S v Cloete (Case No.: CR 184/07) [2008] NAHC 24 (21 January 2008);


Full judgment
                                                               CASE NO.: CR 184/07

In the matter between:



                  (HIGH COURT REVIEW CASE NO.: 461/07)
Delivered on:    2008-01-21
[1]      The accused was convicted in the Kamanjab magistrate's court on a charge of assault with intent to do grievous bodily harm. He was sentenced to a fine of N$1000 or 6 months imprisonment of which N$500 or 3 months imprisonment was conditionally suspended for three years. When the matters came on review, the learned Reviewing Judge posed the following questions to the trial magistrate:

"Please provide me with your reason why the element of intention was not covered by your questioning. Do we know why the accused assaulted the complainant?

In addition the accused categorically stated that he had no intention to cause complainant grievous bodily harm. How then can you be satisfied that the accused admitted all the allegations in the charge sheet?"

The learned magistrate responded as follows:

"The Magistrate was of the view that the element had been covered by the follow up question:

"By assaulting complainant on his arms with a police button what did you think was going to happen to him?" to which accused answered "I knew he would be injured" This satisfied the court that although he disputed actual intention, legal intention had been established and the court proceeded on that basis. The magistrate is indebted to any other directions from the honourable judge."

(The word "button" should presumably be "baton").

[2]      The section 112(1)(b) questioning of the accused, who pleaded guilty, went as follows:

"Court:  Did anyone influence you to plead guilty to this charge?

Accused:         No.

Court:   Were you at Brunofarm on 6/10/06 in the district of Outjo?

Accused:         Yes.

Court:   What wrong did you do whilst you were there on the day in question?

Accused:         I assaulted Otto Geingob.

Court:   How did you assault him?

Accused:         I hit him on his hands and arms with a police button.

Court:   How many times?

Accused:         Three times.

Court:   Did he sustain injuries?

Accused:         Yes.

Court:   What injuries did he sustain?

Accused:         The arms were swollen.

Court:   Was it your intention to cause him grievous bodily harm?

Accused:         No.

Court:   By assaulting him on his arm with a police button what did you think was going to happen to him?

Accused:         I knew he would be injured but I was angry.

Court:   Did you know that it was wrong and unlawful to assault a person and cause him grievous bodily harm.

Accused:         Yes I knew even thereafter I felt bad about it.

Court:   Did you have a right to act in that manner?

Accused:         No.

Public Prosecutor: State wishes to produce the medical report.

Court:   Was it served on accused?

Public Prosecutor: No.

Court:   Can it be shown to the accused and read to him?

Accused:         I have read and understand the report.

Court:   Do you have any objections to the production of that report to the court for the court to note the injuries sustained by the complainant as examined by the doctor?

Accused:         No objections.

Court:   Medical report marked exhibit 1.

Court:   Do have any defence to this charge?

Accused:         No.

Court:   Satisfied that accused is admitting the charge and accused is found guilty as charged.

[3]      From the accused's answers it is clear that he denied having the intention to injure the complainant grievously or seriously. He only foresaw that he would injure the complainant, he did not admit he foresaw that he would injure complainant grievously or seriously.

[4]      The medical report does not show any injuries on the complainant's arms. The superficial laceration on the right hand appears to have been caused by a knife (according to the information provided by the police officer on the first page of the medical report), but the accused was not charged for an assault using a knife. In all the circumstances the learned magistrate could not have properly concluded that accused did have legal intention to commit grievous bodily harm. The accused does however admit all the elements of the crime of assault. In my view the sentence is appropriate and need not be changed, except for the condition of suspension.

[5]      I therefore make the following order:

1.       The conviction is set aside and substituted with a conviction of assault.

2.       The sentence is set aside and replaced with the following:

N$1000 (one thousand Namibian Dollars) or 6 (six) months imprisonment if which N$500 or 3 (three) months imprisonment is suspended for 3 (three) years on condition the accused is not convicted of assault committed within the period of suspension.


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