NO.: CR 09/2011
THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI
the matter between:
COURT REVIEW CASE NO.: 02/2011) CORAM: LIEBENBERG,
J. Delivered on: 28.03.2011
The accused appeared in the Magistrate's Court, Tsumeb, and pleaded
guilty on a charge of assault with intent to do grievous bodily harm.
After being questioned pursuant to the provisions of s 112 (1)(b) of
the Criminal Procedure Act, 1977 (Act 51 of 1977), he was sentenced
to 12 months imprisonment.
When the matter came before me on review, I directed the following
query to the magistrate:
court's questioning what the accused's intention was when he
assaulted the complainant, he replied: 'It was anger'. The accused
thereby did not admit that he had the intention to cause grievous
bodily harm, an element of the offence charged. Therefore, could the
court have been satisfied that 'the accused has admitted all the
allegations of the offence of assault with intent to do grievous
The s 112 (1)(b) questioning by the magistrate was as follows:
anybody persuaded or promised you anything should you plead guilty?
Q: On the
22/11/2010, were you at or near Oshivelo or at or near Cham-Cham
village in this
district? A: Yes. Is (sic) where I am staying. Q: What did you do to
plead guilty? A: I assaulted someone, my wife.
Q: It is alleged
that you assaulted Lydia Phillipus with fists and a knob-kierie. Do
dispute that? A: I do not dispute it. Q: What
was your intention to do so?
Q: Do you know
that your act was wrong, unlawful and you can be punished?
Q: Where on her
body did you beat the Complainant?
On her forehead and on her right side down her eye and then she ran
away, I beat her on her right ribs and she fell down." (Emphasis
The magistrate in his reply was of the view that anger "cannot
be treated as defence or denial to the element of intention."
magistrate, respectfully, misses the point made in the query namely,
whether or not the accused during the s 112 (1)(b) questioning
had the intention to cause grievous bodily harm when he assaulted the
From the answers given by the accused, it is evident that he
assaulted the complainant by hitting her with a knob-kierie on her
head and ribs. However, in order to be convicted of the offence of
intent to caused grievous bodily harm
his plea of guilty, the court was required to question the accused on
his state of mind; particularly, whether he acted with intent
cause grievous bodily harm. The magistrate was not entitled to infer
from the accused's answers that he indeed had the required intent, as
the accused's answers on questions by the court do not constitute
'evidence' from which the magistrate could draw inferences regarding
elements of the offence not admitted by the accused.1
Had the accused in this instance stood trial, the court, in its
assessment of the evidence, would have been entitled - in the absence
of direct evidence - to make inferences regarding the accused
person's state of mind during the commission of the assault; by
looking at the nature of the weapon or instrument used; the degree of
force applied in wielding the weapon or instrument; where on the body
the assault was
v Naidoo 1989
(2) SA 114 (A).
at; and the injuries actually sustained, if any. See: S
the complainant having been struck on the head twice with a
knob-kierie and once in the ribs, there is nothing on record
regarding the force applied and whether injuries were inflicted.
State v Sylvia Ahveendo , a
judgment I wrote, the following was said at p 2, para :
Where an accused is charged with assault with intent to do grievous
bodily harm, the bodily harm intended must be "really serious
bodily harm" as was said in Director
of Public Prosecutions v Smith, 
3 All ER 161 (HL) at 171. What is required is that there must have
been the intent to do more harm than inflicting the "casual and
comparatively insignificant and superficial injuries which ordinarily
follow upon an assault." See: S
v Mbelu, 1966
(1) PH H 176 (N). This view is consistent with what was said by this
Court in S
v Tazama 1992
NR 190 namely that, the fact that a complainant suffers serious
injury as a result of an assault is not in itself evidence of the
intention to do grievous bodily harm."
the answers given by the accused during questioning by the court a
is clear that the accused did not admit that he had acted with the
required intent and hence, could not have been convicted on his mere
plea of guilty. Had the magistrate - as it appears from his reply -
inferred from the accused's answer that he became angry when
assaulting the complainant and thus acted with intent to cause
grievous bodily harm, then he misdirected himself. In the
circumstances, the conviction has to be set aside.
In the result, the Court makes the following order: 1. The conviction
and sentence are set aside.
(1) PH H176 (N).
Case No. CR 05/2010 delivered on 23.04.2010.
The matter is remitted to the Magistrate's Court, Tsumeb in terms of
s 312 (1) of Act 51 of 1977 with the direction to comply with the
provisions of s 112 (1)(b) or to act in terms of s 113, as the case