R v Koning

• Jurisdiction: South Africa
• Judge: Ramsbottom J
• Judgment Date: 17 March 1953
• Court: Transvaal Provincial Division
• Citation: 1953 (3) SA 220 (T)

Ramsbottom, J.:

The accused is charged with murder. The indictment H alleges that on or about the 12th August, 1952, at the farm Kafferstad, in the district of Bethal, the accused wrongfully, unlawfully and maliciously killed and murdered Bambate Dhlamini. The Crown must prove three things before it can claim a verdict of guilty of murder. The first thing that the Crown must prove is that the accused killed Bambate; the second is that the killing was intentional; the third that the killing was unlawful. Those are the three allegations which are made in the

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indictment and the onus is upon the Crown to prove each of these allegations beyond all reasonable doubt. If any of the allegations on which the Crown relies is not proved beyond all reasonable doubt the accused is entitled to the benefit of that doubt. That is subject to a A reservation which will appear later on in the judgment. With regard to the first fact that the Crown must prove, namely, that the accused killed Bambate, that is admitted. The accused admits that on the 12th of August of last year he fired a shot, that the bullet pierced the body of Bambate, and that he died from the wound so inflicted. The accused, B however, denies that the killing was intentional and he also denies that it was unlawful. He claims that the killing was a lawful killing because he was acting under a statutory power, a power conferred by sec. 29 of the Prisons and Reformatories Act, 13 of 1911.

C The accused is a warder in the service of the Prisons Department; the deceased was a convict, a member of a gang or span of convicts which was working under the charge of the accused. While this gang was at work in a mealie land on a farm belonging to a Mr. Goldberg on August 12th of last year the accused shot the deceased and killed him. The accused D alleges that the deceased was attempting to escape and that it was necessary for him to shoot the deceased to prevent him from escaping. He claims the protection of sec. 29 of the Prisons and Reformatories Act of 1911. That section reads:

'It shall be lawful for any officer of a convict prison or gaol to be E armed with loaded firearms, and if any convict or prisoner attempt to escape or threaten to attack or attack an officer or any other person, or in concert with others commit any act of violence, it shall be lawful, whenever it is necessary to prevent the escape, or (as the case may be) for the defence of himself or any other person, for any such officer to fire upon any such convict or prisoner.'

F The third sub-section of that section reads:

'If any officer or person so authorised to be armed with firearms or other weapons, and acting under the necessity aforesaid, kill or wound any convict or prisoner, he shall not be guilty of any offence.'

The accused claims that the deceased was attempting to escape, that it G was necessary in order to stop him - to prevent his escape - to fire at him, and he claims, therefore, that the killing was lawful. The Crown case is that the accused shot the deceased in cold blood, knowing that he was not trying to escape. In other words, the main case for the Crown is that this was wilful murder. Alternatively, the Crown claims that, even if the deceased was trying to escape, it was not necessary H for the accused to shoot him in order to prevent him from escaping, and, consequently, it is maintained on behalf of the Crown that the killing was unlawful.

[The learned Judge analysed the evidence and then continued.]

We have analysed the evidence of the Crown witnesses with care and in considerable detail in order that it may fully be understood why we have come to our conclusion on this part of the case. The conclusion to which we have come is that the Crown has failed

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to prove beyond all reasonable doubt that this was a deliberate killing and a murder in the sense in which, as its main claim, the Crown set out to prove.

That, however, does not conclude the case. Even if this was not a deliberate killing of a person who was not escaping or who was not A thought to be escaping, the accused may still be guilty of murder or he may be guilty of culpable homicide. It does not follow that, because he did not kill the deceased in circumstances which the Crown set out to prove as its main case, he is not guilty of a crime, and I must pass on then to consider the Crown's alternative contention: that is that the B accused has failed to prove that his killing was justifiable in terms of sec. 29 of Act 13 of 1911. I have already read that section and I do not propose to read it again. The question which arises at once is, where is the onus of proof? Is the onus of proof upon the Crown or is it C upon the accused? Must the Crown prove that the deceased was not running away or attempting to escape? Must the Crown prove that the shooting was not necessary, or is it for the accused to prove that the deceased was attempting to escape and that the shooting was necessary? That question has, as far as I know, never been decided in respect of the section with D which we are now concerned. The same question has been considered in relation to sec. 44 of the Criminal Procedure and Evidence Act, 31 of 1917, which deals with the arrest of persons who may be arrested without warrant and who resist arrest or flee. That section reads:

'When any peace officer or private person authorised or required under E this Act to arrest or assist in arresting any person who has committed or is on reasonable grounds suspected of having committed any of the offences mentioned in the First Schedule to this Act, attempts to make such arrest, and the person so attempted to be arrested flees or resists and cannot be apprehended and prevented from escaping by other means than by such officer or private person killing F the person so fleeing or resisting, such killing shall be deemed in law justifiable homicide.'

It has been held by the Appellate Division that once the right to arrest has been proved and once the attempt to arrest has been proved, then, if the person attempted to be arrested flees or resists and cannot be apprehended, that person may be killed with impunity. But it has been G held that the onus of proving (a) the right to arrest, (b) the attempted arrest, (c) the flight or resistance, and (d) the necessity, is on the person claiming the protection of the section. The case referred to is Rex v Britz, 1949 (3) SA 293 (AD).

H The duty of deciding questions of law in a trial by Judge and assessors is upon the Judge. I must decide as a matter of law where the onus of proof lies when the protection of sec. 29 of the Prisons and Reformatories Act is invoked. This section differs from sec. 44 of the Criminal Procedure and Evidence Act in several ways. It refers not only to cases of escaping or attempted escaping. It also refers to cases of attack by a convict upon an officer or any other person. It does not say 'if the escape cannot be prevented

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by any other means'. It says 'whenever it is necessary to prevent the escape'. But having regard to these differences it seems to me that the reasoning which was applied in Rex v Britz applies equally well to sec. 29. Sec. 29 certainly enlarges the Common Law rights or Common Law A powers of a gaoler. Precisely what those powers are in the Common Law is not clear, but presumably they are analogous to the power enjoyed by an officer of justice who is effecting an arrest. In regard to that, the law as it was in the Netherlands in 1764 is stated in Moorman's Verhandelinge Over de Misdaden, Book II, Chap. 2, sec. 4. The learned B author there says that a person who has been sent by order of the state to take another into custody may resist force with force; he says that resistance may be overcome but that a person who flees and avoids arrest cannot be killed while fleeing unless it is a person whose guilt C has been sufficiently shown and whose offence is of such a nature that the state would suffer grave prejudice as a result of his escape; only then is a person, who is attempting to effect arrest, entitled to kill - only if there is resistance or if the person escaping is guilty of some grave offence, sec. 29 undoubtedly enlarges the Common D Law. It gives much greater powers to an officer of a convict prison or goal than he enjoyed at the Common Law. He is allowed to kill to prevent the escape of a convict when that convict is fleeing, not only when the convict attacks him. He is entitled to kill a convict who is attempting to escape if it is necessary to do so even though the crime for which E the convict was convicted be not a very serious one. There is no doubt that this defence is of much wider scope than the Common Law defence. It is in point of fact a new statutory defence and so, as in Britz's case, there is some justification for thinking that the intention of the F Legislature was to require the person who claims the protection of the statutory defence to show that he is entitled to such protection. There is a difference between the wording of this section which says 'it shall be lawful whenever it is necessary to prevent the escape' and the wording of sec. 44 which says 'if such person cannot be prevented from escaping by other means than by such officer or private person killing G the person so fleeing or resisting', but I do not think that there is any difference in meaning. When is it necessary? It is necessary when there is no other means. That was made clear by WESSELS, C.J., in Rex v Hartzer, 1933 AD 306. That was a case where a policeman, trying to arrest a person, unlawfully fired at him. Fortunately in that case the H man was not killed. The learned Judge said: 'In any case a policeman cannot shoot at a person arrested merely because he runs away. He must first use other means to recapture him, and can only resort to a firearm if he can use no...