NO: CR 225/96
STATE versus SOLASTIC MASEKA
with intent to do grievious bodily harm, nature of the offence,
nature of the intent some of the factors that help indicate the
graver offence, distinguish common assault. '
THE HIGH COURT OF NAMIBIA
COURT REVIEW CASE NO. 3407/96)
STRYDOM, J.P. et GIBSON, J. Delivered
This is a review.
accused was charged with the offence of assault with intent to do
grievous bodily harm. She pleaded guilty and was questioned in terms
of section 112(1) (b) of the Criminal Procedure Act 51 of 1977. She
was then convicted and sentenced as follows:
pay N$500 or 5 months imprisonment of which N$250 or 2%
imprisonment were suspended for a period of 3 years on condition that
accused is not convicted of an offence of assault or assault with
intent to do grievous bodily harm committed within the period of
facts of the case were that the accused found her live-in lover
sitting with another woman, the complainant, in a room. The
accused assaulted the complainant. She slapped her on her face
once and bit her thumb. No other evidence was led at the trial as to
the extent of the damage or the injuries suffered by the complainant.
reading the record I was of the view that a charge of common assault
rather than the more serious offence of assault with intent to do
grievous bodily harm was revealed.
wrote to the trial magistrate and enquired whether the intent to do
grievous bodily harm was proved on the facts of the case. The trial
magistrate has now replied and has not been able to convince me that
my initial view was wrong.
are a number of factors which may help in determining whether or not
the offence of grievous bodily harm is committed. These factors are
the degree of violence used, the part of the body at which the blows
or blow is aimed, whether or not any weapon was used and the manner
in which the weapon or instrument was used. This list is not
exhaustive. Other factors may well be found. Therefore in order to
distinguish this offence from the lesser offence of common assault it
is essential that the Court inquires from the accused what his
intention was, whether he intended to cause serious bodily harm or as
is sometimes put, such harm as would seriously interfere with bodily
comfort, or find out whether the accused foresaw that serious injury
might result from his actions but persisted in the assault. (See S
1983(4) SA 751; S
1972(1) SA 524.)
this case the trial magistrate asked the accused the
following questions amongst others:
Did you beat Loide Johannes and bite her on the 7th September 1996 at
house 700, Arandis in the district of Swakopmund?
Where on her body did you beat her and bit (sic) her?
I beat her on the face and bit her on her thumb.
With what did you beat her? A: With my hands.
How many times did you beat her and bit (sic) her?
I clapped her once and I also bit her once.
Did she sustain some injuries?
I cannot tell as since we fought I never saw her as to know the
injuries did she sustained."
answers given to some of these questions in this short passage do not
indicate that a very grave or serious assault happened in this case.
The questions put by the trial magistrate do not go anywhere towards
establishing what the intention of the accused was, whether, for
instance, she foresaw that any serious harm might be occasioned by
some of the assault.
view of the inadequacy of the information obtained by the trial
Court, it is impossible to find that there was sufficient evidence to
prove beyond reasonable doubt that the accused had the requisite
intention for this type of offence.
it is my view that the conviction for the offence of assault with
intent to do grievous bodily harm be set aside. However, the facts
have revealed the commission of the lesser offence, that of common
assault. Thus there is substituted for the conviction of assault with
intent to do grievous bodily harm a conviction for common assault.
sentence in the circumstances of the offence which I have found
proved is far too excessive and induces shock. The sentence is
therefore set aside and substituted by a sentence of a fine of $250
(TWO HUNDRED AND FIFTY) or two (2) months imprisonment.