Rex v Butelezi

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and Kotzé JA
• Judgment Date: 18 December 1924
• Citation: 1925 AD 160
• Hearing Date: 09 December 1924
• Court: Appellate Division

Solomon, J.A.:

The applicant was convicted by the Native High Court of Natal of the murder of his wife, and he now asks the leave of this Court to appeal against his conviction. The case has been as fully argued on the application as it could have been; if the appeal itself had been before us, and we are in a position, therefore, to judge whether, if leave were granted, there would be any likelihood of the appeal Succeeding. We are satisfied, after a careful consideration of all the arguments which have been addressed to us in favour of the applicant by his counsel, that the appeal would be bound to fail, and in these circumstances, as no good purpose would be served by granting leave, we have come to the conclusion that the application should be refused.

It is common cause that the applicant did kill his wife, nor was it suggested that he was justified in doing so. The whole object of the application is to attempt, if leave were granted, to induce the Court of Appeal to reduce the verdict to one of culpable homicide, and to pass a sentence which would be appropriate to that crime in place of the sentence of death. Now the law on the subject is clear enough: the only difficulty is in applying the law to the facts. In the case of Rex v Ncobo (1921 AD 94) it was laid down that an intention to kill was an essential element in the crime of murder, and that "such an intention is not confined to cases where there is a definite purpose to kill: it is also present in cases where the object is to inflict grievous bodily harm, calculated to cause death, regardless whether death results or not."

Now the question whether or not in any case there was an intention to kill is one of inference from the relevant circumstances, and the contention on the part of the applicant is that the circumstances here negative such an inference. The argument was based upon two grounds: first, that the applicant had received such provocation that in the heat of passion he was deprived of the power of self control, and inflicted the injuries which resulted in death without any intention either of killing the deceased or of inflicting upon her such grievous bodily harm as was calculated to cause death; and secondly, that the nature and situation of the wounds inflicted shew that there was no intention to kill or to inflict serious bodily injury calculated to cause death. If either of these propositions can be established, then in law the applicant would have been guilty not of murder but of culpable

Solomon, J.A.

homicide. This follows indeed from what has already been stated that an intention to kill is an essential element in the crime of murder, so that where there is no such intention, the killing cannot amount to murder. On the question of what provocation would he sufficient to justify a Court in coming to the conclusion that there was no intention to kill, no hard and fast rule can be laid down. The question is one of fact to be deduced from the circumstances of the particular case under investigation. Even in English law, where the subject has been investigated far more fully than in the Roman-Dutch authorities, and where there seems to have been a tendency to lay down definite rules as to what kind of provocation would reduce the crime from one of murder to one of culpable homicide, the question has finally come to be regarded as one entirely of fact. Thus Stephen in his Digest of the Criminal Law, after setting forth a series of acts which may amount to provocation, sums up the position as follows: "Provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received: and in deciding the question whether this was or was not the case, regard must be had to the nature of, the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind." Our law on the subject is, as is pointed out by Gardiner and Lansdown in their treatise on Criminal Law, well expressed in sec. 141 of the Transkeian Penal Code of 1886 as follows: - "Homicide which would otherwise be murder may be reduced to culpable homicide, if the person who causes death does so in the heat of passion caused by sudden provocation. Any wrongful act or insult of such a nature as to be sufficient to deprive any ordinary person of the power of self control may be provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool. Whether any particular wrongful act or insult, whatever may be its nature, amounts to provocation, and whether the person provoked was actually deprived of the power of self-control by the provocation which he received shall be questions of fact." It would he difficult, I think, to improve

Solomon, J.A.

upon that statement of the law, which may be regarded as correctly laying down Our law upon this subject.

It now remains to apply these principles to the facts of the present case, which are shortly as follows: The applicant was a member of the police force in Natal, and the deceased was his wife, to whom he had been married, two years before her death, in accordance with native custom, such marriages being declared to be valid and binding under sec. 146 of the Natal Native Law Code of 1891. The applicant and his wife lived in Dundee in a small house consisting of only two rooms - a kitchen and a bedroom. In February of this year he was transferred from Dundee to a station in the Vryheid district. He had had occasion previously to have suspicions as to the fidelity of his wife, more particularly in regard to her intimacy with one James Zwane, a native living in Dundee, and before he left for his new station he took her to the police station, and in her presence requested the police, to see that she Aid not wander about with other men of be out after dark. After he had been at his new...