Rex v Mbombela

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 24 April 1933
• Citation: 1933 AD 269
• Hearing Date: 19 April 1933
• Court: Appellate Division

De Villiers, J.A.:

The appellant was tried by jury, and found guilty, of the murder of a native child about nine years old. The trial took place at Butterworth. The charge was laid under the Native Territories Penal Code (Act 24 of 1886), which contains a definition of the crime of murder. It appears from the evidence that the accused is a native living in a native kraal, and that he is between 18 and 20 years of age, and that his intelligence is "rather below the normal." There is, however, no suggestion that he is so mentally defective as to be exempt from ordinary criminal liability (see. 26 of the Penal Code defines "Insanity.") Now on a certain day it happened that some native children were outside a native hut which they supposed to be empty, and through a chink of the door they saw "something that had two small feet like those of a human being." They were frightened at this phenomenon, and called the accused. The accused came, and when he saw the small feet he came to the conclusion that there was a "Tikoloshe" in the hut, that is to say, an evil spirit. There is evidence of a widespread native superstition according to which there is a sort of evil spirit which occasionally assumes the form of a little oldish man with small feet. A human being who looks one of them in the face, is doomed to death. The

De Villiers, J.A.

accused being satisfied that there was a "tikoloshe" in the hut, went to fetch a hatchet. He then entered the hut, and struck some blows with the hatchet at the small form which he saw standing there in the halflight. On dragging out the body he found that he had killed a child, who was his nephew. In these circumstances the presiding Judge charged the jury that it was clear on the evidence that the accused killed the deceased in the bona fide belief that the thing which was in the hut was an evil spirit ("tikoloshe"), and not a human being; but he also directed them that that was not sufficient, and that the accused had further to satisfy the jury that his belief was reasonable, that is to say, that it was a belief which any reasonable person of his age would entertain under the circumstances. On this part of the Judge's summing up the following question was reserved for this Court under sec. 372 of the Criminal Procedure Code: "Whether the learned Judge was correct in directing the jury that in judging whether the accused's belief that he was killing an evil spirit was a reasonable belief, the standard they must apply was not that of an ordinary 18-year-old native living at home in his kraal, but that of a reasonable person of his age."

Now the crime of murder is thus defined in sec. 140 of the Penal Code: "Culpable homicide becomes murder in the following cases: (a) If the offender means to cause the death of the person killed. (b) If the...