S v Smith (2007/0263) [2008] ZAGPHC 473 (12 December 2008)

S v Smith (2007/0263) [2008] ZAGPHC 473 (12 December 2008)

The court found that the evidence did not establish the crime of attempted murder against Ms Mbonani but proved beyond a reasonable doubt that the accused assaulted her with intent to do grievous bodily harm. Regarding the murder charge, the court held that the State's eyewitnesses were unreliable and that the accused's version of acting in private defence was reasonably possibly true. The contradictions in witness statements were material and negatively affected their credibility. The accused's fear of grievous bodily harm was reasonable, and the State failed to prove beyond a reasonable doubt that the accused exceeded the bounds of private defence. Accordingly, the accused was acquitted...

Citation
[2008] ZAGPHC 473
Parties
Applicant: The State; Defendant: Tebogo Thomas Smith
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
12 December 2008
Case Number
2007/0263
Procedural Posture
Criminal Trial / Final Judgment
Outcome
The accused is acquitted of attempted murder and murder. He is convicted of assault with intent to do grievous bodily harm.
Judges
Meyer
Legal Topics
Private Defence, Assault With Intent to Do Grievous Bodily Harm, Attempted Murder, Murder, Credibility of Witnesses, Contradictory Evidence
Criminal Law Private Defence Assault With Intent to Do Grievous Bodily Harm Attempted Murder Murder Credibility of Witnesses Contradictory Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Tebogo Thomas Smith

Defendant

Procedural Posture

Criminal Trial / Final Judgment

Legal Issues

  1. 1 Whether the accused is guilty of attempted murder of Ms Phindile Mbonani.
  2. 2 Whether the accused is guilty of murder of Mr Wiseman Ntand Makhanya.
  3. 3 Whether the accused acted in private defence when shooting the deceased.

Ratio Decidendi

The court found that the evidence did not establish the crime of attempted murder against Ms Mbonani but proved beyond a reasonable doubt that the accused assaulted her with intent to do grievous bodily harm. Regarding the murder charge, the court held that the State's eyewitnesses were unreliable and that the accused's version of acting in private defence was reasonably possibly true. The contradictions in witness statements were material and negatively affected their credibility. The accused's fear of grievous bodily harm was reasonable, and the State failed to prove beyond a reasonable doubt that the accused exceeded the bounds of private defence. Accordingly, the accused was acquitted...

Court Disposition

The accused is acquitted of attempted murder and murder. He is convicted of assault with intent to do grievous bodily harm.

Orders

  • The accused is found not guilty of attempted murder (count 1), but guilty of assault with intent to do grievous bodily harm.
  • The accused is found not guilty of murder (count 2).