Whisky bottle assault case gets tricky
A fight over a bottle of whisky led to a man being charged twice over the same assault.
|||Johannesburg - A fight over a bottle of whisky led to a man being charged twice over the same assault - first with assault and later with murder. “It’s double jeopardy.” argued the accused.
“No, it’s legal because it’s two different offences.” said the Supreme Court of Appeal.
Mathews Lelaka and Kgotatso Moshe were on their way from a tavern in Ga-Rankuwa in North West on February 10, 2013.
Moshe grabbed a bottle of whisky from Lelaka and had a swig. Lelaka, furious, grabbed it back and smacked Moshe over the head with the bottle. Moshe ended up in hospital.
Four days later, Lelaka pleaded guilty to assault with intent to do grievous bodily harm (GBH) and was convicted the same day. The case was then postponed for two weeks to get the record of Lelaka’s previous convictions. But by the time they got back to court for the sentencing, Moshe had died.
A post-mortem report confirmed that had died from severe blunt force head trauma which was linked to the assault.
The prosecution now wanted to change the charge to murder.
But Lelaka, who was in custody, wanted to be sentenced for the lesser assault conviction instead and argued that he couldn’t be recharged for the same assault for which he had already been convicted.
The magistrate got confused, recused herself from the matter and told them all that Lelaka would have to be tried all over again.
It took her seven months to send the case to the Mahikeng High Court for special review, asking the high court to set aside her conviction of Lelaka on the grounds that the proceedings hadn’t been in accordance with justice.
Lelaka then appealed to the Mahikeng High Court. The High Court set aside the magistrate’s court conviction, leaving the way open for Lelaka to be charged with murder.
This case should serve as a warning to public prosecutors in general, particularly where seriously injured complainants are still hospitalised. Whilst the State acted within its right by prosecuting the accused as soon as possible for assault GBH, one wonders why “The State did not wait to receive all the medical reports about the condition of the complainant.” said the Mahikeng High Court judge.
The judge said the conviction had been so fast that the medical report hadn’t been handed in.
“It is unthinkable how the State was able to determine that the offence was assault GBH without medical evidence. A further question that arises is what happened to the police investigation that was supposed to be conducted. Would it not have revealed that the complainant was moribund.” said the High Court judge.
Lelaka, still trying to avoid the murder charge, headed to the Supreme Court of Appeal (SCA).
It is a general rule of the common law that a person may not be punished twice for the same offence, said the SCA in its judgment last month, adding that this was entrenched in the constitution. This principle is grounded in the maxim that no person is to be brought into jeopardy more than once for the same offence. This principle finds expression in the rule of law that if someone has been either convicted or acquitted of an offence he or she may not later be charged with the same offence or with what was in effect the same offence.
But the law says this doesn’t apply if it was impossible at the initial trial to have brought the more serious charge that was later brought.
It follows that a conviction for assault is no bar to a prosecution for murder or culpable homicide where the victim has died since the conviction for the fact of the death has altered the essential nature of the crime. Put somewhat differently, the death is a new factor said the SCA.
The SCA sent the matter back to the Ga-Rankuwa Magistrate’s Court for the assault trial to be finalised before another magistrate.
louise.flanagan@inl.co.za
The Star
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