We Need To Be Clear About Assault

We Need To Be Clear About Assault

Purpose

The crime of assault exists to give effect to the boni mores which would require that an individual be protected from the application of both physical force and mental force. Assault includes not only any degree of physical force but also creating an apprehension to the mind of the victim that is menacing or hostile.

Assault can be committed in 2 ways:

1      By the actual application of force and;

2      By acting in a manner that creates the belief in the mind of the victim that force is about to be applied to him/her.

Definition

The term assault can be defined as the unlawful and intentional application of force to the complainant or inspiring a belief of imminent use of force against the complainant.

Elements

1      Unlawful

2      Force/fear

3      Intention

 

1      Unlawfulness

Unlawfulness arrives when there is an interference with a person physical integrity, unlawfulness can also be established from the force used where there is physical contact that justifies vengeance

There are many justifications that can be raised, private defence of person, necessity if a reasonable person in the same position would have done the same thing then it is acceptable. Authority

Defences excluding unlawfulness include:

a) Authority

i                Court authority: Since the Constitutional Court held that corporal punishment of juveniles is cruel, inhuman or degrading punishment and therefore unconstitutional, it is no longer lawful for a court to impose a sentence of corporal punishment.

 

ii               Lawful arrest: In terms of the Criminal Procedure Act, police have the authority to use force when effecting or attempting an arrest. this however, must be done within reason in that it must be reasonable and necessary

 

iii              Disciplinary chastisement: The Court noted that parents have over the years enjoyed the right to discipline their children in a variety of ways, including the administration of moderate and reasonable chastisement. This right is regarded as an incident of the enjoyment of the constitutional right of freedom of religion or culture. However, in the view of the Court, what militated against the defence of moderate and reasonable chastisement was that it could not be demonstrated to be in the best interests of the child, especially when there is an effective non-violent option available. The Court concluded that any form of violence against a child, including reasonable and moderate chastisement, is a criminal assault and that the High Court was therefore correct in its conclusion that the common law defence of reasonable and moderate chastisement is constitutionally invalid.[1]

 

b) Private defence

Assaults inflicted in terms of private defence of person or property will not be unlawful provided that the force used is reasonable

c) Necessity

If a person is in a situation where they are forced to assault a person it would not be unlawful as it was necessary to protect a legal interest.

d) Consent

Consent is determined by the boni mores or public policy to determine whether consent legalises an act that would otherwise be unlawful. It would seem that public policy only allows for consent where the conduct objectively only causes minor harm because public policy will not allow for a person to consent to a sadistic beating.

Circumstances where assault will be lawful are injuries sustained by a boxer in a boxing match or injury sustained to a person during a surgical operation.

In S v Collet[2] the accused caught two juvenile employees stealing and gave them a choice to either be taken to the police or he himself will whip them. They chose to be whipped, after which they went to the police and Collet was charged with assault. He argued that they consented. The consent in this case was invalid because he did not have the power to mete out such punishment. Consent is a defence provided that it is justified by public policy; he did not have a right to assault them even though there was consent because it was against the boni mores.

e) De minimus rule

These are assaults that are so trivial that they are not considered unlawful. If the harm is minor / trivial that it is not worthy of being tried, such actions can be justified. This is determined by the boni mores of the society prevailing at that time. Each case must be judged on its facts.

 

 

2      Force

a     Application of force

This type of assault occurs where violent force is applied to the person of another causing bruising, wounding, breaking or mutilation.

This may occur directly, where the offender attacks the victim with a weapon or applies physical force by using their own body.

This may also occur indirectly where the offender uses instruments or other strategies to apply force to the victim’s body, such as derailing a train, using a dangerous animal or even instructing another person. In R v Jolly[ ] the court confirmed that indirect application of force is as reprehensible as direct application of force, because the harm visited upon the victim is the same. The court held that the definition of assault in South African law recognizes that the application of force may be indirect as well as direct. A person may cause force to be applied to the body of another without him-self touching that other. Therefore; the derailment of a passenger train caused by damage unlawfully and maliciously done to the line by the appellant must inevitably have been a considerable physical shock to the passengers due to the indirect application of force. The fact that the assault is only effected several hours after the completion of the obstruction (the accused’s conduct) makes no difference.

It is also indirect force if another person applies force upon the victim as a result of an instruction from the accused.

If the accused has a duty to protect the victim but intentionally fails to intervene when they are being assaulted then they may be liable for assault also.

 

b     Touching

 

As per the English law – to touch a person’s body without inflicting any sort of physical harm may constitute an assault. Generally, touching is considered to be an assault where the manner or nature of the touch is in some way insulting to the victim. E.g. spits in your face, etc. E.g. sniffs your hair – as long as it invades your personal space. Touching that has a sexual motivation, however gentle or affectionate, is an assault if done without the consent of the person touched

 

c     Inspiration of fear

South African law regards the mere inspiring of an apprehension in the mind of a person that he or she is about to be touched or beaten is itself an assault for which punishment may be imposed.

An assault is committed by an act or gesture that has the effect of creating in the mind of the victim the apprehension that s/he is about to suffer an attack upon their person. The act or gesture could be the waving of a weapon; raising a fist or merely advancing upon the victim. Also, pointing a firearm at the victim whether loaded or not or even capable of discharging a bullet constitutes an assault. Words alone are sufficient to qualify this requirement and it is not necessary for the victim to actually experience fear, the crime is committed by the act, gesture or words causing a belief that the attack will happen.

 

Burchell[ ] explains this as follows “if the victim is a stout-hearted person who faces the apprehension with calm and fortitude, the crime is still committed…the test is whether the threatened party believed that the threat could come about…” However it should be noted that where one intentionally creates in the mind of a foolish person an unreasonable apprehension that he is about to be attacked clearly commits an assault.

 

The test:

The test that is used to determine if there has been an inspiration of fear is; whether the threatened party believes that the conduct of the accused will immediately cause some sort of contact with his body. The enquiry relates to the impression created that the conduct of the accused created in the mind of the victim. If the conduct caused the victim to believe that he would be touched or beaten, then the crime is committed, conversely, if the victim did not form this impression then the crime is not committed, even though it was the accused’s intention to attack the victim. Did the victim subjectively feel that something was going to happen to his body? The mere inspiring of an apprehension in the mind of a person that he or she is about to be touched or beaten is in itself an assault. Therefore, in this regard, assault is committed by an act or gesture that has the effect of creating in the mind of the victim the apprehension that he or she is about to suffer an attack upon their person. The enquiry which determines an inspiration of fear is whether the threatened party believes that the conduct of the accused will immediately cause some sort of contact with his person.

 

The requirements for inspiration of fear are thus:

A. Imminent;

B. Conditional;

C. Present ability

D. Reasonableness of Apprehension

A. Imminent

The apprehension must be that the attack will take place immediately in the present and not sometime in the future. By this it is meant that the attack will take place in the present or not sometime in the future.

In R v Jolly[5] the fact that the unlawful damage to the line was effected several hours after the completion of the obstruction makes no different, the appellants are in the same legal position as if they has thrust the metals asunder as the engine touched them and wrecked the train there and then.

 

B. Conditional

The fact that the assault is conditional does not prevent it from being an assault or protects the accused. Even if the threat does not materialise, an assault has still been committed. It does not prevent the victim from forming the apprehension that if he does not obey he will be attacked. However, if the person is entitled to use the threat, as is the case in private defence then his conduct is lawful. This could be the case where X threatens to use force to defend himself or his property. If the victim does not leave and the perpetrator does not attack, the assault has been committed. However, if the person is acting lawfully, then the harm is not imminent and there is no assault. If one acts unlawful, then the threat is imminent although there may be a condition attached.

 

C. Present ability

The accused must have the present ability to carry out the threat in the immediate time and space. That is, if the victim believes that the attacker is able to carry out the threat. It therefore does not matter if the accused was not, in fact, able to carry out the threat. Where the circumstances under which the threat is made indicates to the victim that it is not possible for the threat to be carried out, then, as a matter of common sense, it would be difficult to conclude that the victim apprehended an attack.

D. Reasonableness of apprehension

The reasonableness of the apprehension is on the basis or standard of the reasonable person thus it is an objective qualification. Although there is authority that the apprehension must be reasonable, it is accepted that the thin-skull-rule applies (you take your victim as you find him). It is also submitted that one who intentionally induces in the mind of some foolish person an unreasonable apprehension that he is about to be attacked clearly commits an assault.

3      Intention

The onus of proving that the accused intended to assault rests on the state. If the state can prove that the accused intended to intimidate or inspire fear where there is no force, this is sufficient for common assault. If only negligence exists then the fault for common assault is lacking.

The requisite form of fault is either dolus directus, dolus indirectus or dolus eventualis. Intention needs to be present in respect of every element of the crime. The form of intention is always specific to the assault.

The test for intention is a subjective one where we ask whether the accused foresaw the possibility either that:

·           His conduct might involve the direct or indirect application of force to the victim’s person; or

·           It might inspire the victim to fear that such force would be immediately applied.

If the accused proceeded despite such foresight, he is liable for assault. Motive is irrelevant.

The intention must be specific to the actus reus which is relevant to the accused. If the assault was an application of force, then the intention must have been to unlawfully apply force to the person of the victim.

If the assault was inspiration of fear, then the intention must have been to unlawfully inspire the apprehension of an immediate impending assault. The mere intention to cause fear in the victim is sufficient for the crime of assault. Intoxication may possibly exclude mens rea for assault; however, provocation is unlikely to succeed.

 

Petrushka Hemraj

Candidate Attorney



[1] Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34

[ ] 1978 (3) SA 206 RA

[3] 1923 (AD)

[4] Principles of Criminal Law: Fifth Edition, Jonathan Burchell 2016

[5] 1923 (AD)