S v Mazomba (CA&R2/09) [2009] ZAECBHC 1 (31 March 2009)

S v Mazomba (CA&R2/09) [2009] ZAECBHC 1 (31 March 2009)

The Magistrate erred in convicting the accused of assault with intent to do grievous bodily harm when the charge sheet did not allege such intent and the accused was not given an opportunity to rebut it. The evidence did not establish beyond reasonable doubt that the accused intended to cause grievous bodily harm. The protection order was validly served, but the State failed to prove that the accused knowingly and intentionally contravened it, as the accused's claim that the order was not explained to him was not rebutted. However, the evidence established that the accused committed common assault, which is a competent verdict under section 270 of the Criminal Procedure Act. The sentence...

Citation
[2009] ZAECBHC 1
Parties
Respondent: The State; Applicant: Milton Mazomba
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
31 March 2009
Case Number
CA&R2/09
Procedural Posture
Review Application / Special Review Following Conviction and Sentence in the Magistrate's Court
Outcome
Conviction and sentence for assault with intent to do grievous bodily harm set aside; substituted with conviction and sentence for common assault.
Judges
P.H.S Zilwa, AEB Dhlodhlo
Legal Topics
Domestic Violence Act, Competent Verdicts, Intent in Criminal Liability, Service of Process, Sentencing Principles
Criminal Law Domestic Violence Act Competent Verdicts Intent in Criminal Liability Service of Process Sentencing Principles

Case Brief

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Parties

The State

Respondent

Milton Mazomba

Applicant

Procedural Posture

Review Application / Special Review Following Conviction and Sentence in the Magistrate's Court

Legal Issues

  1. 1 Whether the conviction of assault with intent to do grievous bodily harm was competent on a charge of contravention of a protection order under the Domestic Violence Act.
  2. 2 Whether the protection order was validly served and explained to the accused.
  3. 3 Whether the accused had the requisite intent to violate the protection order or to commit assault GBH.

Ratio Decidendi

The Magistrate erred in convicting the accused of assault with intent to do grievous bodily harm when the charge sheet did not allege such intent and the accused was not given an opportunity to rebut it. The evidence did not establish beyond reasonable doubt that the accused intended to cause grievous bodily harm. The protection order was validly served, but the State failed to prove that the accused knowingly and intentionally contravened it, as the accused's claim that the order was not explained to him was not rebutted. However, the evidence established that the accused committed common assault, which is a competent verdict under section 270 of the Criminal Procedure Act. The sentence...

Court Disposition

Conviction and sentence for assault with intent to do grievous bodily harm set aside; substituted with conviction and sentence for common assault.

Orders

  • The accused is found guilty of common assault.
  • The accused is sentenced to pay a fine of R3000,00 or, in default of payment, to undergo six (6) months imprisonment.