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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

Case no: CR 47/2016

NOT REPORTABLE

In the matter between:

THE STATE

And

SAUL KUKURI ACCUSED

(HIGH COURT MAIN DIVISION REVIEW REF NO. 649/2016)

Neutral citation: S v Kukuri (CR 47-2016) [2016] NAHCMD 212 (22 July 2016)

Coram: LIEBENBERG J and SHIVUTE J

Delivered: 22 July 2016

Flynote: Criminal Law – Assault with intent to do grievous bodily harm- The offence is not just constituted by the intention to cause harm- But by the intention to cause grievous bodily harm – Magistrate misdirected himself by failing to ask the accused questions pertaining to his intention to cause grievous bodily harm – Conviction and sentence set aside – Matter remitted back to magistrate to question the accused pertaining his intention to cause grievous bodily harm.

Summary: The accused was convicted of assault with intent to do grievous bodily harm after the court invoked the provision of s112 1(b) Act 51 of 1977. The magistrate failed to ask the accused questions pertaining to his intentions to do grievous bodily harm to the complainant but instead asked whether it was the accused’s intention to cause harm to the complainant’s body. The offence is not just constituted by the intention to cause harm but by the intention to cause grievous bodily harm. The magistrate misdirected himself in convicting the accused. The conviction and sentence are set aside. The matter is remitted back to the magistrate in order for him to question the accused pertaining his intention to cause bodily harm.

ORDER

(a) The conviction is set aside as well as the sentence.

(b) In terms of s 312 of Act 51 of 1977 the matter is remitted back to the magistrate in order for him to ask the accused pertaining his intention to cause grievous bodily harm.

(c) When sentencing the accused, the court should take into consideration the portion of the sentence the accused had already served.

REVIEW JUDGMENT

SHIVUTE J, (LIEBENBERG J CONCURRING)

[1] The accused was charged in the magistrate’s court Okahandja with assault with intent to cause grievous bodily harm read with the provisions of the Domestic Violence Act 4 of 2003.

[2] He pleaded guilty and the court invoked the provisions of S112 (1) (b) of the Criminal Procedure Act 51 of 1977. He was convicted as charged and sentenced to N$5000 (five thousand) fine or 12 months’ imprisonment.

[3] I directed a query to the magistrate as to how he satisfied himself that the accused had the intention to cause grievous bodily harm because when he was questioned whether he had the intention to cause grievous bodily harm he denied such an intention.

 [4] The magistrate responded as follows:

‘ I wish to say that I was so satisfied accused had the intention to cause bodily harm to the complainant as it is reflected in his response on the court record. Just to assist the Honourable Judge, I have underlined that part with a red pen, may be it was just an oversight from the judge when reading or perusing the record.’

[5] Referring to the relevant part of the record, in an attempt for the magistrate to establish the accused’s intention, the following questions were asked and I quote (verbatim):

Q, ‘Do you that hitting someone with a stick, can injury to that person?

A. yes

Q. Is it correct then to say that you intended to cause bodily harm to her?

A. It was a small stick and it was night time and I did not have the intention to cause harm to her body I intended to beat her on her back not her body.

Q. What is te difference of you beating her on her back and you beating her on the    head is that still not the same intention to harm he?

A. I agree that my intention was to cause harm her body.’

[6] Although the accused agreed that his intention was to cause harm to her body, he did not agree that his intention was to cause grievous bodily harm. All the elements of an assault (common) are incorporated in the crime of assault with intent to do grievous bodily harm namely:

(a) The application of force (or the inspiring of a belief that force is to be applied).

(b) Unlawfulness and

(c) Intention however, an additional intention to cause grievous bodily harm is another requirement. In other words there must be an additional intention to cause serious injury not just an intention to cause bodily harm. Whether grievous bodily harm is inflicted on the victim is immaterial for the purpose of determining liability. However, this is a factor to be considered in mitigation of sentence.

See S v Dube 1991 (2) SACR 419 (ZS)

[7] Although the learned magistrate believed that he had questioned the accused pertaining to his intention to do grievous bodily harm and that the accused admitted to have had the intention to cause grievous bodily harm, unfortunately this is not the case. The requirement of the crime is not just intention to cause harm but such intention must be that of causing grievous bodily harm. It follows that the conviction cannot be allowed to stand.

[8] In the result the following order is made.

(a) The conviction is set aside as well as the sentence.

(b) In terms of s 312 of Act 51 of 1977 the matter is remitted back to the magistrate     in order for him to ask the accused pertaining his intention to cause grievous bodily harm.

(c) When sentencing the accused, the court should take into consideration the portion of the sentence the accused had already served.

NN SHIVUTE

Judge

JC LIEBENBERG

Judge

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