Rex v Fundakubi and Others

• Jurisdiction: South Africa
• Judge: Tindall JA, Centlivres JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 25 June 1948
• Citation: 1948 (3) SA 810 (A)
• Hearing Date: 18 June 1948
• Court: Appellate Division

Schreiner, J.A.:

In each of these five cases, which were argued together by counsel to whom the Court is indebted for their assistance, a question arises as to whether a belief in witchcraft, operating on the mind of a murderer and leading him to commit the crime, can in law constitute an extenuating circumstance so as to permit of the imposition upon him of a sentence other than the death sentence. In each of the cases a question of law was reserved under sec. 372 of Act 31 of 1917 in substantially the same form. The question in Fundakubi's case may be taken as representative: it reads:

'Whether the learned presiding Judge's ruling was correct, that accused's belief that the deceased had in some mysterious and supernatural manner been the cause of the deaths of accused's children and other relatives, could not reasonably be deemed an extenuating circumstance within the meaning of sec. 206(2) of the Act, and that consequently consideration of the question whether that circumstance constituted an extenuating circumstance could not be left to the determination of the court.'

It will be convenient at this stage to set out the terms of sec. 206 (2), the provisions of which will require consideration at a later stage of this judgment. The sub-section reads:

'When the accused is tried upon a charge of murder, the judge shall require the jury to state, if they find the accused guilty of murder, whether, in their opinion, there are any extenuating circumstances, and if they state that in their opinion there are extenuating circumstances, he may require them to specify those circumstances: Provided that any failure to comply with the requirements of this sub-section shall not affect the validity of the verdict or any sentence imposed as a result thereof.'

In the year 1938 the case of Rex v Biyana (1938, E.D.L. 310) was tried in the Kokstad Circuit Court, apparently, though this is not stated in the report, before a Judge and assessors. The case was one in which, as in the present cases, a murder had been committed by persons who believed that their victim had been practising witchcraft to their detriment: the report does not

Schreiner JA

indicate in what the conduct of the victim was supposed to have consisted, but presumably it was imagined that he or she had caused the death of relatives of the murderers by supernatural means. After the accused had been convicted LANSDOWN, J.P., made the following remarks, in general, on the subject of extenuating circumstances, and, in particular, on witchcraft as such a circumstance:

'I am not aware that any definition has been given by Parliament or the Courts of the term extenuating circumstances. In our view an extenuating circumstance in this connection is a fact associated with the crime which serves in the minds of reasonable men to diminish, morally albeit not legally, the degree of the prisoner's guilt. The mentality of the accused may furnish such a fact. A mind, (which) though not diseased so as to provide evidence of insanity in the legal sense, may be subject to a delusion, or to some erroneous belief or some defect, in circumstances which would make a crime committed under its influence less reprehensible or diabolical than it would be in the case of a mind of normal condition. Such delusion, erroneous belief or defect would appear to us to be a fact which may in proper cases be held to provide an extenuating circumstance . . . when we find a case like this, where there is a profound belief in witchcraft, and that the victim practised it to grave harm, and when we find that this has been the motive of the criminal conduct under consideration, we feel bound to regard the accused as persons labouring under a delusion which, though impotent in any way to alter their guilt legally, does in some measure palliate the horror of the crime and thus provide an extenuating circumstance.'

We were informed by Mr. van der Walt, who appeared for the Crown, that between 1938 and the present year the practice of treating a belief in witchcraft as a foundation for a finding of extenuating circumstances has on no occasion been departed from in the Eastern Districts Local Division, and no such departure in other divisions of the Supreme Court or the Natal Native High Court has been brought to our notice; but in the present series of cases PITTMAN, J.P., moved perhaps by an increase in the number of such crimes or by a re-assessment of the horrible evils flowing from a belief in and the practice of witchcraft, decided that it should be excluded from those matters which a jury or a court consisting of a Judge and assessors may take into account in considering whether there are extenuating...