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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Magistrates ref. no: 93/2000 (KRUGERSDORP)

Supreme Court ref no:1368/2000

Review case no: D4338/1999

DATE:18/01/2001

THE STATE

versus

POPYANA, LYDIA............................................................First Accused

And

MOLEFE, LUCKY.........................................................Second Accused

REVIEW JUDGMENT

WILLIS J:

This case was originally referred to my sister Mailula J for review in terms of Section 302 of the Criminal Procedure Act No. 51 of 1977, as amended.

She requested the learned magistrate to give further reasons and advised the Director of Public Prosecutions accordingly and he was invited to comment on the proceedings. The magistrate has furnished further reasons and the Director of Public Prosecutions has provided a helpful opinion.

As the High Court is presently in recess and Mailula J not on duty this week, the review has now been referred to me.

Both of the accused were charged on two counts of assault with Intent to do Grievous Bodily Harm. The Director of Public Prosecutions of is of the opinion that there was an unfair splitting of charges. The accused were each convicted on one count only.

Accused 1 was sentenced to eighteen months’ imprisonment of which nine were suspended for five years and Accused 2 sentenced to a fine of R1500 or six months’ imprisonment of which R1000 or four months was suspended for five years.

There were a number of unsatisfactory aspects to the complainant’s evidence. In particular, his evidence was inconsistent with the medical evidence given by the doctor who examined the complainant and the evidence of the eye-witness called by the State, Susan Botha. Both of the accused gave a good account of themselves. They also corroborated each other. Accused 1's version is that she acted in self-defence and Accused 2 that he acted in defence of Accused 1 and himself. The magistrate now concedes that the conviction of Accused 2 was wrongly made.

The magistrate, for reasons which I neither understand nor accept, rejected the version of the accused and accepted that of the complainant. In his additional reasons, he submits that Accused 1 exceeded the bounds of self-defence. The Director of Public Prosecutions is of the opinion that Accused 1 did not exceed the bounds of self-defence and that the convictions and sentences of both Accused 1 and Accused 2 should be set aside.

The complainant is a man. Accused 1 is a woman. Accused 2, a man was also attacked. He is apparently smaller than the complainant and fled the scene.

I do not think it is necessary to deal at any length with the question of whether or not the bounds of self-defence were exceeded. One must beware of adopting an armchair view. ( See, for example, S v Ntuli 1975 (1) SA 429 (A) at 437E and S v Motleleni 1976 (1) SA 403 (A) at 406G.) Furthermore, it is trite that the onus is on the State to prove, beyond reasonable doubt, that an accused exceeded the legitimate bounds of self-defence (See, for example, S v Ntuli (supra) at 437F; S v Motleleni (supra ) at 407D and S v Ngomane (supra ) at 863A) Upon a review of the evidence as a whole I am satisfied it is clear that, given the facts of this particular case, the State has failed to discharge this onus. In respect of both accused the conviction and sentence therefore cannot stand.

Regrettably, Accused 2 has already served his sentence.

The following order is made:

1. The conviction and sentence of both Accused 1 and Accused 2 are set aside.

(2) Accused 1 is to be released from custody immediately.

DATED AT JOHANNESBURG THIS 18th DAY OF JANUARY 2001.

N.P. WILLIS

JUDGE OF THE HIGH COURT

I agree.

C. LEWIS

JUDGE OF THE HIGH COURT

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