The Western Cape High Court in Cape Town has set aside a man's conviction for assault with intent to do grievous bodily harm after finding that he had acted in lawful self-defence when he punched a man who had allegedly subjected him to repeated unwanted physical contact of a sexual nature.
However, the court replaced the conviction with one of common assault, ruling that Gino Sanchez had acted unlawfully when he slapped and kicked the complainant after he had fallen unconscious.
The court also reduced Sanchez’s sentence from three years of correctional supervision to a fine of R3,000, wholly suspended for two years on condition that he is not convicted of assault during that period.
In its judgment, the majority of the court found that the State had failed to prove beyond reasonable doubt that the initial punch was unlawful but held that the subsequent blows could not be justified as self-defence.
Repeated unwanted advances at a party
The incident took place at a party in Bantry Bay, where Sanchez, who was 23 at the time, said he had been repeatedly harassed by the complainant, then 36.
According to Sanchez’s account, the complainant approached him from behind on several occasions, pressed his body against him, breathed on his neck in a manner he perceived as sexual, and attempted to grab him.
Sanchez said he initially tried to avoid confrontation by walking away. During another encounter, he put out his hand to hold the complainant back and asked what he wanted. When the behaviour continued, he sought help from two friends, who intervened and persuaded the complainant to leave him alone.
About 20 minutes later, Sanchez encountered the complainant again on the dance floor. He alleged that the man approached him, tried to grab him and attempted to put his mouth on his neck.
Sanchez subsequently went outside onto the patio to distance himself. The complainant followed him shortly afterwards.
Feeling frightened, agitated and angry at what he described as persistent unwanted advances, Sanchez punched the complainant once in the face.
The complainant fell backwards and lost consciousness.
Video footage captures the assault
Video footage presented in court showed the complainant following Sanchez onto the patio before making a movement towards him. Sanchez punched him in the face, causing him to fall to the ground.
The footage then showed Sanchez slapping the complainant while he lay motionless, before kicking him two seconds later.
The sequence unfolded within approximately 12 seconds.
The complainant was later treated at Somerset Hospital, where a doctor recorded a broken nose and swelling at the back of his head. The judgment also detailed evidence of more serious injuries, including multiple cranial haemorrhages and a skull fracture, which the complainant attributed to the assault and subsequent fall.
He testified that he experienced hearing loss, cognitive difficulties and persistent headaches, and that the injuries had significantly affected his ability to work and lead a normal life.
The complainant had limited recollection of the incident and could not identify his attacker from memory. He had initially told police that he had been struck from behind in a garden, but later acknowledged that his first statement was incorrect.
The court considered these memory difficulties when assessing the evidence presented at trial.
Court finds initial punch was self-defence
Sanchez was initially charged with attempted murder but was convicted in the Regional Court of assault with intent to do grievous bodily harm. He was sentenced to three years of correctional supervision.
He appealed both his conviction and sentence, arguing that the trial court had failed to properly assess his version of events and the principles of self-defence.
In its majority judgment, written by Judge Le Grange, with Judge Sher concurring, the High Court found that the trial court had been unduly critical of Sanchez’s evidence and had failed to give sufficient weight to the wider circumstances.
The court noted that Sanchez’s account of repeated unwanted physical contact had not been discredited under cross-examination and that the complainant’s limited recollection meant his evidence did not contradict Sanchez’s version of what had happened inside the house.
The judgment emphasised that self-defence is not restricted to situations in which a person faces a threat to their life or the prospect of the most serious physical harm.
The law recognises that people may defend their bodily integrity and dignity against an unlawful attack, provided the force used is necessary and reasonably proportionate to the threat.
The court found that Sanchez had a reasonable basis to believe that an attack was imminent when the complainant followed him onto the patio and moved towards him.
It concluded that he was not required to wait for the complainant to make further physical contact before defending himself.
“The State has failed to prove beyond a reasonable doubt that this initial blow was unlawful,” the judgment found.
Slap and kick exceeded the limits of self-defence
The court drew a clear distinction between the punch and the blows that followed.
Once the complainant had fallen unconscious, he no longer posed an immediate threat to Sanchez. The court found that the purpose of self-defence had therefore ended.
Judge Le Grange held that the slap and kick were not defensive acts but unlawful uses of force against a defenceless person.
Sanchez had explained that he acted out of frustration and anger. The court said this indicated that he was no longer responding to an ongoing attack.
It rejected the argument that the subsequent blows were so trivial that they should be disregarded under the legal principle known as de minimis non curat lex — meaning the law does not concern itself with trifles.
The judgment warned that overlooking disproportionate violence could encourage vigilantism and undermine the rule of law.
Although the slap and kick did not cause the grievous bodily harm associated with the initial punch and fall, the court found that they amounted to common assault because Sanchez had intentionally applied unlawful force without the complainant’s consent.
Judges divided over whether the later blows were trivial
Acting Judge Anderssen agreed that Sanchez’s punch was justified in self-defence and that his original conviction had to be set aside. However, she disagreed with the majority on whether the slap and kick should result in a conviction.
In a dissenting judgment, she argued that the court should have applied the de minimis principle, taking into account the repeated unwanted contact described by Sanchez, his emotional state and the short period in which the incident unfolded.
She also noted that no injuries had been attributed specifically to the slap and kick.
Anderssen argued that the sequence should be considered as a continuous course of conduct rather than treating the subsequent blows entirely separately from the events that preceded them.
She concluded that, in the circumstances, a conviction for common assault was not warranted.
Judge Sher, while expressing scepticism about aspects of Sanchez’s account, agreed with the majority’s conclusion that the initial punch could reasonably have been an act of self-defence and that the later blows should attract a conviction.
Conviction replaced and sentence reduced
The majority upheld the appeal against the conviction of assault with intent to do grievous bodily harm and set it aside.
Sanchez was instead found guilty of common assault. The court also set aside his original sentence of three years’ correctional supervision.
In deciding on a new sentence, the court considered that Sanchez was relatively young, was a first offender and had acted under provocation while defending his bodily integrity and dignity. It also took into account that the unlawful slap and kick occurred over a brief period.
The court imposed a fine of R3,000, or 30 days’ imprisonment, wholly suspended for two years on condition that Sanchez is not convicted of assault during the suspension period.
sinenhlanhla.masilela@iol.co.za
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