Rex v Britz
Jurisdiction | South Africa |
Judge | Watermeyer CJ, Schreiner JA and Fagan AJA |
Judgment Date | 01 June 1949 |
Citation | 1949 (3) SA 293 (A) |
Hearing Date | 06 May 1949 |
Court | Appellate Division |
Rex v Britz
1949 (3) SA 293 (A)
1949 (3) SA p293
Citation |
1949 (3) SA 293 (A) |
Court |
Appellate Division |
Judge |
Watermeyer CJ, Schreiner JA and Fagan AJA |
Heard |
May 6, 1949 |
Judgment |
June 1, 1949 |
Flynote : Sleutelwoorde
Criminal procedure — Defence relying upon provisions of section 44 of Act 31 of 1917 — On whom onus lies to prove circumstances justified action taken.
Headnote : Kopnota
A person who has killed another and seeks to use the very special protection afforded by section 44 of Act 31 of 1917 has to prove, by a balance of probabilities, the circumstances specified in the section, as pre-requisites to immunity.
Case Information
Appeal on questions of law reserved by DOWLING, J. The nature of the questions reserved appears from the judgment of SCHREINER, J.A.
1949 (3) SA p294
J. P. van den Berg (at the request of the Court), for the accused: It is the duty of the presecution to prove an accused person's guilt subject to matters as to the defence of insanity and subject also to any statutory exception. See Woolmington v Director of Public Prosecutions (1935, A.C. 462); Scoble's Law of Evidence in South Africa (2nd ed., p. 73); Rex v Ndhlovu (1945 AD 385). If in the absence of such an exception, sec. 44, Act 31 of 1917 is construed as placing the onus of proof upon the accused, then a legal position will be created which may have been our law prior to 1945, but which is so no more; cf. Rex v Wallendorf (1920 AD 383). The failure of an accused person to explain when an explanation may fairly be expected must not be confused with non-discharge of onus; from the lack of acceptable explanation the Court may infer the guilt of the accused, but there is no duty upon him to explain; cf. Rex v Ndhlovu (supra, p. 386). Reference to the exception in the case of insanity does not support a similar exception with regard to sec. 44; see Rex v Zulch (1937 TPD 400); Scoble (supra, p 33). The wording of sec. 44 creates a presumption in favour of the accused. An interpretation along the lines of sec. 127 (2) (b) of the Code is untenable. A comparison with sec. 319ter shows how sec. 44 would have been formulated had it been the intention to create an exception. If the onus to prove is upon the accused, sec. 44 is both unnecessary and dangerous from a procedural point of view to people doing their required duty, a position that could never have been envisaged by the Legislature.
G. P. van Rhyn, for the Crown: The onus is upon the accused to show on a balance of probabilities that all the requirements of sec. 44 (1) have been satisfied; the statute creates a special defence. In the Roman-Dutch Law a thief caught in the act could be killed, although is violence was not used by the fugitive, no one arresting him could kill him; cf. Moorman and Van Hasselt, Misdaden en der Selven Straffen (2nd ed., pp. 157 - 8); and in English Law a 'reasonable suspicion' is not sufficient to justify the killing of a private person; see Russell, Crimes (9th ed, Vol. 1., pp. 727 - 8). The statute itself creates the defence in question with the intention that the onus shall rest on the person who kills; Ord. 2 of 1837 read with sec. 15, Ord. 73 of 1830 (Cape) was substituted by sec. 44 (1), Act 31 of 1917; see sixth schedule, Act 31 of 1917; there is a close connection between the words used in sec. 1, Ord. 2 of 1837 (Cape) and those used in sec. 44 (1), Act 31 of 1917; see Gardiner and Lansdown. South African Criminal Law and Procedure (3rd ed., Vol.
1949 (3) SA p295
II, p. 1006); Cape Ordinances 2 of 1837 and 73 of 1830 placed the onus on the accused; see Reg v Scheepers (1869, B. at pp. 181 - 2); that onus was retained in sec. 44 (1), Act 31 of 1917, which has the same wording as the Ordinances, by reason of its interpretation in Rex v Hartzer (1933 AD at 317 - 8) and Rex v Manuel Karichindo (1930, S.-W.A. at 48) and by reason of the intention of the Legislature that the defence provided by the sub-section should only avial an accused person in exceptional cases and in special circumstances; see Rex v Hartzer (supra, at p. 310). The defence is a special defence and must be considered on the same basis as that of a defence of insanity, namely, as an exception; see Rex v Ndhlovu (1945 AD at p. 387), Rex v Kaukakani (1947 (2), S.A.L.R. at p. 823); Rex v.Smit (1906, T.S. 853). If the onus rests on the accused he must discharge it by balance of probabilities; see Rex v Kaukakani (supra), In re Rex v Bolon (1941 AD 346); if the accused leaves the Court in doubt he does not discharge the onus.
van den Berg, in reply.
Cur adv vult.
Postea (June 1st).
Judgment
Schreiner, J.A.:
The accused was convicted of cuipable homicide by a Judge and assessois and a fine of £20 was imposed upon him. After passing sentence the learned Judge, DOWLING, J., of his own motion reserved two questions of law for the consideration of this Court, under the provisions of sec. 372 of Act 31 of 1917. The nature of these questions will appear more clearly if I postpone setting them out until the facts have been briefly recited but it may be premised that the questions involve the placing of the burden of proof in a case where the accused has killed a person fleeing or resisting arrest and where sec. 44 of Act 31 of 1917 is relied upon by the defence.
The accused is a school master who lives in Potchefstroom near the Normal College Hostel where young women students reside. Some of the students also live in houses near to the hostel and near to the house of the accused. He said in evidence that assaults had taken place in the neighbourhood and some of the women students had asked him to provide them with protection at night. At about 10.30 p.m. on the night in question the accused
1949 (3) SA p296
Schreiner JA
was awakened by his wife, who said, 'hoor hoe rand hulle die meisies aan; gaan help'. He ran out, barefoot, in his pyjamas with a loaded single barrel shot-gun and turned the corner from his street into another, Esselen Street, where at the time the deceased, a young native, was engaged in assaulting a native servant girl. This girl had shortly before been walking with another girl when the deceased came up and, after unsuccessfully inviting her to come to his room, seized her and tripped her so that she fell; as she lay on the ground he kicked her either by way of preparation for raping her or in anger at her refusal to accompany him. The assaulted girl was crying for help, which the accused heard as a continuous frightened screaming. The street lights were on and when the accused came round the corner he saw that an assault of some kind was taking place about seventy or eighty yards up the street but he could not see whether the victims were Europeans or natives. At this juncture the female companion of the assaulted girl called out that the police were coming and the deceased left the girl and came running down the pavement towards the accused. He reached a point which was only twelve yards from the accused and then turned and ran back. As the deceased was running away from him the accused shot him in the back and killed him, his body being found about twenty yards from where the accused stood when he fired the shot. The accused said in evidence that he twice called upon the deceased to stop or he would shoot. His evidence is in this respect unsupported but was apparently accepted by the court. According to his account...
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