S v Mkutoane (386/2010) [2010] ZAFSHC 151 (25 November 2010)

S v Mkutoane (386/2010) [2010] ZAFSHC 151 (25 November 2010)

The accused's answers during her plea established the elements of necessity: she was repeatedly attacked, acted to avert imminent harm, and did not exceed the threat posed by the complainant. The magistrate failed to properly consider this defence and misdirected herself materially in convicting the accused. As a result, the conviction cannot stand and must be set aside. The matter is referred back for a new trial before a different magistrate.

Citation
[2010] ZAFSHC 151
Parties
Applicant: The State; Respondent: Jane Mkutoane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 November 2010
Case Number
386/2010
Procedural Posture
Criminal Review / Review of Conviction
Outcome
Conviction set aside; matter referred back for trial de novo before another magistrate.
Judges
Mocumie, Radebe
Legal Topics
Necessity Defence, Assault With Intent to Do Grievous Bodily Harm, Misdirection by Magistrate
Criminal Law Necessity Defence Assault With Intent to Do Grievous Bodily Harm Misdirection by Magistrate

Case Brief

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Parties

The State

Applicant

Jane Mkutoane

Respondent

Procedural Posture

Criminal Review / Review of Conviction

Legal Issues

  1. 1 Whether the accused's plea and evidence established a defence of necessity.
  2. 2 Whether the magistrate misdirected herself in failing to consider the defence of necessity.
  3. 3 Whether the conviction should be set aside due to material misdirection.

Ratio Decidendi

The accused's answers during her plea established the elements of necessity: she was repeatedly attacked, acted to avert imminent harm, and did not exceed the threat posed by the complainant. The magistrate failed to properly consider this defence and misdirected herself materially in convicting the accused. As a result, the conviction cannot stand and must be set aside. The matter is referred back for a new trial before a different magistrate.

Court Disposition

Conviction set aside; matter referred back for trial de novo before another magistrate.

Orders

  • The conviction is set aside.
  • The matter is referred back to the Magistrate Court for a trial de novo before another Magistrate.