R v Nsele

• Jurisdiction: South Africa
• Judge: Schreiner JA, Van Den Heever JA and Fagan JA
• Judgment Date: 08 March 1955
• Citation: 1955 (2) SA 145 (A)
• Hearing Date: 22 February 1955
• Court: Appellate Division

Schreiner, J.A.:

The facts appear from the judgment of my Brother VAN DEN HEEVER. The trial Court accepted the evidence of the Crown witnesses, and rejected that of the appellant; no sufficient reason was advanced for disagreeing with these findings. On the Crown evidence it G is clear that the appellant and Philip were engaged upon a joint robbery and that the appellant knew that Philip was armed with a revolver. The question whether he knew that it was loaded was not directly investigated but, so far from there being any suggestion in his evidence that he had any reason to doubt that it was loaded, he stated in cross-examination that he jumped nearer to Philip when the latter H produced the revolver, in order to stop him from firing. There is thus no reason to doubt that he knew that Philip had a loaded revolver. Nor is there reason to doubt that, to his knowledge, the revolver at least might be used in any way that might prove to be necessary to enable them to achieve their purpose of obtaining money to pay their fare to Eshowe and to enable them also to avoid arrest. I agree with

Schreiner JA

VAN DEN HEEVER, J.A., that in all probability they relied upon the revolver to achieve their dual purpose; without some lethal weapon with which at least to terrify those who might be expected to join in trying to arrest them they could hardly hope to succeed.

A difficulty I have had in the case arises from the fact that in his A judgment the presiding Judge relied upon what he called the rule in Garnsworthy's case, 1923 W.L.D. 17. The passage usually quoted from the judgment of DOVE WILSON, J.P., in that case is set out in the judgment of VAN DEN HEEVER, J.A. It has been very widely used in trial Courts in the Union since the time when it was uttered and in this Court too it has been referred to on various occasions without doubt being expressly B cast upon its correctness. But, as VAN DEN HEEVER, J.A., points out in his judgment, difficulty may arise from the portions of the statement in which DOVE WILSON, J.P., says that the participants other than the actual doer of the deed will be liable

C 'if what was done was what they knew or ought to have known would be a probable result of their endeavouring to achieve their object',

and

'if what is done is just what anybody engaging in this illegal combination would naturally, or ought naturally to know would be the obvious and probable result of what they were doing'.

It is to be noticed that, apart from the two phrases which I have italicised, the two quoted portions of the statement are not couched in D identical terms, the second introducing the element of obviousness. If a result is said to be just what anybody in the circumstances in question ought naturally to know would be the obvious and probable result, this comes very near to saying that a person in those circumstances must have foreseen at least that the result might come about.

It should be observed, too, that DOVE WILSON, J.P., speaks of a person E being 'liable' or 'responsible', but, although the case with which he was dealing was a murder case, his language was quite general and not in terms restricted even to homicides. The learned JUDGE-PRESIDENT was not concerned at that stage to investigate whether the liability or responsibility, if it was for homicide, was for murder as opposed to F culpable homicide, the application of common purpose to which crime was mentioned in Rex v Geere & Others, 1952 (2) SA 319 (AD).

But at the end of his judgment DOVE WILSON, J.P., says,

'Now there is this further consideration that it is obvious that at the very latest everybody who was there at the time of the first exchange of shots must have known what the purpose of that expedition was. It is not G a case of this shooting being merely one of those things which they ought to have known would result. It was a thing which they did know had resulted and as rational men, they must be taken to have known that, as a consequence of that - as an almost inevitable consequence death might ensue. It is impossible, therefore, for any man who was there at the latest at the time of the first exchange of shots, to escape the imputation of knowledge of the full and fatal extent of the operations in which he took part.'

This passage supports the view that the Special Criminal Court in H Garnsworthy's case was not satisfied to find a man guilty of murder only because he ought to have known that a killing by his companions might ensue; it apparently required to be convinced that he must actually have known that there was a risk of such killing. In the circumstances of that case the risk was a grave one, and that was

Schreiner JA

expressly mentioned in the judgment, but, provided that the risk must have been, and, therefore, by inference was, present to the mind of...