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South Africa Judgment

Free State High Court, Bloemfontein

S v Mofokeng [2010] ZAFSHC 7 (4 February 2010)

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Source document

01

Holding and result

The magistrate's doubt regarding the correctness of the conviction was justified, as both a state witness and a defence witness corroborated the accused's version of self-defence. The evidence did not exclude the reasonable possibility that the accused acted in self-defence. Therefore, the conviction for assault with intent to do grievous bodily harm could not be sustained and was set aside before sentencing.

Court disposition

Conviction set aside.

Orders

  • The conviction of Meshack Motlane Mofokeng for assault with intent to do grievous bodily harm is set aside.

02

Material facts

Parties

The State

Applicant

Meshack Motlane Mofokeng

Respondent

03

Procedural history

  1. Posture

    Review Application / Pre Sentencing Review

04

Questions and positions

Legal issues

Party arguments

Applicant
The State relied on the complainant's serious injuries and the accused's admission of using a dangerous weapon. However, the accused consistently maintained that he acted in self-defence, and this version was corroborated by both a state witness and a defence witness.
Respondent
The accused argued that he acted in self-defence, and his version was supported by the evidence of Me Mmamsi and Mr Zwene. The magistrate did not reject this evidence, raising doubt about the correctness of the conviction.

05

Court’s reasoning

  1. 01

    Criminal Procedure Act 51 of 1977, section 304A

    A conviction should not stand where the evidence supports a reasonable possibility that the accused acted in self-defence.

  2. 02

    S v Mofokeng [2010] ZAFSHC 7

    Where the evidence of self-defence is corroborated and not rejected, the conviction must be reconsidered.

06

Ratio, limits and disposition

Ratio decidendi

The magistrate's doubt regarding the correctness of the conviction was justified, as both a state witness and a defence witness corroborated the accused's version of self-defence. The evidence did not exclude the reasonable possibility that the accused acted in self-defence. Therefore, the conviction for assault with intent to do grievous bodily harm could not be sustained and was set aside before sentencing.

Obiter and limits

  • The review procedure under section 304A of the Criminal Procedure Act allows for convictions to be set aside before sentencing where there is doubt about their correctness.
  • Magistrates should carefully consider corroborating evidence when assessing claims of self-defence.

Court disposition

Conviction set aside.

  • The conviction of Meshack Motlane Mofokeng for assault with intent to do grievous bodily harm is set aside.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2010] ZAFSHC 7

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC

OF SOUTH AFRICA

Review Case No. : 24/2010

In the case between:-

THE

STATE

and

MESHACK

MOTLANE MOFOKENG

___________

CORAM: HANCKE, J et KRUGER, J

JUDGMENT BY: HANCKE, J

DELIVERED ON: 4 FEBRUARY 2010

______________

[1] The accused was convicted of assault with intent to do grievous bodily harm. Before sentencing, the magistrate seemed to be in doubt of the correctness of the conviction. He therefore sent the record of proceedings on review in terms of section 304A of the Criminal Procedure Act, no 51 of 1977 with the request that the conviction be set aside.

[2] The magistrate, in his request, stated the following:

“Although the Complainant sustained serious injuries as noted on page 10 of the record, and further that the Accused had indicated that the weapon used is a very dangerous and sharp instrument, Accused had been saying that he was acting in self defence. After the Accused was found guilty, the court found that the matter needs to be send for review before sentence.”

[3] It appears from the record of the proceedings that the one state witness, Me Mmamsi corroborated the accused’s version that he acted in self-defence. The same applies to the defence

witness, Mr Zwene whose evidence was not rejected by the magistrate.

[4] Having regard to the record of the proceedings and the totality of the evidence, I am of the view that the magistrate’s request is justified in the circumstances.

[5] Accordingly, the conviction is set aside.

_____

S. P. B. HANCKE, J

I agree.

_____

A. KRUGER, J

/EM

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Mofokeng [2010] ZAFSHC 7

Case cited

Criminal Procedure Act 51 of 1977

Legislation

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