Tab 1
COMMON ASSAULT
1. Introduction
Assault is defined as the unlawful application of force or the threat of force
against another person. Section 2(1) of the Penal Code provides that assault
includes:
● The intentional application of force to the person of another, directly or
indirectly.
● The making of any gesture towards another in such a manner as to give
them reasonable grounds to believe that force is about to be applied to
their person.
Section 246 further clarifies that common assault occurs when a person
unlawfully assaults another, making them liable to imprisonment for a term not
exceeding one year. The offence may involve physical contact or mere threats,
provided that the victim reasonably apprehends immediate harm
The actus reus for common assault is the application of force ( any unlawful and
intentional application of force to another person even if minimal).
And threat of force(causing someone to reasonably fear imminent unlawful force,
even if no physical contact occurs)
The mens rea for common assault is the dolus directus or dolus indirectus which
is when the perpetrator applies force or threatens another.
And dolus eventualis which can be translated to recklessness, which means the
person foresees that their actions might cause fear of force but proceeds anyway
2.Problematic Aspects of Assault
2.1 Immediacy
For an act to constitute assault, the threat or application of force must be
imminent. A future threat does not amount to assault unless the circumstances
suggest an imminent attack.
● In Stephens v Myers (1830), the court held that not every threat constitutes
assault. The complainant must have a reasonable apprehension that the
threat will be carried out immediately.
● In Logdon v DPP (1976), the accused showed a replica gun to the victim,
causing her to fear immediate harm. The court ruled that the victim’s
apprehension was reasonable, making the act an assault.
● In Tuberville v Savage (1669), the accused placed his hand on a sword but
stated, "If it were not assize time, I would not take such language from you."
The court held that words negated the threat, meaning no assault
occurred.
The test for immediacy is whether a reasonable person in the victim’s position
would believe that the force is about to be applied immediately.
2.2 Ability
The accused must have the ability to carry out the threatened harm at the time of
the incident. However, the actual means to execute the threat is not necessary if
the victim reasonably believes that force will be applied.
● In Logdon v DPP (1976), the accused did not have a real gun, but the victim’s
reasonable belief that harm was imminent was sufficient.
● In contrast, in R v Lamb (1967), where the accused pointed a gun at his
friend, believing it was not loaded, no assault was found because the victim
did not apprehend immediate harm.
A person pointing an imitation gun may still be guilty of assault if the victim
believes it to be real. However, a threat over the phone would not suffice, as there
is no immediate ability to carry it out.
2.3 Consent
Assault must occur without the consent of the victim. Consent may serve as a
defense in cases such as lawful sports, medical procedures, and agreed-upon
physical contact.
● In R v Brown (1993), the court ruled that consent does not negate assault if
actual bodily harm is inflicted.
● In Botswana, Section 246 does not explicitly recognize consent as a
defense, implying that even consensual physical force could be unlawful in
certain circumstances.
2.4 Hostility
For an act to be considered assault, there must be an element of hostility,
meaning aggression or ill intent.
● In Collins v Wilcock (1984), the court ruled that touching must be hostile to
constitute assault. A mere tap on the shoulder would not be assault unless
done in an aggressive manner.
● In Selebogo v The State (1987), the appellant removed her coat and
advanced toward the complainant but was restrained. The court held that
this amounted to assault because the movement, combined with verbal
threats, indicated an intent to apply force.
Playful gestures or accidental contact do not constitute assault unless they carry
an element of hostility.
2.5 Direct/Indirect Attack
Assault can be committed directly through immediate physical contact or
indirectly through other means, such as setting a trap.
● In DPP v K (1990), the accused placed acid on a hand dryer, which later
harmed the victim. The court ruled that this constituted indirect assault.
● In R v Halliday (1889), a man threatened his wife, causing her to jump from a
window and injure herself. The court held that his threats amounted to an
assault.
● In Botswana, Section 230 (Grievous Harm) extends to indirect means of
inflicting harm.
A person throwing a rock at someone or setting a trap that later injures them can
be guilty of assault.
2.6 Recklessness
Recklessness in assault occurs when a person disregards the potential
consequences of their actions.
● In R v Cunningham (1957), the accused tore a gas meter off a wall, releasing
gas that harmed a neighbor. The court found that reckless behavior
causing harm could amount to assault.
● Section 232 of the Penal Code, which addresses maliciously administering
poison, extends liability to reckless acts.A person who drives recklessly into
a crowd or throws objects without caution may be
● guilty of assault if harm results.
2.7 Degree of violence
The degree of violence in an assault determines the severity of the offence and
the corresponding punishment. Assault ranges from minor physical contact to
grievous bodily harm. The Penal Code provides different categories of assault
based on the extent of harm caused.
Section 246: Common assault – minor application of force or threat, punishable
by up to one year in prison.
Section 247: Assault occasioning actual bodily harm – more serious physical
harm, punishable by up to five years in prison.
Section 230: Grievous harm – injuries causing long-term damage or permanent
disability, punishable by 7 to 14 years in prison.
● In DPP v Smith (1961), the court defined grievous harm as “really serious
harm.”
● In R v Miller (1954), it was held that actual bodily harm includes injuries
interfering with the victim’s health or comfort.
Courts assess medical evidence and witness testimony to determine the severity
of injuries.
Factors Determining Degree of Violence
● The nature of the weapon used (fists vs. knives vs. firearms).
● The extent of injuries (bruises vs. broken bones vs. permanent disability).
● The intent of the perpetrator (reckless vs. deliberate intent to cause harm).
● The victim’s vulnerability (children, elderly, or disabled individuals may lead
to harsher penalties).
The degree of violence is crucial in distinguishing between different levels of
assault. The Botswana Penal Code ensures proportionate sentencing based on
harm inflicted. Courts consider medical reports, intent, and victim circumstances
to classify offences appropriately.
Words or acts
Words and actions play a crucial role in determining criminal liability. While mere
words are generally insufficient for assault, they may constitute an offence if
accompanied by threatening gestures or actions.
● Section 2(1) of the Penal Code: Defines assault as intentional force or
gestures that cause reasonable apprehension of harm.
● R v Meade and Belt (1823): The court held that words alone do not
constitute assault.
● Read v Coker (1853): Words combined with threatening actions (rolling up
sleeves and advancing menacingly) amounted to assault.
● Tuberville v Savage (1669): Words negated the assault as they indicated no
immediate intent to harm.
Application
● Immediate threat required: A verbal threat must be coupled with actions
indicating imminent harm.
● Conditional threats: In Blake v Bernard (1840), the court ruled that
conditional threats (e.g., "Do this, or I will harm you") may not amount to
assault unless immediate force is implied.
● Use of weapons: Pointing a gun, even if unloaded, may constitute assault if
the victim believes harm is imminent (Logdon v DPP, 1976).
Distinguishing Words from Acts
● A person saying, “I will hit you,” may not be guilty of assault unless they
raise a fist or move aggressively toward the victim.
● If a person brandishes a knife and verbally threatens harm, this is likely to
be considered assault.
While words alone are generally not sufficient for an assault charge, they can
contribute to liability when combined with threatening actions.Courts are
required to assess whether the victim had reasonable grounds to fear imminent
harm, considering both verbal and non-verbal elements of the offence.
Defences for assault
Mistake as a Defense
A mistake of fact can serve as a defense to assault if the accused genuinely and
reasonably believed in a set of circumstances that, if true, would render their act
lawful. However, a mistake of law (ignorance of the law) is not a valid defense.
If a person mistakenly believes they are defending themselves from an attacker,
but it turns out the person was not a threat, the defense of mistake may apply,
provided the belief was reasonable.
Section 9 of the Penal Code states that an act done under a mistaken belief in a
set of circumstances that would otherwise make the act lawful may not be
punishable.
Intoxication as a Defense
Intoxication can be used as a defense to assault in limited circumstances,
specifically where it negates the necessary intent (mens rea) required for the
offense. The law distinguishes between voluntary intoxication (self-induced) and
involuntary intoxication (where the person was drugged or unknowingly
consumed alcohol).
1. Involuntary Intoxication: Involuntary intoxication occurs when the accused
becomes intoxicated without their knowledge or against their will, such as
being drugged or unknowingly consuming alcohol. This form of intoxication
can serve as a complete defense to assault, as the accused may lack the
capacity to form the intent to commit the offense.
2. Voluntary Intoxication: Voluntary intoxication, where the accused
intentionally consumed alcohol or drugs, is not a full defense. However, it
may be relevant if the accused’s intoxicated state prevented them from
forming specific intent.
3. Section 12 of the Penal Code: According to Section 12 of the Penal Code,
intoxication is only a defense if it was involuntary or if it rendered the
accused incapable of understanding their actions. Voluntary intoxication,
though not a complete defense, can still be considered by the court as a
mitigating factor when determining the sentence. This principle
acknowledges that while the accused may not have been entirely free from
blame, their voluntary intoxication may have contributed to a reduced level
of moral responsibility.
In Mpongoshe v S (CA),the appeal court carefully weighed the appellant's
moderate intoxication as a mitigating factor, acknowledging that while it did not
absolve him of moral responsibility, it contributed to a reduced level of moral
blameworthiness. The court emphasized that sentencing is primarily within the
trial judge's discretion, and while minimum sentencing laws mandate life
imprisonment for certain serious crimes, they allow for lesser sentences if
substantial and compelling circumstances are present.
Despite the appellant’s personal circumstances, such as his age, family situation,
and previous conviction, these factors were not sufficient to outweigh the gravity
of the offense. Additionally, the lack of remorse further diminished his chances for
rehabilitation. Ultimately, the appeal court found the original sentence of life
imprisonment disproportionate and reduced it to 20 years, backdated to account
for time spent awaiting trial, reflecting a balanced approach to both mitigating
factors and the severity of the crime.
ASSAULT OCCASIONING BODILY HARM
Assault occasioning bodily harm is a serious criminal offense under the
Botswana Penal Code. It involves the unlawful application of force to another
person, resulting in actual bodily harm. This offense is more severe than common
assault as it requires proof that the victim sustained physical harm as a direct
result of the assault.
Legal Provision Establishing the Crime
Assault occasioning bodily harm is established under Section 247 of the
Botswana Penal Code. This section states that:
any person who commits an assault that results in actual bodily harm is guilty of an
offense and is liable to imprisonment for a term not exceeding five years, with or without
corporal punishment.
Definition and Elements of the Crime
It is defined as the unlawful use of force or violence against another person,
leading to physical injury that is more than minor or transient. To secure a
conviction, the prosecution must establish several key elements beyond a
reasonable doubt.
The first element is the assault itself, which refers to an act that causes another
person to fear immediate and unlawful violence. This can include direct physical
contact, such as hitting or kicking, as well as indirect actions that result in injury,
such as setting a trap or using an object to cause harm.
The second element is bodily harm, which refers to any injury that is significant
enough to affect the victim’s health or well-being. This includes bruises, cuts,
broken bones, and other injuries requiring medical attention. In the case of R v
Miller (1954), the court ruled that actual bodily harm includes any hurt or injury
that interferes with the victim’s health or comfort.
The third element is causation. There must be a direct link between the assault
and the bodily harm suffered by the victim. The prosecution must demonstrate
that the harm would not have occurred but for the accused’s actions.
Actus Reus and Mens Rea of the Crime
The actus reus, or physical element, of assault occasioning bodily harm consists
of the unlawful application of force that results in injury. This includes both direct
physical acts and indirect actions that lead to bodily harm. The injury must be
more than trivial, and there must be a clear causal connection between the
accused’s actions and the harm suffered by the victim.
The mens rea, or mental element, requires proof that the accused either intended
to cause harm or acted recklessly, knowing that their actions could result in
injury. In R v Cunningham (1957), the court held that recklessness involves
foreseeing the risk of harm and proceeding with the action regardless of that risk.
This means that even if the accused did not intend to cause harm, they may still
be held criminally liable if they were aware that their actions could result in injury.
UNLAWFUL WOUNDING
Unlawful wounding is codified under Section 233(a) of the Botswana Penal Code,
which states:
“Any person who unlawfully wounds another is guilty of an offense and is liable to
imprisonment for a term not exceeding seven years.”
This provision establishes the crime and prescribes a significant penalty,
reflecting the seriousness with which the law treats such conduct. The provision
mandates that for an act to constitute unlawful wounding, there must be an
intentional infliction of injury that results in the breaking of the skin.
Elements of Unlawful Wounding
For the prosecution to secure a conviction, the following elements must be
proven:
● An act of wounding – The accused must have inflicted an injury that breaks
the skin.
● Unlawfulness – The act must not be justified by any legal defense such as
self-defense or lawful correction.
● Intent or recklessness – The accused must have either intentionally
wounded the victim or acted recklessly without regard for the
consequences.
Actus Reus and Mens Rea
Actus Reus (Physical Act)
The actus reus of unlawful wounding involves the application of force that results
in a wound. This can be caused by:
● A direct blow (e.g., striking the victim with an object).
● A cutting instrument (e.g., using a knife or sharp object).
● An indirect act (e.g., setting a trap that leads to wounding).
Mens Rea (Mental State)
To establish mens rea, the prosecution must prove that the accused either:
● Intended to wound the victim deliberately, or
● Acted recklessly, aware that their conduct could cause wounding but
proceeded regardless.
Legal Consequences and Sentencing
A person convicted of unlawful wounding under Section 233(a) of the Penal Code
faces imprisonment for up to seven years. Courts consider aggravating and
mitigating factors when determining the sentence, such as:
● Aggravating Factors: Use of weapons, repeated attacks, or injuries to a
vulnerable person.
● Mitigating Factors: Lack of prior convictions, provocation, or unintentional
wounding.
GRIEVOUS HARM
Grievous harm is established under Section 230 of the Botswana Penal Code,
which states:
(1) Subject to the provisions of this section, any person who unlawfully causes
grievous harm to another by the use of any offensive weapon or any other means
whatever is guilty of an offence and shall, where there are no extenuating
circumstances, on conviction, be sentenced to a term of imprisonment of not less
than 7 years or more than 14 years.
(2) Where a court convicting a person under subsection (1) finds that there were
extenuating circumstances, it may impose a lesser sentence than that prescribed
in subsection (1).
This provision mandates that grievous harm involves serious or permanent
injury, with a minimum sentence of seven years and a maximum of fourteen years,
emphasizing the severity of such an act. Unlike unlawful wounding, which focuses
on breaking the skin, grievous harm considers the extent of the injury and its
long-term consequences.
Elements of Grievous Harm
To prove grievous harm, the prosecution must establish:
● Infliction of serious injury – The harm must significantly impair the victim’s
health or bodily functions.
● Unlawfulness – The act must not be legally justified (e.g., self-defense, lawful
correction).
● Intent or recklessness – The accused must have intended to cause serious
harm or acted recklessly without regard for the outcome.
Actus Reus and Mens Rea
Actus Reus (Physical Act)
The actus reus of grievous harm includes any act that causes serious bodily
injury. This can involve:
● Severe beating resulting in broken bones.
● Use of weapons (e.g., knives, firearms, blunt objects).
● Actions leading to permanent disfigurement or disability.
Mens Rea (Mental State)
The mens rea required for grievous harm involves:
● Intention to cause serious injury, or
● Recklessness, where the accused was aware that their actions could result
in serious harm but proceeded anyway.
Legal Consequences and Sentencing
Under Section 230 of the Penal Code, grievous harm carries a sentence of 7 to 14
years of imprisonment. The severity of the punishment reflects the long-term
impact of the injury on the victim. Courts consider several factors when
determining the appropriate sentence:
● Aggravating Factors: Premeditation, use of weapons, or targeting a
vulnerable victim.
● Mitigating Factors: Absence of prior offenses, provocation, or lack of intent
to cause serious harm.
Assaulting a Police Officer in the Execution of Duty
Section 249 of the Penal Code criminalizes assault with intent to resist or prevent
lawful apprehension, reinforcing the legal protection afforded to law enforcement
officials. Furthermore, the Criminal Procedure and Evidence Act grants police
officers the power to arrest without a warrant in certain cases (Section 28) and
allows them to use reasonable force when necessary (Section 47). The
combination of these legal provisions ensures that law enforcement officers can
carry out their duties effectively while preventing undue resistance from suspects.
Elements of the Offense
For an individual to be convicted of assaulting a police officer, the following
elements must be proven:
1. Application of Force – The accused must have intentionally used force or
attempted to use force against an officer.
2. Intent – The accused must have intended to resist or assault the officer,
meaning accidental physical contact does not suffice.
3. Due Execution of Duty – The officer must have been lawfully performing
their duty at the time of the assault. If the officer was acting unlawfully, the
charge may not stand.
The courts have ruled that resistance to an unlawful arrest may be justified,
provided that the force used is proportionate. This ensures that police authority
is respected but not abused.
Is Assault Justified if the Police Officer is Abusing Power?
A significant legal question is whether assault against a police officer can ever be
justified. Under common law principles, individuals have the right to resist
unlawful arrest. The case of R v Tooley (1710) recognized that individuals should
not be forced to submit to unlawful detention. Similarly, in Botswana, the case of
State v Setshameko France (1974) held that when a police officer unlawfully
restrained a suspect, the suspect was entitled to use reasonable force to free
himself. The court ruled that the officer had overstepped his legal authority and
that the accused's response was justified.
However, the force used in resisting unlawful actions by the police must be
proportionate. The case of The Queen v Biron (1976) in Canada emphasized that
even when resisting an unlawful arrest, excessive force is not justified and may
result in a conviction for assault. Courts carefully examine the necessity and
reasonableness of the force used. Moreover, alternative legal remedies, such as
filing civil claims for unlawful arrest, are encouraged instead of resorting to
physical resistance. Botswana’s Attorney General v Konyango (2016) case
confirmed that individuals subjected to unlawful arrest are entitled to
compensation, reinforcing the idea that legal recourse should be preferred over
violence.
Does the Perpetrator Have to Know That the Victim is a Police
Officer?
Another important consideration is whether the accused must have known that
the victim was a police officer. In Botswana, the courts have held that knowledge
is not a necessary requirement. The case of State v Setshameko France clarified
that as long as the assaulted person was a police officer in execution of duty, the
accused could be convicted regardless of whether they knew the officer’s status.
However, if an officer is in plain clothes and fails to identify themselves, this may
provide a defense. In Cumberbatch v Crown Prosecution Services (2009), the UK
courts ruled that where an officer does not clearly disclose their identity and is
assaulted, the suspect may argue that they were unaware they were resisting law
enforcement. Similarly, in Dixon v Crown Prosecution Services (2018), the court
found that assisting officers who intervene in an unlawful arrest may also not be
considered as acting in execution of duty, which affects the legality of resisting
them.
Liberty and Its Relation to Arrest
Liberty is a fundamental right that protects individuals from arbitrary detention
and ensures due process in legal proceedings. The right to liberty is enshrined in
Section 5 of the Constitution of Botswana, which provides protection against
unlawful arrest and detention. This right is also recognized in various
international human rights instruments, such as Article 9 of the International
Covenant on Civil and Political Rights.
Liberty is encroached upon in cases where:
● An individual is arrested without just cause or reasonable suspicion.
● A person is detained beyond the legally permitted time without a charge
being brought.
● The arresting officer uses excessive force or fails to inform the suspect of
the reason for the arrest.
Cases such as Attorney General v Konyango (2016) demonstrate how unlawful
arrests violate personal liberty and may entitle the victim to compensation.
Arrest with and Without a Warrant and Limits of Arrest
An arrest with a warrant occurs when law enforcement obtains judicial
authorization before detaining an individual. Warrants ensure that arrests are
backed by probable cause and prevent arbitrary detention. The Criminal
Procedure and Evidence Act provides conditions under which a warrant must be
obtained before arresting an individual.
An arrest without a warrant is permitted under Sections 27-36 of the Criminal
Procedure and Evidence Act, which allow for immediate detention in cases where:
● A crime is committed in the presence of a judicial officer (Section 27).
● A peace officer has reasonable suspicion of an offense (Section 28).
● A suspect possesses stolen property, obstructs law enforcement, or is
found in suspicious circumstances (Section 29).
● A private person witnesses an offense and takes immediate action
(Sections 31-35).
However, there are limits to arrest powers:
● Reasonable suspicion is required – Officers cannot arrest based on mere
speculation (Aphiri v The Attorney General (2000)).
● Force used must be proportionate – Excessive force may lead to legal
consequences for the arresting officer (Tankomane v Attorney General
(2015)).
● Detention must not exceed 48 hours without a warrant – A suspect must be
brought before a magistrate within a reasonable time, as per Section 36.
