R v Mzwakala

• Jurisdiction: South Africa
• Judge: Schreiner ACJ, De Beer JA, Malan JA, Price AJA and Ogilvie Thompson AJA
• Judgment Date: 09 September 1957
• Citation: 1957 (4) SA 273 (A)
• Hearing Date: 03 September 1957
• Court: Appellate Division

H Schreiner, A.C.J.:

This is an appeal against the severity of a sentence imposed on the appellant after he had been convicted by a jury on two counts of assault with intent to murder. It was proved that on the 18th September, 1956, and again on the 15th October, 1956, he loosened rails on the railway line between Gouda and Tulbagh Road and so derailed on the first occasion a goods train and on the second

Schreiner ACJ

occasion a passenger train. On neither occasion was anyone seriously injured but damage was done to railway property. The presiding Judge, BEYERS, J., treated the two offences as one for the purposes of sentence and imposed a sentence of twenty-five years' imprisonment with compulsory labour, but granted leave to appeal to this Court.

A In the course of his remarks when passing sentence the learned Judge referred to the fact, established by the evidence, that the appellant had acted under a sense of grievance. He had been employed by the South African Railways on plate-laying work but had left their service shortly B before the first crime was committed. Apparently he suffered an injury to his finger in December, 1955, and was absent from duty for more than six days, probably for three or four weeks. A condition of his employment was that at the end of each year's unbroken service he would become entitled to a free issue of clothes and boots and to a period of leave; he would lose these privileges and have to start to earn them C afresh if there was a break in the year's service of more than six days. He returned to work on the 3rd January, 1956, without a medical certificate, which the evidence suggests rather than proves would have preserved his right to the privileges. It is not clear when he first began to work for the Railways or when he found out that the privileges had been postponed by his absence from work; the evidence makes it D probable that he only learned about the postponement effect of his absence from work a few days, or perhaps a week or two, before he committed the first crime. The European ganger under whom he worked stated in evidence that he did not seem to understand how it came about that his enjoyment of the privileges was being postponed while others E who started working after him had already been granted the same privileges.

BEYERS, J., remarked that it was unfortunate that the appellant had laboured, perhaps unnecessarily, under a grievance which might by somewhat more sympathetic handling have been removed. The learned Judge said that the appellant had clearly not understood why he was being F treated in this way and that no-one had taken the trouble to explain the position to him; had that been done the learned Judge thought that the crimes might never have been committed.

But the learned Judge said that the appellant's sense of grievance in no way excused his commission of these most serious crimes, which in his view called for a very long period of imprisonment to deter others and G to prevent the appellant from again being in a position to injure the whole community out of a desire to take revenge on individuals.

In his judgment granting leave to appeal BEYERS, J., emphasised the seriousness of the offence of derailing a train, with its grave danger to the train crew and, in the case of passenger trains, also to the H passengers. The learned Judge said that...