily harm. Whether
grievous bodily harm is in fact inflicted on Y is immaterial in
determining liability³⁷
(though it is usually of great importance for the purposes of
sentence). It is simply the intention to do such harm that is in
question. Whether X in fact had intent to do grievous bodily harm is
a factual question. Important factors which may indicate that X had
such an intention are, for example, the nature of the weapon or
instrument used, the way in which it was used, degree of violence,
the part of the body aimed at, the persistence of the attack, and the
nature of the injuries inflicted, if any.³⁸

[9]
In my view the admissions made by accused does not form an acceptable
basis from which an inference can be drawn that the accused in
hitting the complainant once with clenched fist(s) in complainants
face intended to inflict grievous bodily harm on the person of
complainant. The magistrate therefore only should have convicted the
accused on common assault or should have made further enquiries in an
effort to establish whether the accused in fact admits the necessary
form of intent.

[10]
For the above reasons the following order is made

1. 
   The
   conviction of the accused on assault with intent to do grievous
   bodily harm is set aside.

   
   

2. 
   The
   accused is convicted of the offence of common assault.

   
   

3.
The sentence originally imposed is set aside and substituted with the
following sentence. The accused is sentenced to N$300.00 (three
hundred Namibian Dollars) or 3 (three) months imprisonment. The
sentence is

antedated
to 31/05/2010.

BOTES,
AJ

I
agree.

MULLER,
J