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IN THE HIGH COURT OF SOUTH AFRICA

TRANSVAAL PROVINCIAL DIVISION

THE STATE

V

FRANCINAH (ROSINA) MSIZA

Review Judgment

High Court Ref 1 532

Magistrate's s/n no 06/08

Case No A85/08

This is an automatic review

The accused was charged in the Magistrates' Court for the District of Mbibane held at Vaalbank on a count of Assault with intent to do grievous bodily harm. The particulars of the charge read

"IN THAT upon about 29 January 2008 and at or near Vaalbank in the District Regional Division of Mbibane the accused did unlawfully and intentionally assault Florence Busi Khanyile by hitting her with a handbag and fists and open hands, with the intent of causing him/her grievous bodily harm,"

After several postponements she was called upon to plead and pleaded not guilty.

To be observed is this, that after the charge was read to her and the magistrate enquired whether she understood the charge, she replied, "'There arc some elements I do not understand in this matter". The magistrate did not enquire as to what she did not understand and insisted on an immediate plea. She pleaded not guilty and elected to make a statement explaining her plea. Quite clearly her plea was guilty to a common assault. The question of her intent to cause grievous bodily harm was not examined and 1 doubt whether the accused was appraised of this element of the offence of which she was charged. This becomes important in relation to the sentence of twelve months imprisonment half of which was conditionally suspended for five years which was subsequently imposed upon her, she being a woman 57 years of age with no previous convictions.. The accused and the complainant who are sisters met each other casually one morning "on the road". The accused greeted the complainant but received no response. There was a background of a family ailment over some blankets. How exactly matters reached the point where the accused attacked the complainant is explained differently by each of them.

It is common cause that the accused initiated the assault which took place as described in the charge sheet. So described the facts would not seem to disclose an intention to do grievous bodily harm. A handbag is not a dangerous weapon, while open hands and even balled fists used to inflict light injury do not necessarily lead to the conclusion of such an intention.

The complainant in her evidence said that she was kicked by the accused. This was not alleged in the charge or admitted by the accused in her plea of guilty and the explanation thereof given by her. The prosecutor however seized on this allegation and put several questions of a leading nature to the complainant to amplify the complainant's assertion in this regard. Eventually he succeeded in eliciting from her that the broken leg which she sustained was caused by the kicking.

The complainant said in so many words that neither the handbag nor the accused's hands open or balled in a fist caused any injury which could conceivably be termed grievous.

The grievous injury is the broken leg. How the complainant sustained this injury is not clear. It may have been caused in the fall but there is no medical evidence as to the cause of the fracture. A doctor's report was put in as evidence without calling the doctor himself The report confirms a break in the neck of the femur but does not explain how the injury was sustained. It certainly does not confirm that the injury could have been caused by assault as described in the charge sheet. In order to sustain a conviction of an offence where a specific intent is an essential element, the facts alleged must indicate such intent. The Magistrate has relied heavily on the injury to complainant's leg to convict the accused of the more serious offence of assault with intent to do grievous bodily harm and to impose a sentence which is entirely inappropriate. There is nothing to suggest that the serious injury was caused by the handbag or the accused's hands. On the contrary the complainant's suggestion is that the break in her femur was caused by being kicked by the accused. But the charge sheet does not allege that the accused kicked the complainant and the complainant's evidence on this point, which was not admissible, was challenged by the accused's denial.

There is a likely possibility, approaching a probability that the fracture

to the femur was caused by the complainant's fall. There is nothing to

show that the accused contemplated or should have expected the

serious outcome of her minor assault on her sister.

The conviction cannot stand. Both it and the sentence must be set

aside.

Steps have already been taken for the accused to be released from custody.

The order of this court is that

1. The conviction of the accused in the abovementioned case is set-aside together with the sentence imposed consequent thereon.

2. In place thereof the accused is found guilty of assault common and sentenced to a fine of R500 in default of payment of which six months imprisonment, all of which is suspended for five years on condition that the accused is not hereafter found guilty assault with intent to do grievous bodily harm committed during the period of suspension.

Sapire AJ

Acting Judge of the High Court

I Agree

Ebersohn AJ

Acting Judge of the High Court

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