R v Mgxwiti

• Jurisdiction: South Africa
• Citation: 1954 (1) SA 370 (A)

R v Mgxwiti
1954 (1) SA 370 (A)

1954 (1) SA p370

Citation	1954 (1) SA 370 (A)
Court	Appellate Division
Judge	Greenberg JA, Schreiner JA and De Beer AJA
Heard	December 4, 1953; December 5, 1953
Judgment	December 11, 1953

Flynote : Sleutelwoorde

Criminal law — Murder — Appellant having joined in a murderous attack — Appellant contending deceased then already fatally injured E — Majority of Court of Appeal upholding Crown contention that it had discharged the onus of proving deceased not yet fatally injured — Dissenting Judge of Appeal nevertheless holding appellant guilty of murder as deceased was then still alive.

Headnote : Kopnota

Per SCHREINER, J.A.: Where an accused person has joined in an assault F which he knows to be aimed at the death of someone else, his responsibility for the ensuing death will depend on whether the victim was alive at the time when the accused joined in the assault and not on whether the victim had or had not at that stage received mortal injuries.

The appellant has been found guilty of murder, the Crown having proved a common purpose to attack and kill the deceased and that the appellant had been a party to such purpose. It appeared that the deceased had G approached the scene of her murder in a small motor car of which she was the sole occupant. The car had been attacked by several natives and thereafter set alight while the deceased was still in the car. There had also been stone throwing at the car. The Crown's evidence of the appellant's participation in the crime was that the appellant had come to the driver's side of the car and either through the open window space or open door space had stabbed or stabbed at the deceased with a knife. A Crown witness had stated that before the appellant had done the stabbing she had seen him pass her with an open knife walking in the direction of the car and when he had reached it he had used the knife H for stabbing. On an appeal, Held per GREENBERG, J.A. (DE BEER, A.J.A., concurring; SCHREINER, J.A., dissenting) that the Crown had discharged the onus of proving that the appellant had become a party to the common purpose before the deceased had been fatally injured.

Held per SCHREINER, J.A., however, as the appellant had joined in an obviously murderous attack at the time when the deceased was still alive, though possibly mortally injured, that he was guilty of murder.

1954 (1) SA p371

Case Information

Appeal from a conviction in the East London Circuit Local Division (SAMPSON, J., and assessors). The facts appear from the judgment of GREENBERG, J.A.

J. Slovo, for the appellant: The only possible basis of guilt is that appellant shared the responsibility of those persons who, in fact, murdered the deceased. Such guilt can, in our law, only be based on the doctrine of common purpose; see R v Mkize, 1946 AD at p. 205. That A doctrine is based on implied or express mandate; see McKenzie v van der Merwe, 1917 AD at p. 45. There are two classes of cases where the implied mandate can be held to have been given, viz., where there is prior conspiracy or agreement and where, even in the absence of prior conspiracy, persons act in concert with the intention of doing an illegal act even though the co-operation has commenced on the impulse B without prior consultation or arrangement; see R v Mkize, ibid; R v Duma and Another, 1945 AD at p. 414. In the case of an act committed in concert where co-operation has commenced on an impulse without prior consultation, the doctrine of common purpose can only be invoked if the mandate is shown to have been given before the physical act which constitutes the crime in question, has been committed; see R. C v. Mtembu, 1950 (1) SA at p. 670; Halsbury's Laws of England (2nd ed., para. 30); Grotius, 3.32.12; R v Kelly (1820), Russ & Ry., 421; Bishop, Criminal Law (8th ed., Vol. 1 para. 642). The mere ratification of an injury inflicted by another, is not, in itself, an injury; see de Villiers, The Roman & Roman-Dutch Law of Injuries (p. 47), Matthaeus, De Crimin, Proleg. (1.14). If the facts are as consistent with the D inference that although two persons attacked at about the same time, their acts were independent acts of assault, as with the inference that there was an implied mandate to do what was in fact done, then the accused is entitled to the benefit of the less onerous alternative; see R v Magatuse, 1941 AD at p. 201; R v Mtembu, supra at p. 676. It is conceded that the notion of mandate should be given an extended E meaning in cases where the mandatory is unaware of the mandator's existence; see R v Mtembu, supra at p. 678. If 'A' attacks 'B', but it is not proved whether this assault either caused or expedited death, and thereafter, after 'A' has left or has completed his attack 'X' appears and inflicts a wound which kills 'B', then in the absence of prior conspiracy the Court cannot infer common purpose between 'A' and 'X'; F see R v Mkize, supra, at p. 204. If 'X' assaults 'B' and inflicts a wound which either kills 'B' immediately or leaves him to linger and die and thereafter, while 'X' is still assaulting the deceased, 'A' appears and strikes a blow which is not shown to have expedited or contributed to 'B's' death, then again, in the absence of proof of prior conspiracy, G the Court cannot infer common purpose between 'A' and 'X'; see R v Mtembu, supra at pp. 684 - 7. It may be that in both of the foregoing cases, depending on 'A's' state of mind, he might, by virtue of his own acts, be guilty of an offence, but, in that event his guilt is determined by his own independent acts and is unrelated to 'A's' acts. 'A's' state of mind can be inferred from his knowledge of 'X's' attack, seriousness of his own assault, nature of weapon used, etc.; R v Valachia and Another, 1945 AD at p. 831. Where the Crown, in order to H prove a murder charge, relies on an independent act of an accused, the onus is on the Crown to prove beyond any reasonable doubt that the accused, with intent to kill, in fact succeeded in killing the deceased. Where the accused has committed a further assault after the deceased has already received serious injuries at the hands

1954 (1) SA p372

of other parties the possibility that the accused's assault contributed towards or expedited death cannot be assumed or acted upon in the absence of evidence to this effect; see R v Mtembu, supra at p. 686.

If it is proved that appellant was a party to the common purpose to kill but it is not proved that when he stabbed her, he knew that the deceased was dead or that he thought the deceased was dead, then, if it be proved A that he became such a party at a time when the deceased was, in fact, dead or at a time when the fatal wound had already been inflicted, then lack of proof that he thought or that he knew she was dead when he actually stabbed her militates against conviction on a charge of murder. If, however, it is proved that appellant became such a party when the deceased was alive and before the fatal wound had been inflicted, then B lack of proof relating to his knowledge or belief as to whether the deceased was dead or alive when he stabbed her, is immaterial. In such a case, appellant would be guilty of murder. If the evidence does not prove that appellant was a party to the common purpose to kill, but proves that the deceased was still alive when he stabbed her, appellant is guilty of assault with intent to murder or to do grievious bodily C harm. If it be not proved that appellant was a party to the common purpose, the fact that he stabbed the deceased at a time when it is not proved whether he thought she was alive or not, then appellant is not guilty of any crime covered by the indictment. In the absence of proof that at the time when he committed the assault, he had the intention of assaulting a live person, the mens rea, which has to be established by D the Crown in all competent verdicts covered by the indictment (with the exception of culpable homicide, which is not possible in the present case) could not be present. A verdict of guilty of being an accessory after the fact, is not a competent one; see R v Mlooi and Others, 1925 AD 131. It is conceded that guilt may depend upon the accused person having taken part even without agreement and merely by way of assistance E in an assault which is known by him to be murderous and which results in the death of the victim irrespective of whether the fatal wound was casually connected with the conduct of the assister or not; see R v Mtembu, supra at pp. 678 - 9. But the assistance has to commence at a stage before the purpose of the assault has, in fact, been achieved. There are no facts from which the inference could reasonably be drawn F that at the stage of the stabbing appellant thought that the deceased was alive. The admission 'we killed her' could, in normal circumstances be strong evidence in favour of the contention that he thought she was alive but in the circumstances it does not necessarily lead to such an inference; cf. R v Mtembu, supra at p. 676.

L. C. Barrett, Q.C., Solicitor-General of the Eastern Cape Districts, for the Crown: Appellant was a party to the common purpose to kill or grievously injure the deceased. No. 3 in the list of principles which should guide an appellate tribunal in an appeal purely on fact and as set out in R v Dhlumayo and Another, 1948 (2) SA at p. 705 is of particular application in the present case. The deceased was still alive when appellant stabbed her. If the evidence proves that appellant was a party but does not prove that deceased was still alive when he stabbed H her, it nevertheless proves that appellant became such a party while the deceased was still alive and at a stage before No. 2 accused commenced the assault on the deceased with his stick. Such being the case, No. 2 accused was the agent of...