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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO:

REVIEW NO: 20021774

DATE DELIVERED: 17 April 2003

In the matter between:

THE STATE

and

ZANDISILE NDYUMBU

______________________________________________________________________________________JUDGMENT____________________________

PLASKET AJ:

[1] The accused was charged, in the Magistrate’s Court, East London, with the offence of attempted murder. The charge sheet alleged that, on or about 14 September 2002, he had unlawfully assaulted one Sonwabo Mayezana by stabbing him in the stomach with a knife, and that he had done this with the intention of killing the complainant.

[2] The accused pleaded guilty to the charge. He was duly questioned by the magistrate in terms of s112 of the Criminal Procedure Act 51 of 1977 and then convicted on his plea. He was sentenced to three years imprisonment.

[3] Kroon J queried the conviction. In his query, he stated: ‘The record does not reflect that the accused admitted that he had the intention to kill; on the contrary, he alleged that he was “playing” with the complainant when he stabbed him’. The magistrate’s response to this query was this: ‘His reply shows that the killing cannot be said to be that of playing as it shows that in picking a sharp instrument – a knife -- stabbing a person with it – he should have realised by doing so that could result in that person being injured or killed – it is then that the dolus eventualis doctrine comes into play.’

[4] The only indication of the accused’s intention was his answer to the magistrate’s question as to why he had stabbed the complainant. The accused said: ‘We were drunk, we were playing. I picked up a knife. I stabbed him with it.’ The magistrate then asked the accused how drunk he had been to which he replied that he ‘was not so drunk’.

[5] The magistrate, in effect, drew an inference from the above answers that the accused had the necessary intention in the form of dolus eventualis. He was not entitled to do this. S v Naidoo¹ makes it clear that an explanation in terms of s112 is not evidence from which inferences may be drawn.

[6] The accused cannot be said to have admitted all of the elements of the offence of attempted murder. He should not have been convicted on his plea of guilty. As a result, the conviction is set aside. The matter is referred back to the magistrate so that the matter can commence afresh.

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C Plasket

Acting Judge

I agree.

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JC Froneman

Judge

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