S. v. ACKERMAN.
(CAPE PROVINCIAL DIVISlON.)

1971.	September 7, 30. BEYERS, J.P., and TEBBUIT, A.J.
Criminal law.-Assault.-Use of a dangerous weapon.-Sec. 4 of Act 71 of 1968 applicable.-Necessary to mention in charge sheet that the State will contend that the section is applicable.

Where accused are charged with assault in districts and in cases in which section 4 of Act 71 of 1968 is applicable, the charge sheets should allege that the State will contend that the provisions of this section should be applied to the case.

Appearl against a conviction in a magistrate's court. Facts of no im-portance have been omitted.
J. I. Immerman,.for the appellant.
P. W. Du Preez le Roux, for the State.

Cur. adv. vult.

Postea (September 30th).

TEBBUTT, A.I. : Appellant a coloured male, 19 years of age, was charged together with another coloured male, James Francis, 18 before the additional magistrate of Wynberg with assault with intent to do grievous bodily harm. He pleaded not guilty, but notwithstanding that, he was convicted as charged. He was found to be a person over the age of 18 years, that he had used a dangerous weapon in the assault and that the provisions of sec. 4 of Act 71 of 1968 were therefore applicable and the magistrate in terms of the provisions of that section, sentenced him to six years' imprisonment. He now appeals against both the con­ viction and sentence.

[The Honourable Judge anailysed the evidence and continued as follows.]

In my opinion the State did not prove beyond a reasonable doubt that 

appellant had had a knife or that he had stabbed the complainant. The magistrate's finding that he took part in the stabbing is, in my opinion, not justified on the evidence.
The magistrate however also said that in his opinion the appellant is also connected with the crime on the doctrine of common purpose. He says:
"Further it must be remembered that appellant and his companions acted as a group and there is sufficient proof that they had a common purpose to injure complainant and his friends and appellant was at least an accomplice to the assault on the complainant."

Mr. Le Roux who argued this appeal on behalf of the State, based his argument mainly on common purpose. The question is, therefore, whether the State has proved beyond a reasonable doubt that the accused was involved in the common purpose. In other words, was he associated with a common behavior?
[The Honourable Judge analysed the evidence, referred to certain decided cases and continued as follows.]

I am, therefore, of the opinion that the State did not prove a common purpose beyond a reasonable doubt and that the appellant should get the benefit of that doubt. I am of the opinion, that he is also not guilty of common assault on account of the fact that he did not start the fight with the fists. He challenged complainant to fight and the complainant accepted that challenge.

In my opinion, the conviction must therefore be set aside. We were also requested by Mr. Le Roux, to express our views on the fact that it was not stated in the charge sheet that the provisions of sec. 4 of the Dangerous Weapons Act, 71 of 1968 could have been applicable and that appellant was also not informed about this during the trial. In R; v. Zonele and Others, 1959 (3) S.A 319 (AD.) the Appellate Division dealt with an amendment to the Criminal Procedure Act whereby provisions were made for the imposition of the death sentence in cases of robbery or housebreaking where aggravating circumstances were present and at p. 323 RAMSBOTTOM, J.A, said the following: "                            "

(Also see S. v. Moloi, 1969 (4) S.A. 421 (AD.) at p. 424).
The provisions of sec. 4 of Act 71 of 1968 rulso refer to a punishment in cases where the circumstances, mentioned therein, are present. I am therefore of the opinion, that the dicta of RAMSBOTTOM, J.A, in Zone/e's case are applicable and that the charge sheet should state that in the event of the accused being convicted the State will ask that the penal provisions contained .in the said section should be applied. An accused should be informed fully of the case he must meet, It clearly appears from the pro­ visions of sec. 315 of the Criminal Procedure Act (see also Ex parte The Minister of Justice: in re Rex v. Masow and Another, 1940 AD. 75). In SOUTH AFRICAN LAW REPORTS (1972) (1)
(Translation) Masow's case it was decided that it is unnecessary to. Refer in the charge sheet to the section containing the penalty for the offence. This is not the case with sec. 4 of Act 71 of 1968. It defines certain elements of the offence itself, i.e. that the accused must be a person over the age of 18 years, and that he must have used a weapon as defined in that Act in the assault. This the State must prove before the penalty clause of the section becomes applicable and the accused must be informed of the State's intention to prove that against him so that he knows the case he must meet. This is especially the case because sec. 4 is only applicable to certain areas, proclaimed in the Government Gazette. The accused is, therefore, in my opinion, entitled to know whether it is alleged that the Act is applicable to the district in which he allegedly committed the crime. It is an essential element of the charge against him.

In my opinion, charge sheets shou d. where accused are charged with assault in districts and in cases where sec. 4 of Act 71 of 1968 applies, aver that the State will submit thatthe provisions of sec. 4 of Act 71 of 1968 must be invoked. The appeal succeeds and the conviction and sentence are set aside.

BEYERS, J.P., concurred.
Appellant's Attorney: Frank Fabian.