THE HIGH COURT OF SWAZILAND
THE HIGH COURT OF SWAZILAND
AT MBABANE REV. CASE NO. 279/94
the matter between:
accused was convicted of assault with intent to do grievous bodily
harm. He was sentenced to 18 months imprisonment, 6 months of which
were conditionally suspended for 2 years.
appears from the record that the offence was committed on the 25th
January 1993 and that the accused was only tried on the 1st February
1995. No reasons were advanced for the delay in the prosecution.
Although the accused was not held in custody pending his trial it is
still a matter for concern that delays of this nature in relatively
straightforward cases are allowed without any question by the courts.
An accused person is entitled to a
within a reasonable time. The fact that Swaziland does not have a
Bill of Rights guaranteeing such a right is no reason for allowing
what took place in this case. As it turned out, the accused pleaded
guilty and only one witness was called.
have some difficulty with the conviction of the accused. The charge
against the accused was one requiring a specific intent. It was
incumbent upon the prosecution to place sufficient evidence before
the court for the necessary conclusion to be drawn that the accused
acted with the specific intent of occasioning grievous bodily harm.
The weapon which was used in the assault was not exhibited at the
trial. The doctor who examined the complainant was not called to give
evidence. His report was handed in as part of the evidence. The
report reflects that the complainant had a stabwound to the deltoid
and one to the left knee. The extent and gravity of the injuries is
not set out in the report. The doctor set out in the remarks column
of the report that the injuries were consistent with an assault.
was pointed out by Miller J in S v MBELU 1966(1)PH H176(N) that in
cases of assault with intent to do grievous bodily harm there must be
an intent to do more than inflict the casual and comparatively
insignificant and superficial injuries which ordinarily follow upon
an assault. There must be proof of an intent to injure and to injure
in a serious respect. The learned judge continued to state
court ---- usually has to rely on four main factors which provide the
index to the accused's state of mind. I am not suggesting that these
are exhaustive; I do suggest that in the large majority of cases
these are the factors which provide a guide to the accused's state of
mind. They are, first, the nature of the weapon or instrument used;
secondly, the degree of force used by the accused in wielding that
instrument or weapon; thirdly, the situation on the body where the
assault was directed, and fourthly, the injuries actually sustained
by the victim of the assault.
evidence, if available, plays an important part in a consideration of
the third and fourth factors and the need to lead such evidence has
been stressed in numerous cases. See S v. MAPASA 1972(l)SA 524, S
V.BOKANE 1975(2)SA 186. In the Zimbabwean Supreme Court decision in S
v. MELROSE 1985(1) SA 720 BARON AJA observed at 724 (H-1)
this court and the High Court have said repeatedly in a case of any
seriousness, that the doctor be called to amplify and explain the
contents of his report and generally to assist the court in an
assessment of the nature and seriousness of the injuries and the
inferences to be drawn from the presence or absence, as the case may
be, of injuries. One knows that doctors are busy people but this is
no excuse for failing to place before the court all the relevant
evidence; and the viva voce evidence of doctors in, for instance,
homicide, rape and serious assault cases is very relevant indeed.
Prosecutors should regard it as the rule rather than the exception
that the doctor's evidence is necessary, and magistrates
that it is their right, and indeed duty, in any case where they
believe that viva voce evidence may be of assistance to require the
attendance of the doctor.
am aware that the accused in the present case pleaded guilty to the
charge. It was however incumbent upon the crown in proving the
commission of the offence to tender evidence within the guidelines
stated. It was also essential for the magistrate to explain the
meaning of the charge to the accused and ensure that he understood it
as such and was not simply pleading guilty to an assault.
conviction on the charge of assault with intent to do grievous bodily
harm cannot stand. The accused is found guilty of common assault. The
court is in the circumstances at liberty to interfere with the
sentence. The assault took place on Christmas day. The accused had
been drinking and had taken offence at the complainant's refusal to
accept a drink which the accused had offered the complainant. The
complainant's refusal was based on religious grounds of which the
accused was not aware. The misunderstanding stemming from this
continued for the greater part of the day, resulting in the assault.
The accused is a first offender. He had the case hanging over his
head for over a year. This must clearly have had an unsettling effect
on the accused in organising and conducting his affairs. He pleaded
guilty to the assault. These are factors which can and should be
taken into account in deciding on an appropriate sentence. A wholly
suspended sentence is in my view an appropriate one. The accused is
sentenced to 6 months imprisonment. The whole of the sentence is
suspended for two years on condition that the
is not convicted of any offence of which violence to the person of
another is an element, committed during the period of suspension.