S v Aipumbu (CR 31/2025) [2025] NAHCNLD 51 (25 April 2025)

Case Title:

The State v Erastus Aipumbu

CR: 31/2025

High Court Ref No:

66/2025

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

25 April 2025

Neutral citation: S v Aipumbu (CR 31/2025) [2025] NAHCNLD 51 (25 April 2025)

It is hereby ordered that:

1. The conviction and sentence are set aside.

2. In terms of s 312 of the Criminal Procedure Act 51 of 1977, as amended, the matter is remitted to the magistrate in order for him to ask the accused pertaining his intention to cause grievous bodily harm.

3. When sentencing the accused, the court should take into consideration the portion of the sentence which the accused had already served.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)

[1] The matter from the Magistrates’ court of Outapi, is before this court for review in terms of s 302 of the Criminal Procedure Act 51 of 1977, as amended (the CPA).

[2] The accused was charged with Assault with the intent to do grievous bodily harm, read with the provisions of the Combating of Domestic Violence Act 4 of 3003 (the Act). He pleaded guilty and, after questioning by the magistrate in terms of s 112(1)(b) of the CPA, was convicted and sentenced to 24 months’ imprisonment.

[3] The following queries were sent to the magistrate:

‘1. The accused was not questioned on the intention to cause grievous bodily harm during the assault. Without such, how was the Magistrate satisfied of the guilt of the accused on the charge of assault with the intent to do grievous bodily harm?

2. Was the period spent in custody whilst trial awaiting considered by the Magistrate when imposing the sentence of 24 months’ imprisonment?’

[4] The Magistrate conceded that, due to an oversight during questioning, the intention to cause grievous bodily harm was not covered. Furthermore, that the period that the accused spent in custody, prior to the finalization of the matter, was not considered during sentencing.

[5] It is well established that all the elements of assault applies to this offence with the additional element that there must be intent to do grievous bodily harm. When applying section 112 (1) (b) of the CPA, the presiding officer should ensure that the accused admits all the elements of the offence. It is inconsequential whether accused in fact inflicted bodily harm on the complainant, it is the intention to do grievous bodily harm that is relevant.¹

[6] In the present case, the accused was charged with the offence of assault with intent to do grievous bodily harm. The questioning of the accused by the magistrate did not establish the intention of the accused at the time of the assault. Since the allegation according to the charge was that the accused had the intention to cause grievous bodily harm, that aspect was an essential element of the offense that was left unproven.

[7] Turning to the second part of the query, it is also well established that the period spent trial awaiting is to be considered by the sentencing court in order to impose a fair sentence. The accused in this matter was not granted bail and spent a little over five months in custody before a plea was taken. Bail was objected to by the State whilst the accused, on his first appearance, indicated that he will plead guilty to the charge. The magistrate conceded that he failed to consider that aspect before sentencing the accused. That amounts to a misdirection.

[8] In light of the above, the conviction and sentence cannot be allowed to stand and the following orders are made:

1. The conviction and sentence are set aside.

2. In terms of s 312 of the Criminal Procedure Act 51 of 1977, as amended, the matter is remitted to the magistrate in order for him to ask the accused pertaining his intention to cause grievous bodily harm.

3. When sentencing the accused, the court should take into consideration the portion of the sentence which the accused had already served.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None