R v Ndara

• Jurisdiction: South Africa
• Judge: Schreiner ACJ, Hoexter JA and Brink AJA
• Judgment Date: 22 August 1955
• Citation: 1955 (4) SA 182 (A)
• Hearing Date: 15 August 1955
• Court: Appellate Division

R v Ndara
1955 (4) SA 182 (A)

1955 (4) SA p182

Citation	1955 (4) SA 182 (A)
Court	Appellate Division
Judge	Schreiner ACJ, Hoexter JA and Brink AJA
Heard	August 15, 1955
Judgment	August 22, 1955

Flynote : Sleutelwoorde A

Criminal law — Arrest without a warrant — When sec. 32 bis of Act 31 of 1917, now sec. 26 of Act 56 of 1955, applicable — Offender running away from scene of crime — Witnesses of offence in pursuit B of offender — Offender not entitled to use violence against pursuers.

Headnote : Kopnota

Section 32 bis of Act 31 of 1917 - now section 26 of Act 56 of 1955 - only applies to what must be done after the arrest has been effected, and cannot be used to justify acts done in resistance to an arrest not yet effected.

R v Mzazi, 1954 (4) SA 204 (O) overruled.

The mere fact that a person who has committed a crime for which he may C be arrested without a warrant is running away from the scene of his crime pursued by those who saw him do it, does not change him into a threatened innocent with the right to use violence against those who are trying to effect his arrest.

Case Information

Appeal on questions of law reserved by LUDORF, J. The facts appear from the judgment of SCHREINER, A.C.J.

S. Berman, for the appellant (at the request of the Court). The attempted arrest was unlawful; see sec. 32 bis of Act 31 of 1917, R v Mzazi, 1954 (4) SA 204. Appellant was therefore entitled to offer reasonable resistance; see R v Karvie, 1945 T.P.D. at p. 162; R v Kleyn & Another, 1937 CPD at p. 293. Appellant's use of a knife was E reasonable in the circumstances. The necessary requisites of lawful self-defence were present; see Gardiner & Lansdown, South African Criminal Law & Procedure (5th ed., p. 1413); R v Molife, 1940 AD at p. 202; R v N'Thauling & Another, 1943 AD at p. 654. If the Court holds that appellant exceeded the bounds of lawful self-defence, appellant is, at the most, guilty of culpable homicide; see R. v. F Koning, 1953 (3) SA at pp. 232 - 3. On the basis that appellant's plea of self-defence fails, he is, in any event, guilty of no more than culpable homicide. His apprehension of physical injury at the hands of the deceased and the other pursuers, as found by the Court a quo, negatives the intent necessary to sustain a verdict of murder; see R v Thibani, 1949 (4) SA at pp. 730 - 2.

G Miss L. van den Heever, for the Crown: No arrest was effected by any of the Crown witnesses. The duty imposed by sec. 32 bis of Act 31 of 1917 to inform the arrested person of the cause of the arrest, does not exist prior to arrest. Cases such as those of Mzazi, Karvie and Kleyn, cited for appellant, are accordingly not applicable. The Crown has therefore negatived a sine qua non of the defence of self-defence, H namely that the attack upon appellant was unlawful; see Gardiner & Lansdown, South African Criminal Law & Procedure (5th ed., p. 1412). Consequently the question whether appellant exceeded the bounds of self-defence does not arise. Appellant's apprehension of physical injury at the hands of deceased and his friends does not negative the intent necessary to sustain a verdict of murder but in fact points strongly to an intention

1955 (4) SA p183

A to kill. Appellant has not rebutted the presumption that he intended the reasonable and probable consequences of his acts.

Berman in reply.

Cur adv vult.

Postea (August 22nd).

Judgment

B Schreiner, A.C.J.:

The appellant was convicted of murder by a Judge and assessors; extenuating circumstances were found and a sentence of seven years' imprisonment and six strokes was imposed. The learned Judge, LUDORF, J., reserved the question of law

'whether on the facts found the defence of self-defence was available to the accused';

he also granted leave to appeal on the ground that the Court

'erred in finding that the accused had acted with such reckless C disregard for the consequences of his actions as to justify the verdict of guilty of murder and not of culpable homicide.'

The facts as found by the Court may be...