THE HIGH COURT OF SWAZILAND
CASE NO.54 01
the matter between:
THE APPELLANT MR. HLOPHE
THE DEFENDANT MR. P. DLAMINI
appellant appeared before the Senior Magistrate sitting at Manzini
charged with the offence of assault common and in that upon or about
the 22nd June, 2000 at A6 Fire Station he did unlawfully and
intentionally assault Evart Motsa by manhandling him and threatening
then and there to throw him out of a watch tower, causing the said
Evart Motsa to believe the said accused intends and had the means
forthwith to carry out his threats.
appellant pleaded not guilty to the charge. At the close of the trial
he was found guilty and sentenced for E 100.00 fine.
appellant appeals against the conviction on the following grounds:
"1. The court aquo erred in law and in fact in finding that the
appellant by uttering the words complained of intended assaulting the
court aquo erred in law in finding that the complainant had been
assaulted in as much as the complainant had himself noted that but
for the presence of the other employees he would have been assaulted.
This is more so because:
of the requirements of assault by threats is that the complainant
must believe that the alleged assailant has the means and ability to
effect his threats there and then.
belief by the complainant ought to be reasonable.
the alleged assault amounted to a deminimis non-curat lex and as such
ought not be enforced by the courts."
learned Magistrate accepted the evidence of PW1 about what preceded
the threats. It was his finding that PW2 corroborated PWl's evidence.
I can find no misdirection on the part of the Magistrate thus far.
Magistrate also found on the evidence that the appellant admitted
having uttered the words that he was going to throw the complainant
out of the watchtower and appellant admitted having touched the
complainant on his shoulders and uttered the threats but jokingly so
said the appellant. As he uttered the words he was holding the
complainant by his clothes.
magistrate found that in view of the fact that the appellant was
unhappy about the failure of the complainant to carry out his
instructions it was unlikely that he could have patted the
complainant in the matter described by him. On the basis of the
evidence accepted by the learned magistrate, he rejected the
appellant's story. When the manner was argued before us, Mr. Hlophe
referred us to page 4 of the typed record of proceedings where the
following question appears:-
said you believed that he was not going to effect his
because of the other people there".
this was an unfair question, a reference to the record which
the witness' evidence in chief; does not contain any such
The above question and its answer should have been
as an unfair question.
the question was not disallowed. At page 6 of the recording
proceedings Mr. Hlophe puts the following question.
have told the court already that you believed
the accused could not throw you out because of the presence of
not correct. I told the court that I thought he did
carry out his threat because of the presence of the other people".
Hlophe not satisfied with the witness' answer puts another
at the bottom of page 6 which reads as follows:
minute ago you realised that he was not going to
you out because of the presence of the others".
was at that stage that the public prosecutor objected to the question
said that was not what the witness said. The public prosecutor
the witness had said he thought that the accused did not carry
his threat because of the presence of the others in the tower, not
he believed that the accused was not going to throw him out.
court sustained the objection.
either Mr. Hlophe or the Crown prosecutor was not satisfied with the
contents of the record the proper procedure would have been to make
an application timeously for the amendment of the record while there
was a chance that the presiding officer might still have an
independent recollection of the evidence which was given before him
(see R VS BRUCE 1954(3) SA 243 (C). We are in respectful
with the law applied in the above case. As this was not done, we are
bound by the contents of the record as it stands.
now turn to the other legal issues raised during arguments. Mention
was made of the de minimis rule "de minimis non curat lex".
translated this rule means:- "the law does not concern itself
to the learned author HUNT - SA CRIMINAL LAW AND PROCEDURE VOL.11
COMMON LAW CRIMES quoting from Smith and Hogan page 265 of Strauss
345 "there is an implied consent to the degree of contact which
is necessary or customary in everyday usage". This would cover
cases of a friendly handshake, slap on the back, tug at the sleeve
etc: The above are incidences which properly fall under the de
minimis principle. For this rule to apply the assault should be
completely trivial so that for all intents and purposes it is
disregarded by law. Pointing a loaded firearm at another person in a
jovial and joking gesture would certainly amount an assault and the
rule would not apply. R VS DU PLESSES 1956(1) PH H H 115 SA.
there to be a punishable assault some degree of force is not always
necessary. A mere touch may in the circumstances not be trivial and
technically the slightest contact may constitute an assault. In R VS
HERBERT 1900 10 CTR 424 - the accused pulled complainant's hat off
his head. This amounted to an assault.
essential thing about assault is the inspiring of an apprehension of
can be done by an act or gesture. If the person against whom the act
or gesture believes upon reasonable grounds that the person doing the
act or gesture has the present ability to effect his purpose an
assault has taken place!
the instant case in view of the circumstances of the case it would
appear that the complainant believed that the appellant would carry
out his threat and this would constitute an assault in law. The
learned Senior Magistrate was correct in the conclusions he arrived
at and I would not find any fault in his reasoning. The appellant by
grabbing the complainant and uttering the words "I will kill
you" had intended to assault the complainant. The evidence of
FW1 established that the complainant and the appellant were in the
watchtower, which is about 50 metres high. The appellant grabbed the
complainant by his clothes on the chest and pulled him towards him
and said he was going to kill the complainant and throw him out of
the afore-going reasons I would propose that the appeal be dismissed,
and it is so ordered.