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You and Your Rights

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You and Your Rights

Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.

Assault

Using force against another

Assault, which most often takes the form of 'common assault', consists of intentionally and unlawfully applying force to the person of another, either directly or indirectly, or in inspiring a belief in the victim that force is immediately and inevitably about to be applied to him or her. When the assault is physically indecent, the aggressor commits the crime of indecent assault, and when assault is committed with the intention of perpetrating a crime such as murder, rape, robbery or the rendering of grievous bodily harm, it is the more serious offence of assault with intent.

In certain circumstances the application of force is not an unlawful assault. In common law and subject to certain limitations, parents have the right to chastise children by administering moderate corporal punishment. The administration of corporal punishment in schools throughout the country is widespread although it is only supposed to take place under strictly controlled conditions. Legislation before parliament in 1996 proposed outlawing this practice entirely.

Members of the police may use reasonable force to overcome resistance to lawful arrest. Participants in lawful sporting contests (such as boxing or wrestling) may use force against an opponent within the rules of the sport. A person may also use force to ward off an attacker.

Intention is an essential element of the crime of assault. Aggressors must actually desire to use force or foresee the possibility that their conduct might result in the application of force.

If a man swings a golf club negligently and hits his friend, the crime of assault is not committed, although the friend may still claim monetary compensation for the pain he experiences, any disability he suffers as a result and medical expenses he may have to incur in order to obtain treatment for his injury.

When, on the other hand, a man shoots at his victim in a crowded street and the bullet ricochets and wounds a passing pedestrian, the gunman will be guilty of assault even though he did not aim to hit the injured person; it is assumed that he must subjectively have foreseen the possibility of killing or injuring someone other than his intended victim.

Physical assault requires the application of a measure of force, but it does not have to be direct.

The following examples of indirect force have been held to constitute assault:

  • Derailing a train and causing injury to passengers travelling in it;
  • Frightening a horse so that it runs away with its rider;
  • Cutting a hole in ice in front of a skater, causing him or her to fall in;
  • Deliberately administering alcohol to a child until he or she is semiconscious;
  • Creating a 'booby trap';
  • The administration of poison.

Assault does not have to be physical at all - it can occur through the causing of fear, if there is a threat of immediate personal harm and the threatened person believes that the aggressor is in a position to carry out this threat. 'Psychic' assault is threatened physical assault. The threat must be of immediate harm. However, a conditional threat can also be an assault. A man who stood at the door of another's hut and threatened to kill him if he came out committed assault (R v Dhlamini, 1931).

The fear must be induced by the words or gestures of the accused. If the victim is not aware of the aggressor's conduct, there can be no 'psychic' assault.

Case History - The vengeful husband

A young man returned home from duty with the Defence Force to find that his wife had been unfaithful. After drinking at a hotel, he became involved in a brawl with his wife's lover and fired at him. The first shot missed but a second ricocheted and wounded an innocent woman. The accused was charged with assault with intent to murder in respect of the man and common assault in respect of the woman.

  • His conviction on both charges by a regional court was upheld by the Transvaal Provincial Division of the Supreme Court. Regarding the assault, Mr Justice Margo said: 'This is not merely a case of the negligent injuring of a person, which is not a crime in our law. Here the appellant, in shooting at his intended victim in a crowded street ... must have foreseen subjectively the possibility of killing or injuring some person other than the intended victim and he was reckless as to whether death or injury resulted or not.'

(State v Tissen, 1979)

Case History - A vicious vendetta

In 1983 Ramakulukusha, a well-known businessman, was arrested by members of the police on a trumped-up charge of murdering a young girl. He was detained for eight days, during which time he was assaulted by being struck with clenched fists, flung against a wall, submerged in a bath of water with a soapy bag pulled over his head, forced to confess falsely to the murder and compelled to travel around the former homeland of Venda while under arrest, closing several of his businesses. He was later tried on a charge of murder but acquitted. It turned out that the arrest, assault, closure of businesses and trial on a false charge had all taken place at the instigation of a police captain in the course of a personal vendetta.

  • The Venda Supreme Court ordered that Ramakulukusha be paid compensation of R84000. In delivering his verdict, Mr Acting Justice Van der Spuy said: 'I am of the opinion that, when the police are holding prisoners in detention and then resort to the kind of treatment which was meted out to the plaintiff, causing considerable injury, indignity, discomfort, fear and anxiety, the court must make an award which in money terms expresses its disapproval of the seriousness, brutality and the humiliating effect of such treatment.'

(Ramakulukusha v Commander, Venda National Force, 1989)

Warning - Attempting the impossible

Even an attempt to commit the impossible may be punishable. For example, a man who, intending to steal someone else's umbrella from a cloakroom, by mistake takes his own umbrella, may be guilty of attempted theft even though it is impossible to steal one's own property. And a person who stabs a corpse in the heart, thinking that it is a living human being and intending to kill it, commits the crime of attempted murder. In another case, a doctor was found guilty of attempting to carry out an abortion even though the foetus in question was already dead before the doctor had begun the procedure.

Assault with intent

If the assault is accompanied by the intention to commit a crime more serious than common assault, the charge will be formulated as such. In practice the most common crimes intended are murder, rape, robbery and the causing of grievous bodily harm. To establish the intention of grievous bodily harm it must be shown that the intention was to inflict serious injury (which may be judged by the weapon used, the degree of force employed in wielding it, the place on the body where injuries were inflicted and the nature of the injuries sustained). When a firearm or dangerous weapon has been used by a person over the age of 18 to injure another, a court may be obliged to impose a sentence of at least two years' imprisonment.

Indecent assault

When the act of violence or the force used in making the assault is indecent, the crime is indecent assault. Examples are:

  • Lifting up a woman's dress;
  • Putting a hand up a woman's dress;
  • Caressing a woman's breasts;
  • Touching a person's private parts.

The following, however, have been held by our courts not to be indecent assault:

  • Making improper suggestions to a woman and then grabbing her arm;
  • A man grabbing a woman by the arm and stating that he wants to have sexual intercourse with her;
  • Kissing a woman against her will.

Assault by the police

It is illegal for the police to use violence, or threaten to use violence, to obtain answers to questions. Again, both actual force and any unlawful threat of force or maltreatment constitute assault.

If suspects, witnesses or detainees are assaulted, criminal charges can be brought against the police and an action for damages can be instituted both against the police officers who perpetrated the assault and the Minister of Safety and Security.

Anyone assaulted by the police should see a doctor as soon as possible. A person who is being held in custody should ask to be examined by a district surgeon. It is normal in these circumstances for the doctor to make a record of any injuries and other aspects of the person's condition.

The difficulty in bringing a charge of assault against the police lies in providing proof. The prosecutor would have to show beyond reasonable doubt that an assault took place, but in the absence of witnesses other than the police, physical injury and the complainant's word are often the only evidence available. (See police, complaints against the.)

Provoked assault

If someone has caused bodily harm to another under severe provocation, the defence could be that there was no intention to cause the harm upon which the charge is based. The accused would thus plead not guilty of assault with the intention of inflicting bodily harm.

Assault by a parent

Punishment that inflicts serious injury upon a child is illegal because the parent is subject to the law relating to assault and can be fined or jailed for causing a child grievous bodily harm.

Unnatural punishment, such as locking a child up for hours without food, is also an offence.

Cases such as these are usually discovered by a neighbour, who may reasonably suspect assault or cruelty. In such instances, any suspicions should be reported to the nearest police station.

This confidential approach avoids embarrassment. The Child Care Act, 1983, imposes a duty on dentists, medical practitioners and nurses who examine or attend to any child in circumstances giving rise to the suspicion that the child has been ill-treated to report the matter immediately to the regional director of the relevant health authority of the district in which the child happens to be. (See child abuse.)

DEFENDING A CHILD Parents have the same rights to defend their children as they have to defend themselves.

If they believe that their child is in danger of attack, they may use reasonable force against the aggressor. In extreme cases, parents may even be within the law if they seriously injure or kill an attacker. But they must be able to show that they really believed that the child was in danger of being killed or seriously injured.

Any force or violence used against an aggressor must be proportionate to the danger. It would obviously not be reasonable to wound a neighbour seriously in order to restrain him or her from smacking a child. Nor would a court consider it lawful to assault a neighbour in revenge for having admonished or smacked a child.

Penalties

The courts have a wide discretion in cases of assault, as they do in most common-law crimes, and punishment will depend on the circumstances and the nature and severity of the assault.

Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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General Disclaimer: The content of Legal City does not constitute legal, tax or financial advice, nor does it necessarily reflect the views of our management, staff, shareholders, associates, contributors, authors or suppliers. Even though every endeavour has been made to ensure the accuracy of this information we cannot be held responsible for any errors and/or omissions. By using this web site you agree to accept and abide by our terms and conditions.
This web site and all its content is copyright © 2000-2014, Legal City CC • Web site managed with qPortal Content Management v 4.0.0 • This page loaded on October 22, 2014 at 11:39:08 pm, SA Standard Time.