Rex v Mlooi and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
• Judgment Date: 09 December 1924
• Citation: 1925 AD 131
• Hearing Date: 08 October 1924

Innes, C.J.:

The three appellants, together with one Swartbooi Mazibuku, were jointly indicted in the Standerton Circuit local division for the murder of a native named Zeeland. The evidence showed that Swartbooi, who was a native "doctor," strangled the deceased while he was drinking beer in the hut of a friend. Two of the appellants, Willem and Jack, were present when this was done; Kwaaiman had left shortly before. Swartbooi dragged the body out of the hut, and thereafter they all assisted him to dispose of it by sinking it in the Vaal River. The jury, guided by the ruling of the presiding judge on the legal question involved, returned a verdict of guilty, but at the instance of counsel for the three appellants a point of law was reserved in the following terms:

Whether the presiding judge was correct in charging the jury, that if the second, third or fourth accused, knowing that the first accused had murdered Zeeland, assisted the first accused to dispose of Zeeland's body in order that the first accused might escape being brought to justice, the second, third or fourth accused were guilty under our law of the crime of murder.

That question and another which will be found to arise out of it must now be considered.

The actual perpetrator of a crime is not necessarily the only person liable to punishment. Anyone who procures or assists the commission of the offence, and anyone who after it has been committed intervenes to help the perpetrator to evade justice is also liable to penal sanctions. That must be so, one would think, in every civilized system of law. The position of a man who associates himself with the crime beforehand is well settled. Whoever instigates, procures or assists the commission of the deed is a socius criminis, and may he indicted, convicted and punished as if he were the principal offenders (Rex v Peerkhan and Lalloo

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1906 T.S p.802; Rex v Jackelson 1920 AD p. 490). Nor does his liability depend upon the liability of the latter; as pointed out in Rex v Parry (1924 AD 401) it flows from his own part in the transaction, coupled with the existence of mens rea in relation to the crime itself. He who intervenes to assist a criminal after the event may conveniently be called in accessory after the fact, - not in the technical and restricted sense in which that term is used in the English law, but in an extended sense applicable to crimes in general. So used its meaning is well understood, and has received some degree of statutory recognition. (Act 48 of 1882 (c) sec. 61; Act 24 of 1886 sec. 81; Act 32 of 1916 sec. 149 (2) and (c).) Whether such an accessory may be properly regarded as a socius criminis and found guilty of the original crime, or whether, on an indictment as a principal offender, he may be convicted as an accessory, - these are questions which have never been settled by this Court. Indeed the second question was expressly left open in Matanda v Rex (1923, A.D., at p. 437).

They both arise for decision in the present appeal.

Upon principle it would seem clear that an accessory whose connection with a crime is (confined to assisting the criminal after the event cannot be a socius criminis. He cannot in truth be said to aid in the perpetration of an offence which was complete before he intervened; nor can mens rea exist in his case, in connection with a wrongful act previously accomplished. And that position is in my opinion recognized by Roman-Dutch law. No doubt there are expressions in the books which at first sight appear to lend colour to the view, that an accessory after the fact is a socius, and as such guilty of the main offence. But a closer examination of the authorities will show that the distinction between the crime committed by the socius, and the crime committed by the accessory was fully appreciated. It must be borne in mind, that speaking generally, the object of discussing the position of an accessory after the fact, was not so much to analyse the legal nature of his offence, as to determine the scale of his punishment, - a matter of great importance in view of the rigorous penalties then prevalent. This was not so in every case, for in Matthaeus (de Criminibus, Proleg. C. 1, sec. 11) there is a passage in which the author lays down as a general proposition that those who assist in a crime fall under one or other of three classes, - they who actively help, they who

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knowingly supply the means though not present at the perpetration, and they who after the event harbour or conceal, or aid the flight of the criminal. He promises a fuller discussion of the matter in connection with penalties, but I have not been able to trace the reference. Damhouder (Pract. in Criminiele Zaken, Cap. 121) under the heading "Van Medeplegers der Misdaden" points that he who furthers a crime by advice or assistance is punishable like the principal offender, - always provided that the Crime would not have been consummated without such help; if the assistance does not affect the commission of the crime then the punishment is more lenient. For, says he, the person who harbours a murderer after the crime has been committed, is not as guilty as he who has advised and aided the perpetration of the offence. Help in furtherance of a crime, he adds, may be given either before, during or after commission. (De hulpe dewelke tot een misdaad werd bijgebracht geschied of voor de misdaad, of in, of na, deselve.) Examples follow under each head, - the instance under the last being that of a man who accompanies the criminal in his flight in order to protect him, or who harbours him or prevents his arrest. Van der Linden (Inst., 2: 1, secs. 7-8), while regarding an accessory after the fact as in a sense a party to the crime (Na het plegen der misdaad kan men ook aan dezelve deel nemen, - b.v., door de misdadigers in te nemen en teverbergen, ens.) shows clearly that he is not in truth a socius; for he states definitely that those only are properly called socii, without whose co-operation the crime would not have been committed. Others who are connected with the crime are only abettors and are generally subjected to an exceptional (more lenient) punishment. Moorman (Misdaden, p. 583-4) expresses very definitely the view that an accessory after the fact is not a socius. He adopts the usual grouping and as an example of assistance rendered after the event, he instances the man who protects the criminal by hiding him or preventing his arrest. Such a person he says must be more leniently punished because he has under such circumstances no guilt in connection with the crime itself, nor is he a co-partner in it. (Om dat zoo iemand in zoo een geval, tot de misdaad geen schult heeft, noch ook een mededeelgenoot van de misdaad wordt.) Carpzovius (Hoogendorp, C. 80, secs. 30-1-2) is much to the same effect. He who after the commission of an offence assists the

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criminal may be regarded as furthering the crime; but he remarks that help thus given is not really assistance in the perpetration of the wrongdoing, and those guilty of it are not punishable to the full extent of the penalty applicable to principal offenders. Boehmer (Meditationes in, Const. Crim. Car) examines the position of an accessory after the fact more closely perhaps than any other writer, and his remarks (Art. 177, secs. 1 and 9 merit careful perusal. Partnership in crime in its wide sense he says covers a large area, including not only those who are the true cause of the offence, but those who in any way participate in it or its results, including mandators, conspirators, instigators and those who give their support to an offence already committed, who pay a reward or sell or conceal the stolen property. For one who, for any I reason associates himself with what has been done makes common cause with the actual delinquents. All such socii in the wide sense clearly engage in an illicit transaction and cannot escape punishment. But he points out that only those who are the cause of the crime are considered socii in the strict sense, those that is who in any way contribute to its consummation, - as opposed to those who without doing anything to bring about the crime, are yet guilty of reprehensible conduct in connection with it. And lie refers with approval to Kressius, who had sounded a warning against including as associates in crime those whose wrongful conduct was ex post facto merely. Boehmer (sec. 9) specially discusses the position of those who become accessories after the crime has been committed; (quot quot consummato sceleri accedunt); their liability to punishment arises not because of the act of a third person, but because of their deliberately associating themselves with it. He regards as such accessories after the fact those who hide the wrongdoers, or receive the stolen property, nisi asylo in antecessum promisso conspireverint, - nam hoc casu sunt vera causa sceleris; illo vero tantum damni vel periculi ex crimine nati. Read in the light of his earlier remarks the qualification is most significant. A socius in the proper sense is one whose assistance is a cause of the crime; he who accedes after the crime has been completed by concealing the criminal is a socius if his assistance was the result of an arrangement come to with the perpetrator beforehand; otherwise he remains a mere accessory. And Quistorp (secs. 57-8) is of the same opinion. A man is a socius, he

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says, who shelters a thief in accordance with a prior arrangement; not otherwise, though he is punishable in the latter event at the discretion of the judge. It is unnecessary to make further reference to the books. Enough has been said to show the weight of authority in our law which recognizes the distinction between the guilt of a socius who assists the perpetrator of a crime beforehand or at the time, and the guilt of an accessory who only assists him afterwards; and...